FRIENDS OF BUCKINGHAM; CHESAPEAKE BAY FOUNDATION, INCORPORATED, Petitioners, v. STATE AIR POLLUTION CONTROL BOARD; RICHARD D. LANGFORD, Chair of the State Air Pollution Control Board; VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY; DAVID K. PAYLOR, Director, Virginia Department of Environmental Quality, Respondents, ATLANTIC COAST PIPELINE LLC, Intervenor.
No. 19-1152
United States Court of Appeals for the Fourth Circuit
January 7, 2020
PUBLISHED
Amici Supporting Petitioners.
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JOSEPH SCRUGGS; GERALD WASHINGTON; CRAIG WHITE,
Amici Supporting Respondents/Intervenor.
On Petition for Review of a Decision of the State Air Pollution Control Board and the Virginia Department of Environmental Quality. (Permit No. 21599)
Argued: October 29, 2019
Decided: January 7, 2020
Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
Petition for review granted; vacated and remanded by published opinion. Judge Thacker wrote the opinion, in which Chief Judge Gregory and Judge Wynn joined.
ARGUED: David L. Neal, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina; Jon Alan Mueller, CHESAPEAKE BAY FOUNDATION, INC., Annapolis, Maryland, for Petitioners. Martine Elizabeth Cicconi, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondents. Elbert Lin, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Intervenor. ON BRIEF: Gregory Buppert, Charmayne G. Staloff, SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia, for Petitioner Friends of Buckingham. Margaret L. Sanner, CHESAPEAKE BAY FOUNDATION, INC., Annapolis, Maryland, for Petitioner Chesapeake Bay Foundation, Inc. Mark R. Herring, Attorney General, Donald D. Anderson, Deputy Attorney General, Paul Kugelman, Senior Assistant Attorney General, Toby J. Heytens, Solicitor General, Michelle S. Kallen, Deputy Solicitor General, Brittany M. Jones, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondents. Harry M. Johnson, III, Timothy L. McHugh, Aaron C. Alderman, Richmond, Virginia, Stuart A. Raphael, HUNTON
Friends of Buckingham and the Chesapeake Bay Foundation, Inc. (collectively, “Petitioners“) challenge the Virginia Air Pollution Control Board (“Board“)‘s award of a permit for construction of a compressor station on behalf of Intervenor Atlantic Coast Pipeline, LLC (“ACP“) in the historic community of Union Hill in Buckingham County, Virginia (the “Compressor Station“). The Compressor Station is one of three such stations planned to support the transmission of natural gas through the ACP’s 600-mile pipeline (the “Pipeline“), which is projected to stretch from West Virginia to North Carolina.
Petitioners filed this petition for review against the Board and its chairman, and the Virginia Department of Environmental Quality (“DEQ“) and its director (collectively, “Respondents“), raising two assignments of error. First, Petitioners contend the Board erred in failing to consider electric turbines as zero-emission alternatives to gas-fired turbines in the Compressor Station. Second, they contend the Board erred in failing to assess the Compressor Station’s potential for disproportionate health impacts on the predominantly African-American community of Union Hill, and in failing to independently evaluate the suitability of that site.
As explained below, we agree with Petitioners and vacate and remand to the Board.
A.
Legal Background
This petition for review is governed by a complex intertwining of local, state, and federal laws and regulations. Therefore, we first set forth the law at play before turning to the facts at hand.
1.
The Clean Air Act
a.
National Air Quality Standards
Pursuant to the Clean Air Act (“CAA“),
There are both primary and secondary NAAQS. The primary NAAQS for a given pollutant are the acceptable concentrations of pollutants in the ambient air required to
Once set by the EPA, the NAAQS are then implemented by nationwide limitations on mobile sources like vehicles, and on new or modified stationary sources; and, relevant here, by state implementation plans (“SIP“s), which implement the NAAQS through emission limitations on stationary and mobile sources. See
There are two types of stationary sources: major emitting sources and minor emitting sources. A major source is one that has the “potential to emit two hundred and fifty tons per year or more of any air pollutant,” and a minor source is one that falls below that benchmark.
b.
Best Available Control Technology (“BACT“)
The CAA also requires major source facilities (but not minor ones) to be subject to “the best available control technology [BACT] for each pollutant subject to regulation under this chapter emitted from, or which results from, such facility.”
an emission limitation based on the maximum degree of reduction of each [regulated] pollutant . . . emitted from or which results from any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of each such pollutant.
c.
“Redefining the Source”
Control technologies “are those technologies that have ‘a practical potential for application to the emissions unit and the regulated pollutant under evaluation.‘” Helping Hand Tools v. U.S. Envtl. Prot. Agency, 848 F.3d 1185, 1190 (9th Cir. 2016) (quoting EPA, New Source Review Workshop Manual, at B.5 (1990)). Generally, under federal law the failure to consider available alternative control technologies (also referred to as “control alternatives“) in BACT analysis “constitutes clear error.” Id. at 1194. However, the EPA “does not have to consider [a] control alternative[]” -- even if it is effective at reducing emissions -- if it “redefines the source.” Id. “[A] control alternative redefines the source if it requires a complete redesign of the facility. In a classic and simple example, a coal-burning power plant need not consider a nuclear fuel option as a ‘cleaner’ fuel because it would require a complete redesign of the coal-burning power-plant.” Id.
“Redefining the source” in the federal administrative world is applicable to projects certified under the prevention of significant deterioration (“PSD“) program. The PSD
The “redefining the source” doctrine was developed by the EPA to resolve an ambiguity in the CAA. Specifically, some hearing officers and courts had recognized the “tension between” two CAA requirements in the PSD program. In re Prairie State Generating Co., 13 E.A.D. 1, 2006 WL 2847225, at *16 n.15 (Aug. 24, 2006), aff’d sub nom. Sierra Club v. Envtl. Prot. Agency, 499 F.3d 653 (7th Cir. 2007) (citing
The EPA has clarified that, under the redefining the source doctrine, BACT review depends on a company’s proposed plans and purpose. Thus, for the PSD program, a permitting agency must consider all means of lowering emissions, as long as those means would not “regulate the applicant’s objective or purpose for the proposed facility” or require a redesign of a proposed facility. Helping Hand Tools, 848 F.3d at 1195; see also Sierra Club, 499 F.3d at 654 (“EPA’s position is that [BACT] does not include redesigning the plant proposed by the permit applicant” (citing EPA, New Source Review Workshop Manual: Prevention of Significant Deterioration and Nonattainment Area Permitting B.13 (1990))); John-Mark Stensvaag, Preventing Significant Deterioration Under the Clean Air Act: The BACT Determination – Part I, 41 Envtl. L. Rep. News & Analysis 11101, 11112 (2011) (“EPA will not insist on a BACT technology that would redefine the permit applicant’s facility.“). For example, “[w]hen a fuel source is co-located with a facility, EPA need not consider in the BACT analysis fuel sources that are not readily available, because it would redefine the source.” Helping Hand, 848 F.3d at 1195. Therefore, in the context of major source PSD permits, the EPA does not have to consider control alternatives that would “redefine the source” in a given project.
2.
Virginia Law
a.
Virginia’s State Implementation Plan
The CAA “establishes a program of cooperative federalism that allows the [s]tates, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs.” Virginia v. Browner, 80 F.3d 869, 883 (4th Cir. 1996) (internal quotation marks omitted). The federal NAAQS are merely “[pollutant] concentration ceilings,” In re Prairie, 2006 WL 2847225, at *5, that “allow[] an adequate margin of safety,”
Virginia’s SIP is set forth predominantly in Title 9 of the Virginia Administrative Code. New minor stationary sources with emissions above a certain level must receive an air permit issued pursuant to Article 6 of Chapter 80 of the Virginia Administrative Code (“Permit” or “Article 6 Permit“) by DEQ or the Board. See
Pursuant to Virginia’s SIP, all new stationary sources, whether major or minor, are subject to BACT review. See
Virginia’s BACT relies on emission reduction per emissions unit via production processes, methods, or techniques. See
b.
The Commonwealth Energy Policy
In addition to the SIP, Virginia law also contains a Commonwealth Energy Policy, which “[e]nsure[s] that development of new, or expansion of existing, energy resources or facilities does not have a disproportionate adverse impact on economically disadvantaged or minority communities.”
c.
Virginia’s Regulatory Structure
The Board is a seven-member citizen board selected by the Governor “from the Commonwealth at large on the basis of merit without regard to political affiliation.”
(i) the verbal and written comments received during the public comment period made part of the record, (ii) any explanation of comments previously received during the public comment period made at the Board meeting, (iii) the comments and recommendation of [DEQ], and (iv) the agency files.
3.
Local Permitting
Finally, before ACP can construct a compressor station in Buckingham County, it is required to obtain a separate special use permit (“SUP“) from the Buckingham County Board of Supervisors. See
B.
Factual and Procedural History
Because natural gas transported through the Pipeline must remain pressurized, ACP sought to construct three compressor stations in different locations along the Pipeline -- one in West Virginia, one in Virginia (the Buckingham County location at issue here), and one in North Carolina.
ACP claims the Compressor Station site in Buckingham County is “the only feasible location” because: (1) “it allows the ACP to interconnect with the existing Transco
As stated above, on September 17, 2015, ACP filed an application with DEQ for a Permit to construct and operate the Compressor Station. DEQ deemed the application complete in the summer of 2018.
1.
Public Comments and Hearings
After the Permit application was complete, DEQ provided several comment periods. On August 16, 2018, at the beginning of the first 30-day comment period, DEQ held an informational session for the residents of Buckingham County. DEQ representatives stated that, before the Board would take final action on the permit application, it would consider all comments. They also assured all public commenters that they could address the Board at a public meeting. After the comment period closed, DEQ conducted a public hearing on September 11, 2018, and heard proposed comments. Almost 200 people attended, and 60 people made oral comments. DEQ extended the comment period by 10 days. Over the 40
On November 8, 2018, the seven-member Board held its first public hearing. DEQ presented its summary of public comments from the 40 day comment period for the Board’s consideration. These comments included concerns such as whether the “[f]acility should use electric turbines” instead of natural gas turbines, criticism that EPA’s “[a]ir quality standards [are] not adequately protective,” and “[e]nvironmental [j]ustice” and “[s]ite suitability issues.” J.A. 1584. More than 80 people spoke at the hearing, and the Board made the following statements to and inquiries of DEQ officials:
- “[W]hat can you tell me about the demographics of Union Hill? I’d like to know about the community. I’d like to know about the race, the age distribution, anything you know about the health status of the community.” J.A. 2260.
- “I thought [DEQ presented] a very narrow construction of what environmental justice means, and the reason I feel it’s important for me to point that out is because I do think that site suitability and environmental justice are wrapped up together.” Id. at 2344.
- “[H]ow is it that DEQ interprets [the Commonwealth Energy Plan] with respect to its obligations to consider environmental justice?” Id. at 2285.
Based on these concerns, the Board deferred consideration of the Permit. One week later, Governor Ralph Northam removed two Board members who had voiced concerns about the disproportionate harm to Union Hill and replaced them with two new members. See Patrick Wilson, Northam Removes 2 Members from Air Board Before Buckingham Project
2.
DEQ’s Recommendations and Responses
Throughout the permitting process, and relevant to the issues presented here, DEQ provided the following recommendations and responses to the public and the Board:
- Email from Southern Environmental Law Center to Patrick Corbett at DEQ (September 6 and 10, 2018):
Question: “In the course of its BACT analysis, did DEQ consider electric motor turbines (which would have zero emissions at the Compressor Station) as an alternative to gas fired turbines[?]”
DEQ Answer: “No, electric compressors were not considered as they would redefine the source.” J.A. 1381.
- Comment and Response (Oct. 24, 2018):
Comment: “Electric turbines must be considered as an alternative to natural gas combustion turbines to ensure the ‘maximum degree of emission reduction for any pollutant.‘”
DEQ Response: “The application of BACT for Article 6 reviews the affected emission unit(s) that is part of the facility proposed by the source. DEQ has determined that wholesale
replacement of a natural gas turbine (the affected emission unit) for an electric turbine (a completely different process unit with a different energy source) constitutes redefinition of the source and is not considered in Virginia’s BACT determination for [the Compressor Station]. DEQ reviewed permits for this industry type and has determined that the BACT limits for NOx in the draft permit are the most stringent limits for natural gas compression turbines. The draft BACT determination for NOx remains unchanged.” J.A. 2178 (emphasis supplied) (footnote omitted). In a footnote, DEQ states, “Natural gas also provides a consistent source of fuel as the pipeline operation provides the fuel needed. Electricity would be subject to grid issues such as power outages and other similar interruptions that would hamper operations at the site.” Id. n.17. - DEQ recommendation on site suitability (October 2018): “On January 5, 2017, the Buckingham County Board of Supervisors held a public hearing and then approved a Special Use Permit for the construction and operation of the compressor station. ACP must operate in compliance with the County’s approval as well as any other ordinances or regulations related to land use.
A DEQ site evaluation was conducted on October 31, 2017. The land around the site is forested, with rolling terrain. The area is sparsely populated. No other existing air pollution sources were noted within one mile of the proposed site. The nearest school is approximately 9 miles from the site, with the closest hospital/nursing home located approximately 17 miles away.
Based on a review of the application, the air quality analysis, and resulting draft permit, the proposed facility complies with all regulatory requirements. Air Quality modeling results indicate compliance with all applicable ambient air quality standards. Therefore, the site is deemed suitable from an air quality perspective.” J.A. 1794.
- DEQ Official Presenting to Board (Nov. 9, 2018): “Electric turbines. Our response to electric turbines is that we view the proposed emission, there’s a concept called redefining the source.
Businesses have to be able to determine the activity that they’re doing and how they’re going to do it. And DEQ doesn’t determine how people make widgits. We look at their proposed emissions and emission units to determine how we can reduce those emissions.
So we can require them to make alterations to their system, like, say, adding catalytic reduction.
So selective catalytic reduction requires a different design than, you know, the straight compression turbine controls, but it’s a minor change to the design.
Replacing a natural gas-fired turbine with an electric turbine is a wholesale replacement, and it’s inappropriate in redefining in the source.” J.A. 2237–38 (emphasis supplied).
- Conclusions reached by DEQ, as presented to the Board at December 19, 2018 meeting:
- “Air modeling indicated emissions from [the Compressor Station] will not harm human health.”
- “Area surrounding [the Compressor Station] contains fewer existing air pollution sources and far fewer than Virginia average.”
- “Data indicate environmental risks faced by residents of area surrounding [the Compressor Station] overall are lower than those faced by residents of Virginia as a whole.”
- “No data indicate [the Compressor Station] would impose any disproportionate adverse environmental or health impacts on surrounding area when compared to Virginia as a whole.” J.A. 2455.
- DEQ official, noting the disparity in the demographic data regarding environmental justice, stated, “regardless of the percentage of the minority population, air modeling indicates that emissions from the proposed Buckingham Compressor Station will not harm human health.” J.A. 2546.
The Board’s Decision
On January 8, 2019, the Board held its final meeting. A DEQ official made a brief presentation, again stating that “[r]egardless of the demographics of the area surrounding the compressor station, [it] will not cause a disproportionate adverse impact to the community” for two reasons: first, the residents surrounding the Compressor Station site “are already breathing air that is cleaner than the air breathed by 90% of the residents of Virginia“; and second, although “air modeling does indicate . . . a slight increase in air pollution concentration [from the Compressor Station], the increase is slight.” J.A. 2905–06.
The same four members present at the December meeting6 voted unanimously on January 8, 2019, to adopt DEQ’s recommendation and approve the Permit. In doing so, individual Board members made statements on the record. Specifically, the Board Chairman stated, “For purpose of my review, I have assumed that [the community around the Compressor Station] may be an E[nvironmental] J[ustice] community.” J.A. 2923. Another member said the same. See id. at 2947 (“I . . . have assumed that the community at issue is an environmental justice community.“).
Petitioners filed this timely petition for review of the grant of the Permit. We possess jurisdiction pursuant to the
The parties dispute the proper standard of review. Petitioners believe we should review the Board‘s decision under the arbitrary and capricious standard of review that we normally employ when reviewing federal administrative agency actions.8
Agency action is arbitrary and capricious if the agency relies on factors that Congress did not intend for it to consider, entirely ignores important aspects of the problem, explains its decision in a manner contrary to the evidence before it, or reaches a decision that is so implausible that it cannot be ascribed to a difference in view.
Appalachian Voices v. State Water Control Bd., 912 F.3d 746, 753 (4th Cir. 2019) (internal quotation marks omitted). Further,
[i]n determining whether agency action was arbitrary or capricious, the court must consider whether the agency considered the relevant factors and whether a clear error of judgment was made. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Deference is due where the agency has examined the relevant data and provided an explanation of its decision that includes a rational connection between the facts found and the choice made.
Id. (internal quotation marks omitted).
ACP does not articulate how the standard for review of the agency‘s decision arising out of its findings of fact would be different under Virginia law, and we do not believe it would be.
If the decision under review involves an interpretation within the specialized knowledge of the agency and if the General Assembly has vested the agency with broad discretion to interpret and apply the relevant regulations, the agency‘s decision will be reversed only for arbitrary or capricious action that constitutes a clear abuse of the agency‘s delegated discretion.
Frederick Cty. Bus. Park, LLC v. Va. Dep‘t of Envtl. Quality, 677 S.E.2d 42, 44-45 (Va. 2009) (emphasis supplied); see also Northrop Grumman, 927 F.3d at 232 (“Under the [federal APA], an appellate court may only disturb the [agency]‘s decision if it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” (internal quotation marks omitted)). Both the federal and Virginia standards require courts to act where the agency‘s action was not “in accordance with law.” See
In our prior decisions reviewing Virginia Water Control Board permitting decisions, Appalachian Voices v. State Water Control Board and Sierra Club v. State Water Control Board, the state agency argued for a substantial evidence standard of review. Nevertheless, we applied an arbitrary and capricious standard of review, noting that even under a substantial evidence standard, the result would be the same. See Appalachian Voices, 912 F.3d at 753 n.1; Sierra Club, 898 F.3d 383, 403 n.13 (4th Cir. 2018). We are content to do the same here, especially because under Virginia law, a “reviewing court may set [an] agency action aside, even if it is supported by substantial evidence, if the court‘s review discloses that the agency failed to comply with a substantive statutory directive.” Browning-Ferris Indus. v. Residents Involved in Saving the Env‘t, Inc., 492 S.E.2d 431, 434 (Va. 1997); see also Envtl. Def. Fund, Inc. v. Va. State Water Control Bd., 422 S.E.2d 608, 612 (Va. Ct. App. 1992).
III.
A.
The Board‘s Failure to Consider Electric Motors
Petitioners assert that under Virginia‘s SIP, the Compressor Station is subject to BACT review because it is a minor emitting source and Virginia law requires such review of minor sources, even though the CAA does not. Respondents do not disagree with this statement. Then, Petitioners contend that the Board was required to evaluate BACT for each regulated pollutant emitted from the Compressor Station, but it failed to even consider a control technology that would eliminate almost all on-site pollution: electric motors. Specifically, Petitioners submit:
Electric motors, in place of gas-fired turbines, are an available control technology that would eliminate almost all of the on-site air pollution from the Compressor Station. [DEQ and the Board] refused to consider these zero-emission alternatives based on a misapplication of EPA‘s “redefinition of the source” doctrine, which EPA developed to address a specific statutory ambiguity in a section of the Clean Air Act that does not apply to this Permit.
Pet‘rs’ Br. 21-22. Even if the redefining the source doctrine applied, say Petitioners, the Board “made no effort” to determine if using electric motors would constitute such a redefinition of the source. Id. at 22.
Redefinition of the Source
The only rationale the Board could have ostensibly relied upon (via the Decision Statement‘s incorporation of DEQ‘s response to comments) for refusing to consider electric motors in its BACT analysis was that replacing gas-fired turbines with electric motors would constitute an impermissible “redefinition of the source.” J.A. 2178 (Resp. to Comments 33) (“DEQ has determined that wholesale replacement of a natural gas turbine (the affected emission unit) for an electric turbine (a completely different process unit with a different energy source) constitutes redefinition of the source and is not considered in Virginia‘s BACT determination” (emphasis supplied)). Review of the “whole record,”
Petitioners make three arguments on this point: first, if DEQ was referring to the federal EPA redefining the source doctrine, it is not applicable to the Compressor Station
2.
A state agency action survives our review if it “examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Appalachian Voices, 912 F.3d at 753 (alterations and internal quotation marks omitted); see also Frederick Cty. Bus. Park, 677 S.E.2d at
a.
Nowhere in DEQ‘s comments, recommendations, or the Board‘s Decision Statement can we find a reference to a case, regulation, other project, or common practice that would sufficiently explain what “redefining of the source” means under Virginia law. The EPA cautions that, even when applying the federal doctrine (which is actually laid out in regulations and case law, unlike the purported Virginia doctrine), “any decision to exclude an option on ‘redefining the source’ grounds must be explained and documented in the permit record, especially where such an option has been identified as significant in public comments.” PSD AND TITLE V PERMITTING GUIDANCE FOR GREENHOUSE GASES, EPA Manual at 27, https://www.epa.gov/sites/production/files/2015-07/documents/ghgguid.pdf (saved as ECF opinion attachment). There was no such explanation here. We -- and most importantly, the citizens of Virginia -- do not know what the Virginia redefining the source doctrine is, how it works, and how this project meets its requirements.
b.
Respondents and ACP have marshaled a host of post hoc justifications in an attempt to explain what DEQ meant when repeatedly using the phrase “redefinition of the source.” But “courts may not accept appellate counsel‘s post hoc rationalizations for agency action. It is well-established that an agency‘s action must be upheld, if at all, on the basis
ACP also contends that, buried in a footnote in DEQ‘s response to public comments (adopted by the Board in its Decision Statement), DEQ provides a separate and sufficient reason for rejecting the electric turbines. There, DEQ states, “Natural gas also provides a consistent source of fuel as the pipeline operation provides the fuel needed. Electricity would be subject to grid issues such as power outages and other similar interruptions that would hamper operations at the site.” J.A. 2178 n.17. Respondents also cite to FERC‘s environmental impact statement (“EIS“), which states that an electric turbine would require
These arguments fail. We have held that a permitting agency “may adopt FERC‘s EIS only if it undertakes ‘an independent review of the EIS’ and ‘concludes that its comments and suggestions have been satisfied.‘” Cowpasture River Pres. Ass‘n v. Forest Serv., 911 F.3d 150, 170 (4th Cir. 2018) (quoting
Finally, Respondents contend that we should essentially overlook any mention of redefining the source, and rather place emphasis on DEQ‘s statement that the natural gas turbines were the applicable “emission unit” under state law and that Virginia‘s BACT determination does not require “wholesale replacement” of an emission unit. See Resp‘ts’ Br. 40-41 (citing J.A. 2178). Further, they argue electric turbines are not “processes, methods, or techniques” and therefore, they are not considered “control technology” for purposes of BACT. Id. We decline to adopt these arguments.
In explaining its decision, an agency must be “clear enough that its path may be reasonably discerned.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (internal quotation marks omitted); see also Cirillo, 676 S.E.2d at 371-72. In analyzing
For these reasons, the Board‘s decision was arbitrary and capricious and unsupported by substantial evidence. As Petitioners point out, ACP‘s and Respondents’ arguments on appeal read as “convenient litigation position[s].” Pet‘rs’ Reply Br. 8. Nothing more. We vacate and remand for further explanation of reliance on the redefining the source doctrine, and/or why electric turbines are not required to be considered in Virginia‘s BACT analysis of the Compressor Station.
The Board‘s Health Risk and Site Suitability Assessment
Petitioners’ second argument is that the Board arbitrarily and capriciously decided issues of health risk and site suitability.
1.
Background
Union Hill is a historic community with a high population of African-Americans whose ancestors established the community in the aftermath of the Civil War. Community members founded the Union Hill Baptist Church, as well as the Union Grove Missionary Church, and have buried their dead there for generations. In 2015, ACP bought a neighboring 68.5-acre plot of land and chose that site for the placement of the Compressor Station.
According to the ACP permit application, the Compressor Station‘s four turbines, with a combined 58,162 horsepower, would burn gas 24 hours a day, 365 days a year. Together, the turbines’ combustion of gas accounts for 83% of the facility‘s projected nitrogen oxide emissions and 95% of its emissions of particulate matter (PM, PM2.5, and PM10), and also generates emissions of toxic materials such as formaldehyde and hexane. FERC determined that the Compressor Station will increase the area‘s amount of nitrogen oxide pollution and fine particle (PM2.5) pollution, and emit known carcinogens into the community. FERC likewise recognized that pollutants from compressor stations “are known to increase the effects of asthma and may increase the risk of lung cancer.” J.A. 2601 (footnote omitted).
The study indicated that about 84% of [Union Hill] residents are nonwhite, most of African-American descent -- a percentage far higher than the county-wide percentage of African Americans (34.7%). Of the 67 households for which a full set of responses exists, 42 (or 62.6%) are known descendants of formerly enslaved people from area plantations. Eight households reported unmarked slave and Freedmen graves on their property or nearby. An independent analysis found that the area within one mile of the proposed Compressor Station has a population density 51% higher than the county average -- and 77% higher than either A[CP] or DEQ identified in community profiles they prepared during the Compressor Station permitting process.
The Friends of Buckingham study also revealed a prevalence of health conditions consistent with national data showing higher rates of respiratory sickness among the African-American population. Thirty-five households reported pre-existing medical diagnoses, chiefly respiratory and heart conditions. Residents of Union Hill, including many elderly residents, reported suffering from chronic ailments including asthma, chronic obstructive pulmonary disease, chronic bronchitis and pneumonia, heart disease, and other conditions that would make them particularly susceptible to air pollution from the Compressor Station.
Pet‘rs’ Br. 10-11 (citations omitted).
2.
Health Impacts and Site Suitability
Petitioners contend that the Board (and to the extent its recommendations were adopted, DEQ), violated Virginia law by “failing to assess the Compressor Station‘s disproportionate health impacts on the predominantly African-American Union Hill
The Board in . . . approving . . . permits . . . , shall consider facts and circumstances relevant to the reasonableness of the activity involved and the regulations proposed to control it, including:
- The character and degree of injury to, or interference with, safety, health, or the reasonable use of property which is caused or threatened to be caused;
- The social and economic value of the activity involved;
- The suitability of the activity to the area in which it is located; and
- The scientific and economic practicality of reducing or eliminating the discharge resulting from such activity.
We conclude that the Board thrice erred in performing its statutory duty under sections
a.
Environmental Justice
“As Justice Douglas pointed out nearly [fifty] years ago, ‘[a]s often happens with interstate highways, the route selected was through the poor area of town, not through the area where the politically powerful people live.‘” Jersey Heights Neighborhood Ass‘n v. Glendening, 174 F.3d 180, 195 (4th Cir. 1999) (King, J., concurring) (quoting Triangle Improvement Council v. Ritchie, 402 U.S. 497, 502 (1971) (Douglas, J., dissenting)); see also Nicky Sheats, Achieving Emissions Reductions for Environmental Justice Communities Through Climate Change Mitigation Policy, 41 Wm. & Mary Envtl. L. & Pol‘y Rev. 377, 382 (2017) (“There is evidence that a disproportionate number of environmental hazards, polluting facilities, and other unwanted land uses are located in communities of color and low-income communities.“). “The purpose of an environmental justice analysis is to determine whether a project will have a disproportionately adverse effect on minority and low income populations.” Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 541 (8th Cir. 2003). “Although the term ‘environmental justice’ is of fairly recent vintage, the concept is not.” Jersey Heights, 174 F.3d at 195 (King, J., concurring).
Of note, on August 16, 2018, Governor Northam‘s own Advisory Council on Environmental Justice recommended suspending the permitting decision for the
Indeed, under Virginia law, the Board is required to consider “character and degree of injury to . . . health,” and “suitability of the activity to the area.”
As explained below, it is clear to us that the Board‘s EJ review was insufficient, which undermines the Board‘s statutory duties and renders the Board‘s Permit decision arbitrary and capricious, and unsupported by substantial evidence.
b.
No Findings Regarding the Character of Local Population
To begin, Petitioners contend, “Despite access to a wealth of information, the Board failed to make any findings regarding the demographics of Union Hill that would have allowed for a meaningful assessment of the likelihood of disproportionate harm.” Pet‘rs’ Br. 51. We agree. The Board was presented with conflicting evidence about whether and
i.
Throughout the public comment period and public meetings, one of the main points of dispute was whether the Union Hill community could be deemed a “minority” EJ community. As noted by the Board and ACP, the Board deferred its vote twice in order to obtain more information on this issue. Yet in the end, it did not even bother to make a finding on this issue. Rather, at least two Board members “assumed” that Union Hill was an EJ minority community without performing further analysis on what that means.
The minority EJ community designation is important because, if Union Hill is considered a minority EJ community, then information about “African American populations hav[ing] a greater prevalence of asthma” and other health issues is an important consideration. J.A. 2373 (FERC analysis, relied upon by DEQ). For example, FERC‘s analysis in the EIS -- upon which DEQ originally relied -- outlined all the risks to African Americans from the Compressor Station, e.g., increased risk of asthma and lung cancer, and even noted that African Americans were an “especially sensitive” community for these conditions. Id. at 2372-73. But because the African American population around the Compressor Station did not “exceed the threshold[] for environmental justice populations,” it was of no moment. Id. at 2373; see also id. at 2372 (“None of the three census tracts within 1 mile of the [Compressor Station] are designated minority [EJ] populations [based on a methodology involving 2013 census data].“).
There are multiple pieces of conflicting evidence about the minority population of Union Hill in this record, presented to DEQ and the Board:
- FERC‘s analysis, which is based on 2013 census data, states that in Virginia, “minorities comprise 30.8 percent of the total population.” J.A. 2371. However, on December 9, 2018, DEQ told the Board that Virginia has an average 37% minority. See id. at 2536.
- FERC stated that “[n]one of the three census tracts within 1 mile of the [Compressor Station] are designated minority environmental justice populations.” J.A. 2372. But the Friends of Buckingham Study (also called the Fjord Study or Household Study) demonstrates that “the area surrounding the [Compressor Station] is clearly an environmental justice area for minority population.” Id. at 2545 (DEQ comments to the Board).10 Indeed, a September 2018 version of this Study found that, in an actual door-to-door household survey, minorities make up 83% of residents, with African Americans comprising around 62%. See id. at 2618. After more households were reached, in January 2019, the percentage of minorities increased to 83.5%. See id. at 2733 (77% of households responding).
- DEQ also presented an “EJSCREEN” study from the EPA that “found the minority population around the compressor station to be in the range of 37 to 39%.” J.A. 2545-46. Yet at an earlier presentation, a DEQ staff member had told the Board, “I wouldn‘t really rely on” EJSCREEN. Id. at 2261.
- There is yet another study called the “Environmental Systems Research Institute‘s Demographic and Income Profile Report”
(the “ESRI Report“), which ACP “recommended the [Board] utilize . . . as the best available information to determine the environmental justice components of the proposed Site.” J.A. 2853. This study, however, finds that minorities make up only 22-30% of the population “surrounding the proposed Site” with African Americans composing between 22-25%, but it compares this to a County percentage of 38% and 34%, respectively. J.A. 2854.
DEQ‘s final permit analysis submission to the Board says nothing further about EJ. And of course, the Board‘s decision is only one page long, says nothing about EJ or which stud(ies) it relied on, and even adds a provision in handwriting, professing that “[T]he Board does not adopt any legal views expressed by DEQ regarding the Board‘s authority under
The Board acted arbitrarily in failing to provide any explanation regarding the EJ issue, which makes its extensions of public comments and additional meetings ring hollow.
Moreover, under Virginia law, the Board‘s factfinding would fail under a substantial evidence standard of review because there is conflicting evidence in the record that the Board did not resolve. Virginia law is clear: “It is not unusual for there to be conflicting evidence in contested cases, and it is the job of the agency, as factfinder, to resolve those conflicts.” Virginia Ret. Sys. v. Blair, 772 S.E.2d 26, 32 (Va. Ct. App. 2015) (emphasis in original); see also Levine v. Arlington Med. Imaging, LLC, No. 0145-18-4, 2018 WL 5259252, at *5 (Va. Ct. App. Oct. 23, 2018) (“It is the job of the agency, as factfinder, to resolve th[e] conflicts [in the evidence].” (alterations and internal quotation marks omitted)); cf. All. to Save the Mattaponi v. Dep‘t of Envtl. Quality ex rel. State Water Control Bd., 621 S.E.2d 78, 91 (Va. 2005) (“When there are conflicting expert opinions,
ACP responds to this deficiency in the Board‘s decision by downplaying the role of the Board, asserting that they must only provide a ”short, concise statement in writing” in issuing the Permit. ACP Br. 3 (emphasis supplied). First of all, this is a misquote of Virginia Code section 10.1-1322.01(P), which provides, “When the decision of the Board is to adopt the recommendation of [DEQ], the Board shall provide in writing a clear and concise” -- not a “short, concise” -- “statement of the legal basis and justification for the decision reached.”
At bottom, there is no evidence the Board “considered the conflicting views presented” and “made a reasonable decision supported by substantial evidence.”
iii.
Two of the Board members and DEQ assumed for the purpose of argument that Union Hill was an EJ community, and Respondents suggest we should impute that reasoning to the rest of the Board. See Resp‘ts’ Br. 30-31, 55-56; Oral Arg. at 25:30-26:50. We decline to do so. Cf. Flickinger v. Sch. Bd. of City of Norfolk, Va., 799 F. Supp. 586, 594-95 (E.D. Va. 1992) (imputing motive of three school board members to the whole board improper). In any event, the Board cannot assume away what it is required to decide.
Even if the entire Board made this assumption, it did not properly carry this assumption through its analysis. See
- DEQ draft permit approval submitted to the Board (October 2018) and final permit approval (January 9, 2019): As to site suitability, “[a]ir quality modeling results indicate compliance with all applicable ambient air quality standards. Therefore, the site is deemed suitable from an air quality perspective.” J.A. 1794, 2993.
- DEQ response to comments (incorporated into the Decision Statement) (Oct. 24, 2018): “In reviewing the application for this draft permit, DEQ performed a comprehensive regulatory review with respect to Virginia and federal air quality regulations. This includes the health-based standards promulgated by the [EPA] as [NAAQS], as well as Virginia‘s own health-based standards for toxic pollutants. . . . [T]he draft air permit requirements are designed to ensure protection of public health and the environment in accordance with the state and federal ambient air quality standards and regulations.” J.A. 2147.
In response to comments “stat[ing] concerns about the NAAQS and whether these standards were adequately protective of human health and the environment,” DEQ stated that the CAA “requires EPA to set NAAQS for pollutants considered harmful to public health and the environment” and sets “limits to protect public health, including the health of ‘sensitive’ populations such as asthmatics, children, and the elderly.” J.A. 2150-51.
- DEQ presentation to Board (Nov. 9, 2018): “[W]hat we strive to do and what we‘ve done in this case, is to assure that pollution, air pollution from this source, does not harm public health.
And we do that by doing the modeling and making sure it complies with all health-based standards.
Our view is that if . . . all the health based standards are being complied with, then there really is no disproportionate impact,
because everyone is being subjected to the same air pollution but well below health-based standards.” J.A. 2286.
When asked by the Board about the standard, DEQ official responded, “[T]he NAAQS protect human health including sensitive populations with an ample margin of safety.” J.A. 2288.
- DEQ presentation to the Board (Jan. 8, 2019): “The air modeling shows that emissions from the Buckingham Compressor Station will not cause an exceedance . . . of any [NAAQS] and will not violate any Virginia State air toxic standards for formaldehyde and hexane.” J.A. 2902.
- DEQ presentation to the Board (Jan. 8, 2019): “[T]he highest emission limits . . . allowed under the [P]ermit for the [C]ompressor [S]tation will result in highest concentrations of PM2.5 well below the [NAAQS].” J.A. 2912.
- Board Chairman before his vote on January 8, 2019: “The fence line maximum concentrations were below the [NAAQS] or the State toxic standard[s] as applicable.
The exposure to PM2.5 is considered safe by the EPA max, that‘s the [NAAQS], if concentrations in the ambient air are below those standards.” J.A. 2927.
Then, recognizing that concentrations of PM2.5 at the fence line of the property will “increase by . . . 20 to 40%,” and that there may be a sensitive population that will breathe the air, those concentrations are still “30 to 40% below that standard that was set to protect sensitive populations.” J.A. 2928.
This “sensitive” standard, however, appears to simply be the NAAQS themselves. See North Carolina v. TVA, 615 F.3d 291, 310 (4th Cir. 2010) (explaining that NAAQS protect “sensitive citizens -- children, for example, or people with asthma, emphysema, or other conditions rendering them particularly vulnerable to air pollution.” (internal quotation marks omitted)).
iv.
By all accounts, PM2.5 is the most harmful particulate matter to be emitted from the Compressor Station.12 A report in the record from George Thurston, a Doctor of Science and Director of the Program in Exposure Assessment and Human Health Effects at the NYU School of Medicine, explains that even short-term exposures to PM2.5 are causally connected to heart trouble and “increased risk of mortality.” See J.A. 1454. A comment from Dr. Larysa Dyrszka stated that PM2.5 is one of the deadliest air pollutants in part due to its ability to “lodge deep in the lungs” and “pass easily into the blood stream.” Id. at 1407. Indeed, any amount of PM2.5 in the system is harmful. See Am. Trucking Ass‘ns v. EPA, 283 F.3d 355, 360 (D.C. Cir. 2002) (recognizing the “lack of a threshold
We have yet to find -- and the Board and ACP do not indicate -- where the Board analyzed the risk of PM2.5 emissions to this specific EJ community, without simply falling back on NAAQS. Even in the section of its brief responding to this issue, ACP merely noted, “PM2.5 is addressed by the NAAQS.” ACP Br. 48; see also Resp‘ts’ Br. 24 (comparing PM2.5 “worst case” concentrations to NAAQS).
This strikingly limited analysis goes hand in hand with the EJ error analyzed above, making the health risk and site suitability analysis all the more important. Instead, the Board accepts without deciding that this area may be an EJ minority community with a high risk for asthma complications, and then does not properly recognize the localized risk of the very particulate matter that exacerbates asthma.
c.
Final Permit Analysis
Because the Board‘s written statement provides scant analysis, we look to “the comments and recommendation of [DEQ],” and “the agency files,” which the Board is required to consider in making its permitting decision.
First, as the myriad studies and comments presented to the Board throughout the permitting process made clear, the single-page October 2017 site evaluation was woefully inadequate to represent the true nature of the area surrounding the Compressor Station. A DEQ environmental inspector deemed the site “Sparsely Populated” and checked only “Forest” (not “Residential“) as a land use of the “area around the proposed site.” J.A. 861. DEQ listed the approximate distance to the nearest “School” and “Hospital/Nursing Home,” but left blank the space on the form for “Other Buildings” -- ignoring that there are around 60 homes within one mile of the proposed site boundary. Id.; see id. at 2396 (Dec. 7, 2018 SELC Comments Attach. B (map showing Union Hill residences)).
Second, it is improper to rely upon a SUP as a substitute for an independent determination of site suitability under section
And for the reasons mentioned above, see supra III.B.2.b.iii., blindly relying on ambient air standards is not a sufficiently searching analysis of air quality standards for an EJ community. Otherwise,
The Board‘s failure to expand on and correct this erroneous DEQ site suitability analysis -- which remained unchanged from October 2018 to January 2019 -- was arbitrary, capricious, and unsupported by substantial evidence in the record.
Conclusion
For these reasons, we conclude that the Board failed in its statutory duty to determine the character and degree of injury to the health of the Union Hill residents, and the suitability of the activity to the area. We vacate and remand for the Board to make findings with regard to conflicting evidence in the record, the particular stud(ies) it relied on, and the corresponding local character and degree of injury from particulate matter and toxic substances threatened by construction and operation of the Compressor Station.
To be clear, if true, it is admirable that the Compressor Station “has more stringent requirements than any similar compressor station anywhere in the United States,” J.A. 2920, and that residents of Union Hill “will be breathing cleaner air than the vast majority of Virginia residents even after the Compressor Station goes into operation,” ACP Br. 49. But these mantras do not carry the day. What matters is whether the Board has performed its statutory duty to determine whether this facility is suitable for this site, in light of EJ and potential health risks for the people of Union Hill. It has not.
IV.
For the foregoing reasons, we vacate the Permit and remand to the Board for further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED