CHESAPEAKE CLEAN WATER BLUEPRINT (BAY TMDL)
United States District Court for the District of Columbia
Chesapeake Bay Foundation, et. al. v. United States Environmental Protection Agency, et. al.
Case No.: 1:20-cv-02529
In December 2010, EPA used its authority under the federal Clean Water Act to issue a Total Maximum Daily Load for the Chesapeake Bay and its tributaries (Bay TMDL) to limit excess nitrogen, phosphorous, and sediment pollution from the entire Chesapeake Bay watershed.
A requirement of the Bay TMDL is each jurisdiction (DC, DE, MD, NY, PA, VA, and WV) were directed to issue Watershed Implementation Plans (WIP’s) in three phases—2010, 2012, and 2019. WIP’s include detailed, specific steps each jurisdiction must take to meet the Bay TMDL by 2025. The combination of the TMDL and WIPs serves as the Chesapeake Bay Clean Water Blueprint (“Blueprint”). It was agreed that EPA would oversee TMDL progress and take action(s) necessary to ensure that the Bay States adhered to the terms of the Chesapeake Bay Agreement.
In the past dozen years, CBF has been successful in litigation to support Bay restoration and the Blueprint. CBF’s lawsuit against EPA in 2009 resulted in a settlement agreement that set specific deadlines for development and completion of the Bay TMDL. Fowler et al. v. EPA (2010). CBF defended the Blueprint from attacks by the American Farm Bureau and its allies. In that case, a federal court judge in Pennsylvania found that the Blueprint created through a federal/state partnership was legal and an example of “cooperative federalism.” This decision was upheld by the Third Circuit Court of Appeals in American Farm Bureau v. EPA (2015). See Litigation’s concluded cases for additional details.
In 2019, Pennsylvania and New York submitted Phase III WIP’s that fail to attain levels of pollution reduction required by the Bay TMDL by 2025. EPA approved these WIP’s without significant change, ensuring that Bay water quality will not be restored by 2025. As a result, in September 2020, CBF and our partners filed suit against EPA in the U.S. District Court for the District of Columbia for failing to comply with their responsibilities under the Clean Water Act and the Blueprint. Our partners in the litigation are Anne Arundel County, Maryland; The Maryland Watermen’s Association; and Robert Whitescarver and Jeanne Hoffman, CBF members and operators of a livestock farm in Virginia. Attorneys General in Maryland, Virginia, Delaware, and the District of Columbia filed a separate, but similar lawsuit as well. Defendants, EPA, have until November 20th to file an answer to CBF’s complaint.
This case is being handled by Vice President for Litigation Jon Mueller, along with Litigation staff counsel Paul Smail and Brittany Wright.
VIRGINIA—PHASE III WATERSHED IMPLEMENTATION PLAN
Hanover Circuit Court
Virginia Association of Municipal Wastewater Associations v. Virginia Department of Environmental Quality
Case No.: 19003147
In August 2019, Virginia proposed its third Watershed Implementation Plan (WIP) setting forth how the Commonwealth plans to meet the nutrient (nitrogen and phosphorus) and sediment allocations established for Virginia’s portion of the Bay in EPA’s Chesapeake Bay Total Maximum Daily Load (Bay TMDL). However, the Virginia Association of Municipal Wastewater Associations (VAMWA) filed suit challenging Virginia’s WIP. In their appeal, they ask the court to find the entire WIP invalid and strike the provision requiring wastewater treatment plants to upgrade their facilities. CBF filed a Motion to Intervene in this case on January 10th as VAMWA’s challenge threatens the Commonwealth of Virginia’s ability to meet the Blueprint goals by 2025. DEQ filed a Motion to Dismiss the appeal.
This case is being handled by Vice President for Litigation Jon Mueller along with staff counsel in the Virginia office
CLEAN AIR ACT CHALLENGES
Actions to Reduce Greenhouse Gas Emissions Under the Clean Air Act
MOTOR VEHICLE STANDARDS
United States Court of Appeals for the District of Columbia Circuit
Union of Concerned Scientists, et al. v. United States Environmental Protection Agency, et al.
Case No.: 9-1230 (and consolidated cases)
In September of 2019, the National Highway Traffic Safety Administration (NHTSA) and EPA jointly issued a final rule: The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program (SAFE Part One Rule). In this rule, NHTSA and EPA, under separate statutes, removed states’ authority to regulate greenhouse gas emissions from vehicle tailpipes and to implement zero-emission vehicle (ZEV) mandates. CBF filed a comment letter opposing this Rule.
For decades, EPA has granted California a waiver under the Clean Air Act to establish its Clean Cars program, including greenhouse gas emissions and ZEV standards. Delaware, Maryland, New York, Pennsylvania, and D.C. have adopted elements of California’s program in order to reduce air pollution and fight climate change. The Part One Rule removed all states’ authority to adopt California's standards.
In response, CBF filed an administrative petition requesting that NHTSA reconsider and withdraw its portion of the Part One Rule. CBF also joined a coalition of public interest groups in filing a petition for review with the D.C. Circuit challenging EPA’s portion of the Part One Rule. Our ongoing challenge has been consolidated with other cases filed by NGOs, industry groups, and states. CBF's opening brief was filed on June 26, 2020, and our reply brief is due on October 12, 2020. Once briefing is completed, the court will schedule oral arguments.
United States Court of Appeals for the District of Columbia Circuit
Competitive Enterprise Institute, et. al. v. United States Environmental Protection Agency, et. al.
Case No.: 20-1145 (and consolidated cases)
On April 30, 2020, under separate but related agency actions, NHTSA and EPA issued The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks (SAFE Part Two Rule). In this Rule, NHTSA weakened existing federal fuel economy standards and EPA weakened the federal carbon dioxide emissions standards for vehicle tailpipes (fuel economy is the number of miles a car can travel on one gallon of gasoline). The agencies’ weakening of the federal standards will result in significant increases of climate and air pollution that harm the environment and human health, including the residents and ecosystem of the Bay watershed.
As a result, on May 27, 2020, CBF joined a coalition of public interest groups to challenge the Rule in the D.C. Circuit by filing petitions for review of both NHTSA’s and EPA’s actions. Our petitions have been consolidated with other appeals filed by industry groups, state air quality management agencies, and a coalition of states (including the Bay jurisdictions of Maryland, Pennsylvania, Virginia, New York, Delaware, and the District of Columbia). Once briefing is completed, the court will schedule oral arguments.
These matters are being handled by CBF Litigation Staff Attorney Ariel Solaski.
CLEAN POWER PLAN
United States Court of Appeals for the District of Columbia Circuit
American Lung Association, et. al. v. United States Environmental Protection Agency et. al.
Case No.: 19-1140 (and consolidated cases)
On July 8, 2019, EPA issued a final rule repealing the Clean Power Plan and finalizing the Affordable Clean Energy Rule. The Clean Power Plan (October 23, 2015) was a regulatory program in place to reduce greenhouse gas and carbon dioxide emissions from coal fired power plants by transitioning to cleaner energy sources. The Affordable Clean Energy rule will be an ineffective replacement, that will require few, if any, emission reductions, and will ultimately lead to an increase in greenhouse gas emissions. Also, the new Affordable Clean Energy Rule does not meet the requirements of the Clean Air Act because the states now have the responsibility of developing standards of performance for air emissions reductions. Under Section 111 of the CAA, EPA is authorized to establish these standards.
The Affordable Clean Energy Rule will be harmful to the health of the Chesapeake Bay and those living in and working within the Watershed because the NOx emitted from power plants enters the atmosphere and either combines with sunlight to form ozone or remains as a form of nitrogen that deposits directly into waterbodies. The nitrogen causes algae blooms that can be harmful to oysters, fish, and blue crabs. In addition, the new Rule will delay implementation of the Chesapeake Bay TMDL and worsen the impacts of climate change from which the Bay is already suffering.
CBF filed comments on both the repeal of the Clean Power Plan and the Affordable Clean Energy replacement rule urging EPA to withdraw the proposal and fully implement the Clean Power Plan. As a result, after the Final Rule was published, CBF filed a Petition for Review with the D.C. Circuit on Aug. 30th challenging both the Repeal of the Clean Power Plan and the implementation of the Affordable Clean Energy Rule. CBF’s case has been consolidated with other appeals filed by NGO groups, energy organizations, and State Petitioners. Briefing has been completed and oral arguments are scheduled for October 8th. CBF also intervened in an appeal brought by energy organizations who are challenging EPA’s authority to regulation greenhouse gas emissions under the Clean Air Act.
This matter is being handled by CBF Litigation Staff Attorney Brittany Wright.
Since 2005, CBF has successfully pushed EPA to require stringent controls on coal-fired power plants to reduce air borne pollutants and mercury levels. In collaboration with other NGO groups, CBF’s legal actions led to the creation of a federal regulation known as the Mercury and Air Toxics Standards (MATS), 77 Fed. Reg. 9304 (Feb. 16, 2012). Unfortunately, it is again being challenged in 2020.
MATS was based on EPA’s finding that it is “appropriate and necessary,” under the Clean Air Act, to regulate mercury and toxic air emissions from fossil fuel-fired power plants that pose a significant hazard to the environment and to human health. The mercury from power plants falls from the air into rivers, lakes, streams, and the Bay where it is taken up by plants and small organisms and gradually travels up the food chain into fish and other wildlife. The mercury is converted into methylmercury, a neurotoxin that attacks the human nervous system and causes IQ deficits in children. This toxin can eventually be ingested by people who consume contaminated fish and can cause serious adverse health effects. Mercury contamination is especially damaging for developing fetuses and young children. Low-income communities, communities of color, and subsistence fishers who rely on self-caught fish to feed their families, are also at greater risk.
Despite the dangers caused by exposure to mercury pollution, the MATS have been repeatedly challenged in court by industry groups and some states. While those actions were initially defeated in the lower courts, the challengers asked the U.S. Supreme Court to overturn those decisions and vacate the MATS in 2013. CBF joined in the filing of a brief opposing the challengers' petition for certiorari. The petition was granted, and the U.S. Supreme Court in Michigan v. EPA upheld the standards. The Court found that EPA had unreasonably failed to consider costs when conducting its “appropriate and necessary” finding.
In response to the Supreme Court’s ruling, EPA completed an economic analysis and in April 2016 issued a Supplemental Finding that the costs of the MATS Rule were reasonable, and the standards remained “appropriate and necessary.” This finding was immediately challenged in court by Murray Energy, a coal mining company. CBF joined a coalition of NGOs to intervene and defend the MATS. In April 2017, with the case fully briefed and scheduled for oral arguments, the government moved to hold the case in abeyance while it reconsidered its position supporting the Supplemental Finding; the Court granted EPA’s request and suspended the case.
In April 2020, EPA issued a final rule attempting to reverse the 2016 Supplemental Finding. The 2020 rule changed how EPA considered the costs and benefits of the MATS Rule and determined that regulating hazardous air emissions from coal-and oil-fired power plants is not "appropriate and necessary," even though studies show that once fully implemented, the MATS Rule led to a 96-percent reduction in emissions of mercury and other hazardous air pollutants at significantly less cost than industry had anticipated. During the public participation process, CBF submitted a comment letter on how EPA's proposal could increase mercury emissions within the Chesapeake Bay airshed and how reducing mercury pollution is crucial for Bay restoration, curbing climate change, and protecting the region’s vulnerable populations.
In June 2020, CBF joined a coalition of NGO groups challenging the 2020 rule at the U.S. Court of Appeals for the D.C. Circuit. CBF’s case was consolidated with other appeals and joined by a coalition of states, including Bay watershed states. The case is docketed as Westmoreland Mining Holdings v. EPA (Case No.: 20-1160). Oral Arguments are expected to occur in 2021.
These matters are being handled by counsel for Earthjustice, CBF Litigation Attorney Ariel Solaski, and Vice President for Litigation Jon Mueller.
CLEAN WATER ACT
WATERS OF THE UNITED STATES (WOTUS)
United States District Court for the District of Maryland
Chesapeake Bay Foundation, et. al. v. United States Environmental Protection Agency
Case Nos. 1:20-cv-01063 (consolidated)
The Clean Water Act was designed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” To do this, the Act protects “navigable waters”—defined as “waters of the United States ”—from unregulated pollution and filling without a permit. However, because “waters of the United States” is not actually defined in the Clean Water Act, it has been subject to decades-long litigation and regulations attempting to clarify the definition. As a result, EPA and the U.S Army Corp of Engineers (Corps) collectively issued the 2015 Clean Water Rule. This Rule defined the wetlands and streams that qualify for federal protection under the Clean Water Act based on the connectivity of waters and the impacts streams and wetlands have on downstream water quality. Hundreds of streams and wetlands in the Chesapeake Bay watershed were protected under the 2015 Rule.
However, in a rejection of sound science and legal precedent, EPA and the Corps embarked upon a two-step process to repeal and replace the 2015 Clean Water Rule. First the agencies finalized a repeal of the Rule entitled Definition of “Waters of the United States”—Recodification of Pre-Existing Rules (Oct. 22, 2019). CBF filed comments prior to the issuance of this rule as the repeal would reinstate the prior confusing regulatory regime and remove protections for certain water features like Delmarva Bays and pocosins (a wetland bog with sandy, peat soil) found in the Bay region. Thereafter, the agencies issued the final replacement rule entitled The Navigable Waters Protection Rule: Definition of “Waters of the United States” (Apr. 21, 2020). CBF and more than 2,000 of our members submitted comments opposing the replacement rule, which ignores leading science on the biological connections between streams and wetlands and navigable waters. This rule eliminates Clean Water Act protection for hundreds of streams and wetlands across the watershed, meaning a pollution discharger would no longer need a federal permit to release pollutants into these waters. This reduces the ability to prevent and control pollution harmful to the Bay and its tributaries.
As a result, CBF, together with ShoreRivers, challenged both the repeal rule and the Navigable Waters Protection Rule by filing two separate actions in U.S. District Court against EPA and the Corps on April 27, 2020. We are asking the court to vacate both rules and to reinstate the 2015 Clean Water Rule. On August 24, 2020, the cases were consolidated, and a scheduling order was issued. CBF's motion for summary judgement is due on November 24th. Defendant's reply and cross motion for summary judgement is due on January 15, 2021 and CBF's response is due on March 1st.
This matter is being handled by CBF Litigation Attorney Brittany Wright.
ABINGDON BUSINESS PARK
Harford County Circuit Court
In the matter of Chesapeake Bay Foundation, Inc. et al.
Case No.: C-12-CV-20-000022
On December 9, 2019, the Harford County Director of Planning and Zoning (“Planning Director”) approved a Forest Conservation Plan for Abingdon Business Park. The developer’s (CREG/Westport I, LLC) plan includes warehouse facilities and other mixed uses on approximately 330 acres of forested land in Harford County, Maryland. The site also contains part of the Haha Branch stream, which drains into the Bush River and, ultimately, the Chesapeake Bay. The downstream Bush River is already classified as impaired for high levels of sediment from stormwater runoff. In addition, the Forest Conservation Plan permits the clearing of 200 acres of forested land and the removal of 49 old and large trees known as “specimen trees.”
On January 8, 2020 CBF, together with nearby property owners, filed a Petition for Judicial Review with the Circuit Court for Harford County contesting the Planning Director’s decision to approve the forest conservation plan which we allege does not meet the requirements of the Harford County Zoning Code. The County and the Developer together filed a Motion to Dismiss our Petition on March 27, 2020. CBF filed an opposition in response to this motion on April 10th and requested a hearing.
This matter is being handled by CBF Litigation Attorney Paul Smail and Litigation Fellow Miranda Jensen.
Federal Energy Regulatory Commission
Project No.: P-405-106
Since its construction in 1928, the Conowingo Dam on the Susquehanna River in Maryland has been trapping sediment and phosphorus pollution in the reservoir behind the structure. Today researchers estimate the reservoir is almost completely filled and, as a result, has lost much of its capacity to trap sediment and nutrients. In particular, during big storms when the flow through the dam is high, these sediments are scoured from the reservoir and released into the river below.
In August 2013 CBF intervened in the Federal Energy Regulatory Commission’s (FERC) relicensing proceedings for the dam. Intervention ensures CBF’s voice is heard in the process, and positions CBF for a legal challenge if necessary. CBF has provided comments on FERC’s Draft Environmental Impact Statement (DEIS). FERC issued the Final EIS on March 11, 2015 recommending the relicensing of all three projects (Conowingo, Muddy Run, and York Haven) with certain modifications and additional measures. FERC will decide whether to issue a license after Exelon conducts a sediment study and after the Maryland Department of the Environment ("MDE") issues a Water Quality Certification for the projects under Section 401(a)(1) of the Clean Water Act. On May 17, 2017, Exelon’s submitted their application for a Water Quality Certification. CBF filed comments on the application on August 23, 2017 detailing the impacts of the Dam on Maryland's water quality and the achievement of the water quality standards associated with the Chesapeake Bay TMDL for nutrients and sediments. CBF also presented oral comments during a public hearing held on December 5, 2017 and filed additional comments on January 16, 2018. MDE issued its Certification on April 27, 2018 requiring Exelon to account for and reduce the amount of nitrogen and phosphorus discharged through the dam due to the inability of the dam to continue trapping these pollutants.
In response to MDE's Certification, Exelon filed two judicial actions against MDE on May 25, 2019. One action was a Complaint for declaratory and injunctive relief filed in the U.S. District Court for the District of Columbia and a similar action was filed in the Baltimore City Circuit Court. Both Complaints essentially asked the court to Order MDE to withdraw their Certification as the requirements exceed the State's authority under the CWA and violate the United States Constitution. Exelon also lodged a "Protective Provision and Administrative Appeal" with MDE requesting the Department reconsider and stay its decision.
By filing these judicial actions, Exelon attempted to avoid the appropriate administrative appeals process in order to void the Water Quality Certification. CBF filed Motions to Intervene in both cases to ensure that the proper administrative process was followed and defend the State of Maryland’s authority to certify and condition discharges that would otherwise harm water quality.
The Circuit Court for Baltimore City dismissed Exelon's Complaint in October 2018 before ruling on CBF’s Motion to Intervene. However, the U.S. District Court for D.C denied CBF's Motion to Intervene on March 29th. CBF appealed the denial with the U.S. Court of Appeals for the D.C. Circuit in April 2019. However, after briefing was completed and prior to Oral Arguments, Exelon and the State of Maryland filed a Settlement Agreement with FERC that would resolve all of Exelon's judicial and administrative appeals.
The settlement requires Exelon to invest approximately $200 million adjusted for inflation over the 50-year license agreement term for environmental benefit projects, while not admitting any responsibility or liability for pollution scoured and discharged from the dam during high river flow events such as storms. On January 17, 2020, CBF filed comments on the Settlement Agreement with FERC and will continue to monitor the FERC proceedings and take appropriate legal action, if necessary.
This matter is being handled by CBF Litigation Attorneys Paul Smail and Brittany Wright, CBF senior scientist Beth McGee, and CBF's Maryland Office.
DOMINION ATLANTIC COAST PIPELINE
The Atlantic Coast Pipeline ("ACP") is an expansive operation spanning the distance of more than 600 miles from the Allegheny Mountains through North Carolina, including streams, rivers and wetlands in the Chesapeake Bay watershed throughout Virginia. More than 21 miles of line will cross national forest lands in Virginia and West Virginia. In addition, the proposed pipeline will create additional sediment and nutrients, resulting in an unprecedent risk to these waterbodies, as well as wetlands and forests in the Chesapeake Bay watershed. Forests are vital to the health of the Bay as they prevent pollution from entering waterways, protect clean air, and provide habitat to wildlife throughout the region. Thousands of acres of forests will be destroyed to construct the pipeline.
Challenge to Certificate of Public Convenience and Necessity
United States Court of Appeals for the District of Columbia Circuit
Atlantic Coast Pipeline, et. al. v. Federal Energy Regulatory Commission
Case No.: 18-1224
In October 2014, Atlantic and Dominion were granted approval for pre-filing review of the proposed Atlantic Coast Pipeline project by the Federal Energy Regulatory Commission ("FERC"). FERC reviews applications for construction and operation of interstate natural gas pipelines under Section 7 of the Natural Gas Act. In February 2015, FERC published a Notice of Intent to prepare an Environmental Impact Statement (EIS) and requested public comments. CBF along with other organizations filed comments and motions to intervene to protest the proposed pipeline project. In September 2015, Atlantic and Dominion filed applications with FERC for certificates of public convenience and necessity. This certificate is required for the construction or expansion of natural gas facilities used for the sale or transportation of natural gas and must be issued by FERC, along with an environmental impact statement.
Despite the significant environmental impacts associated with the proposed pipeline, the Commission issued the final EIS on July 21, 2017 and granted the certificate of public convenience and necessity on October 13, 2017 without considering relevant evidence in the record.
On November 13, 2017, CBF and our partners filed a request for a rehearing of the Certificate and a review of the EIS for the pipeline project with FERC. However, rather than ruling on Petitioners' rehearing request, FERC indefinitely postponed a ruling without issuing a stay while construction of the pipeline was underway. As a result, in March of 2018, CBF and our partners filed a Petition for a Writ Staying the FERC Order with the United States Court of Appeals for the Fourth Circuit asking the Court to stay construction of the Atlantic Coast Pipeline until FERC issued a final Order on the rehearing request filed with FERC. The 4th Circuit Denied the Petition. In August of 2018, FERC denied our rehearing request.
As a result, CBF and our partners filed a Petition for Review of this decision with the U.S. Court of Appeals for the 4th Circuit. Our case was transferred to the D.C. Circuit Court of Appeals and consolidated with an appeal filed by ACP related to FERC’s Certificates Order on construction funding. Briefing has been completed and the oral arguments scheduled for October 16, 2019 were removed from the court docket and the case is held in abeyance until the United States Supreme Court rules on a separate matter regarding the Atlantic Coast Pipeline and a special use permit authorizing the construction of the pipeline through parts of the Appalachian Trail and George Washington and Monongahela National Forests. The Supreme Court oral arguments in this case were held February 24, 2020. The case is docketed as Atlantic Coast Pipeline, et. al. v. Cowpasture River Preservation Association.
This case is being handled by Vice President for Litigation Jon Mueller, staff counsel in the Virginia office, and counsel with the Southern Environmental Law Center.
Water Quality Certification
United States Court of Appeals for the Fourth Circuit
Chesapeake Bay Foundation, et al. v. State Water Control Board, et. al.
Case No.: 18-1077
The Virginia Department of Environmental Quality is responsible for ensuring that the proposed project complies with all state water quality standards, including obtaining a section 401 water quality certification as defined in Section 401 of the Clean Water Act, 33 U.S.C. § 1341(a). Section 401 certification process requires states to assess whether a federal-permitted project, that discharges into the states navigable water, violates the state's water quality standards.
The Commonwealth of Virginia's Department of Environmental Quality ("DEQ") and the Virginia State Water Control Board issued the 401 Water Quality Certification to ACP on December 20, 2017. CBF along with local co-plaintiffs filed a Petition for Review of this decision with the United States Court of Appeals for the Fourth Circuit located in Richmond, VA on January 19, 2018. CBF and our co-plaintiffs allege that DEQ and the Water Control Board lacked sufficient information to find "reasonable assurance" that the proposed ACP would not violate state water quality standards, as required by Section 401 of the Clean Water Act. In addition, the certification was issued without providing adequate public notice and comment opportunities throughout the certification process.
CBF's case was consolidated with an appeal filed by Southern Environmental Law Center ("SELC") representing several organizations, including Appalachian Voices, Sierra Club, and Chesapeake Climate Action Network. Arguments were held on September 28, 2018 in the 4th Circuit Court of Appeals located in Richmond, Virginia and on January 14th, in a published opinion, the Court denied the joint petition for review and upheld the water quality certification issued for the Atlantic Coast Pipeline.
This case is being handled by Vice President for Litigation Jon Mueller, staff counsel in the Virginia office, and counsel for Southern Environmental Law Center.
BUCKINGHAM COUNTY COMPRESSOR STATION
United States Court of Appeals for the Fourth Circuit
Friends of Buckingham, et. al. v. State Air Pollution Control Board, et. al.
Case No.: 19-1152
Dominion applied for a permit to construct and operate a natural gas compressor station in Buckingham County, VA for the Atlantic Coast Pipeline. The permit would allow the new source to emit greenhouse gases, nitrogen oxides, and other toxic pollutants into the atmosphere, harming air quality and public health in violation of the Virginia State Constitution. In addition, the community where the compressor station would be built is a historic African American community raising environmental justice issues. CBF submitted comments on the proposed permit and testified at the hearing before the Virginia Air Pollution Control Board on November 8, 2018. After allowing for additional public comments related to demographics and site suitability, the Board voted 4-0 to approve the air permit on January 8th. Issuance of the permit violates the state clean air law because the board improperly considered a state statute requiring the board to determine the suitability of the site for the compressor station given that is being placed in a minority community.
As a result, on February 8th, CBF and SELC (representing Friends of Buckingham) filed a Joint Petition for Review with the 4th Circuit Court of Appeals. Oral arguments were held on October 29, 2019. On January 7, 2020, the 4th Circuit issued a Published Opinion vacating the Permit and remanding the case back to the Virginia Air Pollution Control Board. The Court held that the Board did not perform its statutory duty to determine whether the facility is suitable for this site, in light of environmental justice and potential health risks for the people of Union Hill.
This case is being handled by Vice President for Litigation Jon Mueller, staff counsel in the Virginia office, and counsel for the Southern Environmental Law Center.
VIRGINIA NATURAL GAS HEADER IMPROVEMENT PROJECT
Virginia State Corporation Commission
Virginia Natural Gas (VNG) filed an application with the Virginia State Corporation Commission (SCC) for a Certificate of Need for the construction of 24 miles of pipeline to provide gas to a new gas-fired electric generating station owned by Dominion in Charles City, Virginia, and additional projects, collectively known as the Header Improvement Project. The project consists of six individual projects, three pipeline segment construction projects, two compressor station construction projects, and one compressor station expansion project. More than 153 acres of wetlands and 313 acres of trees will be disturbed for the construction of the pipeline. The project would affect communities in Prince William, Fauquier, Caroline, Hanover, Henrico, New Kent, and Charles City counties. Dozens of homes appear to lie within 500 feet of the 24 miles of proposed pipelines.
Residents near the proposed pipeline and compressor stations will be at risk of increased levels of greenhouse gases and other toxic pollutants. In addition, many of the communities surrounding the project are minority communities and communities of color raising environmental justice issues.
On March 3, 2020, CBFand other groups challenged VNG’s application. CBF participated in Discovery and provided testimony during the evidentiary hearing held on May 13th. On June 26th, the SCC issued its preliminary order conditionally denying VNG's application. The Commission ordered VNG to establish all necessary financing and undertake an environmental justice analysis by December 21, 2020. On December 1st, the SCC dismissed VNG's application for a Certificate of Public Convenience and Necessity. VNG must file a completely new application if it wishes to proceed. CBF will continue to monitor any developments related to this project.
This matter is being handled by CBF Environmental Justice Staff Attorney Taylor Lilley.