FRIENDS OF BUCKINGHAM; CHESAPEAKE BAY FOUNDATION, INCORPORATED, Petitioners,
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.
Argued: October 29, 2019
Petition for Review of a Decision of the State Air Pollution
Control Board and the Virginia Department of Environmental
Quality. (Permit No. 21599)
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.
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
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.
GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
THACKER, CIRCUIT JUDGE:
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.
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.
explained below, we agree with Petitioners and vacate and
remand to the Board.
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.
Clean Air Act
Air Quality Standards
to the Clean Air Act ("CAA"), 42 U.S.C.
§§ 7401-7671q, the Environmental Protection Agency
("EPA") is tasked with establishing national
ambient 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.
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. §
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.
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.
Available Control Technology ("BACT")
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).
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.
the source" in the federal administrative world is
applicable to projects certified under the prevention of
significant deterioration ("PSD") program. The PSD
provisions were added to the CAA in 1977 to focus on
"facilities which, due to their size, are financially
able to bear . . . substantial regulatory costs . . . and
which, as a group, are primarily responsible for emissions of
the deleterious pollutants that befoul our nation's
air." Ala. Power Co. v. Costle, 636 F.2d 323,
353 (D.C. Cir. 1980). The purpose of the PSD program is to
"protect public health and welfare from any actual or
potential adverse effect which in [EPA's] judgment may
reasonably be anticipate[d] to occur from air pollution . . .
notwithstanding attainment and maintenance of all
[NAAQS]." 42 U.S.C. § 7470(1). The PSD program was
designed to "combat incumbency by ensuring that, in
addition to new facilities, existing facilities will
eventually have to satisfy stringent technology-based
requirements when they make major modifications." Sage
Ertman, Climate Change and the PSD Program: Using BACT to
Combat the Incumbency of Fossil Fuels, 47 Envtl. L. 995,
"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 §
7475(a)(1)). First, there is an "obligation to conduct
the BACT analysis on the 'proposed facility.'"
Id. Second, there is a "concurrent obligation
to consider as BACT 'application of production processes
and available methods, systems, and techniques,'
including lower-emitting fuels." Id. (citing
§ 7479(3)). According to the EPA's Office of Air and
Radiation, the redefining the source doctrine
"reasonably harmonizes" these competing obligations
in that the entity issuing the permit "review[s] the
project as proposed -- not something fundamentally
different," but also "review[s] all elements of the
proposed project's design and, in particular, consider[s]
whether lower emissions are achievable through application of
production processes and available methods, systems, and
techniques." Id. at *16 (internal quotation
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, 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.
knowledge, this federal redefining the source doctrine has
never been applied to a non-PSD, minor source by a state
pollution board, which is what we have here.
State Implementation Plan
"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," 42
U.S.C. § 7409(b)(1), and "protect not only average
healthy individuals, but also 'sensitive citizens' --
children, for example, or people with asthma, emphysema, or
other conditions rendering them particularly vulnerable to
air pollution," North Carolina v. TVA, 615 F.3d
291, 310 (4th Cir. 2010) (internal quotation marks omitted).
However, the CAA makes clear that "air pollution control
at its source is the primary responsibility of States and
local governments." 42 U.S.C. § 7401(a)(3).
Therefore, states are tasked with adopting a SIP "which
provides for implementation, maintenance, and enforcement of
[primary and secondary NAAQS] in each air quality control
region (or portion thereof) within such State."
Id. § 7410(a)(1).
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 9 Va. Admin.
Code § 5-80-1120(A). ACP applied for an Article 6 Permit
on September 17, 2015. DEQ took ACP's application and
elevated it to the Board for approval.
to Virginia's SIP, all new stationary sources, whether
major or minor, are subject to BACT review. See 9
Va. Admin. Code § 5-50-260(B) ("A new stationary
source shall apply best available control technology for each
regulated pollutant for which there would be an uncontrolled
emission rate equal to or greater than the levels in 9 Va.
Admin. Code § 5-80-1105 [providing charts of exemption
levels in tons per year for various pollutants]."). This
is so even though federal law does not require a
BACT analysis of minor sources.
BACT relies on emission reduction per emissions unit via
production processes, methods, or techniques. See 9
Va. Admin. Code § 5-50-260(C) ("This [BACT]
requirement applies to each affected emissions unit
in the project." (emphasis supplied)). Specifically,
Virginia's BACT analysis requires the development of
"an emissions limitation . . . based on the maximum
degree of emission reduction . . . which the [B]oard, on a
case-by-case basis, . . . determines is achievable for the
new stationary source . . . through the application of
production processes or available methods, systems and
techniques, including fuel cleaning or treatment or
innovative fuel combustion techniques." Id.
§ 5-50-250(C). Of note, there is no reference to the
"redefining the source" doctrine in Virginia law or
Commonwealth Energy Policy
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." Va. Code Ann. § 67-102(A)(11).
Likewise, one of the "[e]nergy objectives" of the
Commonwealth Energy Policy is to "[d]evelop energy
resources and facilities in a manner that does not impose a
disproportionate adverse impact on economically disadvantaged
or minority communities." Id. §
Virginia's Regulatory Structure
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." Va. Code
Ann. § 10.1-1302; see id. § 10.1-1301. The
Board is empowered to "make, or cause to be made, such
investigations and inspections and do such other things as
are reasonably necessary" to discharge its duties.
Id. § 10.1-1306. For example, the Board may
"call upon any state department or agency for technical
assistance" in performing its duties. Id.
Board often calls upon DEQ to provide technical support and
help the Board to fulfill its obligations. In general, DEQ
can review permit applications, prepare draft permits and
related documents, review and respond to comments from the
public, and hold public hearings. See Aegis Waste Sols.,
Inc. v. Concerned Taxpayers of Brunswick Cty., 544
S.E.2d 660, 663 (Va. 2001); see generally 9 Va.
Admin. Code § 5-170-180 (delegating Board's
administrative functions to DEQ). Either the Board or DEQ can
issue minor source Article 6 Permits, but when the Board does
so, as in this case, it must consider:
(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.
Va. Code Ann. § 10.1-1322.01(P). If the Board adopts the
recommendation of DEQ, it "shall provide in writing a
clear and concise statement of the legal basis and
justification for the decision reached." Va. Code Ann.
§ 10.1-1322.01(P). Likewise, if the Board's decision
varies from DEQ's recommendation, the Board must
"provide a clear and concise statement explaining the
reason for the variation and how the Board's decision is
in compliance with applicable laws and regulations."
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 Va. Code Ann. § 10.1-1321.1(A)
("No application for a permit for a new or major
modified stationary air pollution source shall be considered
complete unless the applicant has provided the Director [of
DEQ] with notification from the governing body of the county
. . . in which the source is to be located that the location
and operation of the source are consistent with all [local]
ordinances."). The Board of Supervisors issued the SUP
in February 2017, and it contained 41 conditions for the
Compressor Station. These conditions included emergency
response requirements, a notification process for planned
natural gas venting events, noise mitigation measures, light
regulations, and zoning setbacks. Based on the SUP,
Buckingham County certified to DEQ that the Compressor
Station "is fully consistent with all applicable local
ordinances." J.A. 323 (bolding omitted).
Factual and Procedural History
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.
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
pipeline"; (2) "it was available for [ACP] to
purchase commercially"; and (3) "the Federal Energy
Regulatory Commission ('FERC') ruled out the only
other site that met the previous two criteria [the Midland
Road Site,  which would require 1.1 miles of
additional pipeline]." ACP Br. 10-11.
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
Comments and Hearings
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 day
comment period, DEQ received more than 5, 300 comments.
"Many comments" expressed "concerns about the
potential for disproportionate impacts of the proposed
facility on the African American population in Union
Hill." J.A. 2174.
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
• "[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.
• "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 ...