Friends of Buckingham v. State Air Pollution Control Board, 010720 FED4, 19-1152

Docket Nº:19-1152
Opinion Judge:THACKER, CIRCUIT JUDGE:
Party Name: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, ...
Attorney: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 AN...
Judge Panel:Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
Case Date:January 07, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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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.

LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW; DELEGATE DAWN ADAMS; DELEGATE LASHRECSE AIRD; DELEGATE HALA ALAYA; DELEGATE JOHN BELL; SENATOR JENNIFER BOYSKO; DELEGATE JENNIFER CARROLL FOY; DELEGATE LEE CARTER; DELEGATE KELLY CONVIRS-FOWLER; SENATOR CREIGH DEEDS; DELEGATE KARRIE DELANEY; DELEGATE WENDY GOODITIS; DELEGATE ELIZABETH GUZMAN; DELEGATE PATRICK ALAN HOPE; DELEGATE CHRIS HURST; DELEGATE JAY JONES; DELEGATE MARK KEAM; DELEGATE KAYE KORY; DELEGATE PAUL KRIZEK; DELEGATE MARK LEVINE; DELEGATE ALFONSO LOPEZ; DELEGATE KENNETH R. PLUM; DELEGATE SAM RASOUL; DELEGATE MARCUS SIMON; DELEGATE KATHY TRAN; DELEGATE CHERYL TURPIN; DELEGATE DEBRA RODMAN; DELEGATE IBRAHEEM SAMIRAH; DELEGATE LIONELL SPRUILL; VIRGINIA CONFERENCE NAACP; THE CENTER FOR EARTH ETHICS; VIRGINIA STATE CONFERENCE OF NAACP BRANCHES; UNION GROVE MISSIONARY BAPTIST CHURCH; SIERRA CLUB; VIRGINIA INTERFAITH POWER AND LIGHT; KAIROS CENTER FOR RELIGIONS, RIGHTS, AND SOCIAL JUSTICE, Amici Supporting Petitioners.

JOSEPH SCRUGGS; GERALD WASHINGTON; CRAIG WHITE, Amici Supporting Respondents/Intervenor.

No. 19-1152

United States Court of Appeals, Fourth Circuit

January 7, 2020

Argued: October 29, 2019

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:

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 ANDREWS KURTH LLP, Washington, D.C., for Intervenor Atlantic Coast Pipeline, LLC. Kristen Clarke, Jon Greenbaum, Dorian L. Spence, Maryum Jordan, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., for Amicus Lawyers' Committee for Civil Rights Under Law. Elizabeth F. Benson, SIERRA CLUB, Oakland, California, for Amici Virginia State Conference NAACP, Union Grove Missionary Baptist Church, Sierra Club, Virginia Interfaith Power & Light, and Kairos Center for Religions, Rights, and Social Justice. Aderson B. Francois, Taylor Blatz, Civil Rights Clinic, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Amici 28 Members of the Virginia General Assembly, Virginia State Conference NAACP, and the Center for Earth Ethics. Andrew P. Sherrod, Jaime B. Wisegarver, HIRSCHLER FLEISCHER, P.C., Richmond, Virginia, for Amici Joseph Scruggs, Gerald Washington, and Craig White.

Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.

THACKER, CIRCUIT JUDGE:

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.

I.

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"), 42 U.S.C. §§ 7401-7671q, the Environmental Protection Agency ("EPA") is tasked with establishing national ambient1 air quality standards ("NAAQS") for certain "criteria" pollutants. 42 U.S.C. § 7409. Criteria pollutants are pollutants which EPA has determined may endanger the public health or welfare, and they include: sulfur dioxide, carbon monoxide, nitrogen dioxide (referred to herein as "NOx"), ozone, particulate matter, and lead. See generally 40 C.F.R. Part 50.

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 "protect the public health," allowing an "adequate margin for safety." 42 U.S.C. § 7409(b)(1). The secondary NAAQS are the levels set to "protect the public welfare," including environmental and economic interests such as "soils, water, crops," "manmade materials," "visibility," and "climate," in addition to "effects on economic values and on personal comfort." Id. § 7409(b)(2), 7602(h).

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 42 U.S.C. §§ 7409-10.

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. 42 U.S.C. § 7479(1). The Compressor Station is indisputably a minor source, as it has the potential to emit 43 tons per year.

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." 42 U.S.C. § 7475(a)(4). BACT is a guarantee that the emitting source is using the best available technology to limit emissions of regulated pollutants. It is defined in the CAA as: 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.

42 U.S.C. § 7479(3).

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[]" --...

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