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Friends of Buckingham v. State Air Pollution Control Bd.

United States Court of Appeals for the Fourth Circuit

October 29, 2019, Argued; January 7, 2020, Decided

No. 19-1152

Opinion

 [*71]  THACKER, Circuit Judge:

Friends of Buckingham and the Chesapeake Bay Foundation, Inc. (collectively, "Petitioners") challenge the Virginia Air Pollution Control Board ("Board")'s award [**3]  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.

 [*72]  As explained below, we agree with Petitioners and vacate and remand to the Board.

Legal Background

This petition [**4]  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.

The Clean Air Act

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).

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947 F.3d 68 *; 2020 U.S. App. LEXIS 328 **; 50 ELR 20018; 2020 WL 63295

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.

Prior History:  [**1] On Petition for Review of a Decision of the State Air Pollution Control Board and the Virginia Department of Environmental Quality. (Permit No. 21599).

Friends of Buckingham v. State Air Pollution Control Bd., 2019 U.S. App. LEXIS 10043 (4th Cir., Apr. 4, 2019)

Disposition: PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.

CORE TERMS

Compressor, Station, air, pollution, emissions, turbines, site, redefining, electric, environmental, EPA, suitability, disproportionate, energy, fuel, recommendation, emitting, replacement, technology, concentrations, capricious, quotation, redefinition, stationary, pipeline, asthma, demographics, reduction, ambient, particulate

Environmental Law, Emission Standards, Stationary Emission Sources, New Stationary Emission Sources, Air Quality, State Implementation Plans, Public Enforcement, Environmental Justice, Preconstruction Permits, Assessment & Information Access, Public Participation, Administrative Law, Judicial Review, Standards of Review, Standards of Review, Substantial Evidence, Deference to Agency Statutory Interpretation, Business & Corporate Compliance, Environmental Law, Environmental Impact Statements, Operating Permits, Agency Adjudication, Decisions, Audits & Site Assessments, Decisions, Contents, Formal Adjudicatory Procedure, Hearings, Evidence, Land Use & Zoning, Conditional Use Permits & Variances, National Ambient Air Quality Standards