The Fourth Circuit Court of Appeals has vacated the Atlantic Coast Pipeline’s Buckingham compressor station air permit that was granted in January 2019 by the Virginia Air Pollution Control Board. The 47-page opinion was released on January 7. The suit challenging the permit had been brought by Friends of Buckingham (represented by the Southern Environmental Law Center) and the Chesapeake Bay Foundation and was argued before the court on October 29. In the 3-0 opinion written by Judge Thacker, the Court remanded the permit to the Air Board for further deliberation on two grounds, as noted in these excerpts from the opinion:
- “The Board’s decision was arbitrary and capricious and unsupported by substantial evidence. As Petitioners point out, ACP’s and Respondents’ arguments on appeal read as ‘convenient litigation position[s].’ Nothing more. We vacate and remand for further explanation of reliance on the redefining the source doctrine, and/or why electric turbines are not required to be considered in Virginia’s BACT (Best Available Control Technology) analysis of the Compressor Station.”
- “We conclude that 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. We vacate and remand for the Board to make findings with regard to conflicting evidence in the record, the particular stud(ies) it relied on, and the corresponding local character and degree of injury from particulate matter and toxic substances threatened by construction and operation of the Compressor Station.
“To be clear, if true, it is admirable that the Compressor Station ‘has more stringent requirements than any similar compressor station anywhere in the United States,’ and that residents of Union Hill ‘will be breathing cleaner air than the vast majority of Virginia residents even after the Compressor Station goes into operation,’ But these mantras do not carry the day. What matters is whether the Board has performed its statutory duty to determine whether this facility is suitable for this site, in light of EJ and potential health risks for the people of Union Hill. It has not.”
The Air Pollution Control Board, which last met on December 6, is not scheduled to meet until sometime in the Spring (no date has yet been announced). Until the Board addresses the issues associated with the Fourth Circuit decision, there is no valid air permit for the proposed ACP Buckingham compressor station.