4th Circuit strikes Virginia air permit for 600-mile ACP natural gas project

Washington — The Atlantic Coast Pipeline faced another legal setback Tuesday, as the 4th US Circuit Court of Appeals vacated a state air permit for a compressor station in Buckingham County, Virginia, finding inadequate consideration of both environmental justice and the potential use of electric turbines at the station.

The 600-mile natural gas pipeline, designed to deliver 1.5 Bcf/d of shale gas to the mid-Atlantic region, has seen a number of permits struck by the same court, and lead developer Dominion Energy has already delayed the in-service target several times.

The new ruling by a three-judge panel found the Virginia Air Pollution Control Board failed in three main ways in its environmental justice analysis — it failed to make findings about the character of the population, failed to consider the potential degree of injury to the local population, and it relied on an incomplete record or discounted evidence, the court said.

ASTHMA CONCERNS

"[T]he 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," said the ruling, written by Judge Stephanie Thacker. It added that "blindly relying on ambient air standards is not a sufficiently searching analysis of air quality standards for an EJ community."

The compressor station is planned for Union Hill, a historic community described by the court as having a high population of African Americans whose ancestors established the community after the Civil War. A survey by petitioners Friends of Buckingham, a group of Buckingham County residents, found about 84% of residents to be non-white, mostly of African-American descent. The court found the state officials failed to resolve conflicting evidence they were faced with about the makeup of the population.

FUEL SOURCE

On a separate matter, the court found the state failed to adequately explain why it didn't consider electric turbines in place of gas-fired turbines at the compressor station. It concluded the state relied on a nonexistent state doctrine, akin to one that exists under federal policy.

Namely, while the Virginia Department of Environmental Quality indicated during the permitting process that requiring electric turbines would be "redefining the source," or prompting a wholesale change, the court found the state failed to explain how such a state doctrine works or how the project meets such requirements. The case involved a dispute over which authorities Virginia even relied upon to rule out electric turbines.

The court vacated and remanded the permit to the state for further explanation.

The action comes as ACP already is working to reinstate permits previously struck by the 4th Circuit. That includes an upcoming US Supreme Court challenge to a 4th Circuit ruling that invalided permissions for ACP to cross the Appalachian Trail. It also includes Fish and Wildlife Service endangered species authorizations.

Dominion expressed optimism that the project can stay on track to complete construction in late 2021, with final commissioning in early 2022.

"In its opinion today, the court recognized the stringency of the permit, while requiring the state to provide more analysis and explanation to support its approval," said Dominion spokesman Aaron Ruby. "We are confident the additional analysis required by the court can be completed in a timely manner. We expect the project will still deliver significant volumes to customers under our existing timeline, even as we work to resolve this permit."

Chad Oba of Friends of Buckingham cheered the ruling, saying "five years ago, Dominion told us that there was going to be a compressor station in Union Hill and there was nothing we could do about it. ...This is a win for a group of citizens who were committed to protecting their community and never ever gave up," he said.