Fourth Circuit Delivers Another Blow to Atlantic Coast Pipeline

RICHMOND, Va. (CN) – Citing possible health risks and a lack of oversight by a Virginia regulatory agency, the Fourth Circuit on Tuesday vacated the permit authorizing a compressor station for a natural gas pipeline that has faced numerous setbacks in the same court.

(AP Photo/Al Grillo)

The compressor station, which was supposed to help move gas from Ohio to the mid-Atlantic along the Atlantic Coast Pipeline, was set to be built in rural Buckingham County, Virginia – specifically in the historically low income and black community of Union Hill, in the rural heart of the state.

Environmental and civil rights groups challenged the Virginia Department of Environmental Quality permit that authorized the state’s construction.

They got their wish in a 47-page ruling Tuesday that vacated the permit.

All three members of the Richmond-based appeals court panel found the state agency’s air pollution control board failed to consider less invasive options for the compressor and found that lack of oversight could negatively impact the health of the community if the station was allowed to be built.

“The board failed in its statutory duty to determine the character and degree of injury to the health of the Union Hill residents, and the suitability of the activity to the area,” U.S. Circuit Judge Stephanie Thacker, a Barack Obama appointee, wrote in the opinion.

The judge acknowledged the agency’s argument that the level of emissions in Union Hill would still be lower than many other communities in Virginia, but she wrote that the board should have examined the issues more closely.

“What matters is whether the board has performed its statutory duty to determine whether this facility is suitable for this site, in light of [environmental justice] and potential health risks for the people of Union Hill,” Thacker wrote. “It has not.”

Thacker was joined in the opinion by Chief U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee, and U.S. Circuit Judge James Wynn, another Obama appointee.

Richmond-based Dominion Energy is one of three companies supporting the pipeline’s construction.

In a statement following Tuesday’s ruling, Dominion spokesperson Aaron Ruby defended the permit as the strictest of any such permit in the country. The company has also pointed to a Virginia Department of Health report that said emissions from the proposed gas-powered compressor station were “not a health hazard… because the exposure concentrations are below their respective comparison value.”

“We will immediately begin working with the state to resolve the procedural issues identified by the court and are confident this can be completed in a timely manner,” Ruby said, adding Dominion is still confident the pipeline will be up and running before long despite the latest obstacle.

Meanwhile, Union Hill resident Chad Oba, the president of the plaintiff group Friends of Buckingham, celebrated the decision.

“Five years ago, Dominion told us that there was going to be a compressor station in Union Hill and there was nothing we could do about it,” Oba said in a statement. “This is a win for a group of citizens who were committed to protecting their community and never ever gave up.”

The new hurdle for the Atlantic Coast Pipeline adds to several prior setbacks for the beleaguered project – some specifically linked to Thacker, who has a history of ruling against the project.

Last summer, she joined Chief Judge Gregory in tossing a permit for a section of the pipeline after finding the U.S. Fish and Wildlife Service “lost sight of its mandate” when it assessed the project’s impact on four endangered species in Appalachia.

Before that, Thacker wrote two opinions in 2018 that led to construction stoppages.

“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues,’” Thacker wrote in December 2018, citing the 1971 Dr. Seuss children’s book “The Lorax” while criticizing a lack of federal oversight for the project.

That ruling came six months after Thacker authored another opinion that similarly put the pipeline in limbo.

There has been no new construction since that December ruling, though the companies backing the project are confident they can satisfy the court with new permits expected this summer. They’ve since pushed the project completion date to late 2021.

Dominion’s spokesman stressed that whatever issues the project is facing, the company will overcome them as the pipeline is needed “now more than ever.”

“New infrastructure will solve the chronic shortages of natural gas in Hampton Roads and eastern North Carolina and allow these communities to revitalize their manufacturing economy,” Ruby said, stressing the completed pipeline would satisfy a broad range of future power needs. “This project is all about growing the economy and moving toward clean energy, and we remain totally committed to its completion.”

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