RICHMOND, Va. (CN) – A panel of Fourth Circuit judges who so far have been sympathetic to complaints about the construction of a natural gas pipeline running through Virginia appeared favorable Tuesday to another challenge brought by residents of a historically black community.
At issue is the future of a compressor station for the Atlantic Coast Pipeline that aims to move natural gas along a 604-mile stretch from Ohio to the coast. But the compressor’s proposed location of Union Hill, in the heart of rural Buckingham County, Virginia, is also home to one of the nation’s oldest black communities.
Concerns about its impact on the health of that community were front and center during Tuesday’s hearing as locals fought a state permit allowing the compressor station to be built in the coming months.
David Neal, an attorney with the North Carolina-based Southern Environmental Law Center, argued on behalf of the residents who claimed the Virginia Air Pollution Control Board and Department of Environmental Quality failed to consider the station’s impacts on residents’ health or propose a less impactful alternative for moving the gas.
Neal said the board “did not even consider a full and fair assessment,” pointing to the large quantity of public comment from both locals and medical experts who saw emissions from the proposed gas-powered compressor station as a hazard.
He also pointed to comparable compressor stations that use electric motors instead of gas. These motors, he argued, are in use in other parts of Virginia, have essentially no emissions, and should have been pushed by the state instead of the gas-powered alternative.
U.S. Circuit Judge James Wynn, a Barack Obama appointee who is often outspoken in hearings, asked Neal why an electric motor wasn’t proposed for the station. The lawyer pointed to regulations which require only “minimum reductions” in emissions.
But Elbert Lin, an attorney for the Richmond-based Hunton Andrews Kurth LLP who argued on behalf of Atlantic Coast Pipeline LLC, stressed the process by which the company worked with the board was in line with state law.
He also argued concerns about environmental issues were shown through multiple amendments of the permit as the process was undertaken.
“This permit was the strictest of its type,” he said. “A lot was done here to hear the community and make changes.”
But Wynn appeared unmoved by the pipeline company’s efforts. He pointed to comments made by Jon Mueller, vice president of litigation for the Chesapeake Bay Foundation, who has argued the environmental justice concerns over the pipeline. Mueller said the state’s assessment failed to properly address the environmental impacts on the racial minority community, which should force a stricter review of the permit.
Citing the compressor’s release of particulate matter, Wynn asked Lin how those who live closest to the station would be impacted and why the state used comparable air ratings from across the state and not within the boundaries of Buckingham County as a base line for such impact.
Both Lin and Virginia Deputy Solicitor General Martine Cicconi argued the standard for such permitting is to use statewide comparisons.
“What about the county?” asked Chief U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee.
“This might be good for the rest of the state but not Buckingham County,” the judge added, before questioning if the comparison of air quality in Virginia’s rural rolling hills to that of urban centers like Richmond, Norfolk or Fairfax County offered a fair standard.
But Cicconi pushed back, reiterating that the state’s process of approving the permit was in line with regulations even if environmental groups were not pleased with its outcome.
“The agency is not in the business of telling Atlantic Coast Pipeline how to compress its gas,” she said.
The Atlantic Coast Pipeline, supported by Virginia’s largest power company, Dominion Energy, has faced numerous challenges at the Fourth Circuit and has a spotty track record with surviving challenges from groups like the Southern Environmental Law Center.
But while federal permitting issues have drawn negative responses from Fourth Circuit judges, state-level permitting has scraped by with approval from the same court in the past.
Such was the case in January, when the same three-judge panel ruled against a challenge to a water quality permit finding the state’s water agency did not act arbitrarily in approving a runoff permit for the pipeline’s construction.
With Tuesday’s hearing challenging another state agency’s permitting process, Mueller, whose group filed the losing challenge to the runoff permit, expressed some concern.
“The court is in a tough position. It’s ruling on state agencies when they typically rule on federal agencies,” he said from the steps of the courthouse in downtown Richmond.
In a statement sent after Tuesday’s hearing, Dominion Energy spokesperson Aaron Ruby said his company appreciated the concerns expressed by Union Hill locals and promised it would address both the need to transport natural gas and concerns for residents who live near the compressor station.
“We have a profound respect for Union Hill and its history, and we’re determined to do right by the community,” he said.
Ruby also pointed to a study conducted by the state’s Department of Health which suggested particulates released by the compressor were “not a health hazard.”
Wynn and Gregory were joined on Tuesday’s panel by U.S. Circuit Judge Stephanie Thacker, another Obama appointee. The judges did not signal when they would issue an opinion.Follow @@BradKutner
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