Posted on May 7, 2021 by Dennis M. Toft
It has long been recognized that minority and disadvantaged communities are subject to higher levels of pollution than more affluent non-minority areas. This fact is the basis of the need for Environmental Justice to ensure that the past disparate impacts to these areas are addressed and not further exacerbated.
With Executive Order 14008, the Biden administration adopted measures to further Environmental Justice nationwide. This included updating the Clinton era Executive Order 12988 (February 11, 1994), enhancing the White House Environmental Justice Interagency Council, creating a White House Environmental Justice Advisory Council, and directing federal agencies to undertake specific EJ initiatives.
There are also new EJ laws and initiatives at the state level. For instance, last year New Jersey adopted EJ legislation which, when fully operative, will impose new requirements for the issuance of permits or permit renewals for certain types of facilities – including any major air pollution source – in EJ communities. New Jersey Governor Murphy also issued Executive Order 23 directing that all state agencies consider Environmental Justice when making decisions.
What is not specified in these executive and legislative actions are the means for determining whether a proposed project will have a disproportionate impact. The decision by the Fourth Circuit Court of Appeals in Friends of Buckingham v. State Air Pollution Control Board, is one example of how this process may evolve. That case involved a review of a minor source air permit issued by the Virginia State Air Pollution Control Board for construction of a compressor station as part of the Atlantic Coast Pipeline project. The Court had jurisdiction to review the permit under the Natural Gas Act, 15 U.S.C. 717r(d)(l), which vests original jurisdiction in the Circuit Court of Appeals to review state permitting decisions for a natural gas facility. In its review, the Court considered the particulars of Virginia’s air quality regulations and found that the Air Control Board failed to follow certain requirements in Virginia regulations and the Virginia State Implementation Plan. In addition, the Court considered the provisions of the Virginia Commonwealth Energy Policy, which includes requirements that new or expanded energy facilities do “not have a disproportionate adverse impact on economically disadvantaged or minority communities.”
The Court determined that the Board did not comply with this requirement. Although certain Board members stated that they assumed that Buckingham is an EJ community, they failed to consider whether the community was “especially sensitive” to certain conditions. According to the Court, the air pollution modelling demonstrating that the proposed compressor facility would not cause a violation of National Ambient Air Quality Standards (NAAQS) was insufficient to determine if there was a disproportionate impact to the community. Of particular focus was the potential that exposure to fine particulates (PM 2.5) would have a greater impact upon the residents living near the compressor station than those living farther away. Because the Board failed to consider the local character and degree of injury, it did not meet its obligations to ensure compliance with the EJ requirements of Virginia Law. This finding was made even though the compressor project had obtained local land use approval. The permit was vacated, and the matter was remanded back to the Board for further proceedings.
The analysis in Friends of Buckingham could be the basis of future EJ analyses by those seeking to build or expand projects in EJ communities. It may be that showing compliance with the NAAQS alone is not enough even for a minor emissions source. Rather, a focused review of health issues in the community and the potential impacts of a proposed facility on those potentially impacted would be required. As EJ programs are developed around the Country, it will be increasingly important to understand how the determination will be made of a disproportionate impact, which may vary from State-to-State.