Fourth Circuit Court Opinion Vacates ACP Buckingham Compressor Station Permit

Fourth Circuit Court Opinion Vacates ACP Buckingham Compressor Station Permit

On January 7, 2020 the United States Court of Appeals for the Fourth Circuit (the Court) issued a unanimous opinion vacating Permit no. 21599 for  the Atlantic Coast Pipeline's (ACP) Buckingham County Natural Gas Compressor issued by Virginia's State Air Pollution Control Board (APC Board) and Department of Environmental Quality (DEQ). The published opinion of the three-judge panel cited the board's failure to:

  1. consider electric motors as an alternative to gas-fired turbines to achieve best available control technology (BACT)
  2. perform its statutory duty to consider site suitability and disproportionate health impacts on the local predominantly African-American community of Union Hill

The Court was not satisfied that the Board provided a sufficient and rational explanation of its failure to consider electric turbines in place of gas-fired turbines. Although federal law requires BACT for major sources only, Virginia law applies the requirement to minor sources too, such as the Buckingham Compressor. Under federal law, the EPA does not have to consider control alternatives if it redefines the source. Redefinition of source is when a control alternative requires a complete redesign of the facility. The Board's rationale for not considering electric motors as BACT seemed to be that such technology would be considered redefinition of the source, however, the Court pushed back saying that there was no evidence that federal redefinition of source doctrine had ever been applied to a minor source by a state pollution board. The Court noted that there is no reference to a "redefining the source" doctrine in Virginia law or regulations.

The Fourth Circuit's opinion regarding site suitability and disproportionate health impacts concluded that Board failed to make findings regarding the character of the local population of Union Hill, failed to consider the potential degree of injury to the local population independent of National Ambient Air Quality Standards (NAAQS) and state emission standards, and DEQ's final permit analysis relied on evidence in the record that was incomplete or discounted by subsequent evidence. The Court's opinion stated that the Board's Environmental Justice (EJ)  review was insufficient and rendered the Board's permit decision arbitrary and capricious, and unsupported by substantial evidence. According to the Court, the Board's reliance on air quality standards led it to dismiss EJ concerns and consideration that the overwhelmingly minority population living closest to the Compressor Station would be affected more than those living in other parts of the same county.

The permit is now vacated and remanded for the Board to make findings with regard to conflicting evidence in the record, the studies relied on, and degree of potential health risks in light of EJ for the people of Union Hill.

The Chesapeake Bay Foundation called the Court's opinion "a major step forward for meaningful environmental justice."

The Southern Environmental Law Center (SELC) said that the people of Union Hill "won an important victory, not just for themselves, but for every community in Virginia facing the unjust burden of industry and pollution."

The ACP released a statement saying they would "immediately begin working with the state to resolve the procedural issues identified by the Court" in a timely manner.



Fourth Circuit Court Opinion 
No. 19-1152 - Argued October 29, 2019 | Decided January 7, 2020

SELC News Release

ACP News Release