by Jon Sokolow
On November 15, in a brazen power play that has been described as the “Thursday Night Massacre,” Governor Ralph Northam fired two members of the Virginia Air Pollution Control Board. The reason: six days earlier, these public servants publicly questioned whether a fracked-gas compressor station proposed by Dominion Energy for the historic African American community of Union Hill in Buckingham County is a case of environmental racism – and they openly suggested that they had the power to stop it.
Most shocking of all, it is clear that these two members were fired precisely because it appeared likely that Dominion, which has given lavishly to Northam and to most politicians in Virginia in both parties, was about to be denied the permit it so desperately seeks for the only compressor station in Virginia to service the Atlantic Coast Pipeline.
As one pro-fracking industry rag that supports the pipeline conceded, “the timing of their replacement sends an unmistakable signal to the board: You WILL approve this compressor station, or else.”
On November 9, after two days of public hearings on the proposed Union Hill compressor station, it became clear that the broad pipeline resistance movement that has decried the environmental racism at the heart of Dominion’s plan was on the verge of an historic victory. Comments from multiple Board members indicated that the social justice movement in Virginia had succeeded in bringing the issue of environmental justice to the forefront of the debate over the compressor station and the pipeline overall. Everyone from the Virginia State Conference of the NAACP to the Governor’s own Advisory Council on Environmental Justice to a majority of the over 5,000 public commenters during an official public comment period, had called on the board to reject Dominion’s plan to force a massive industrial project onto an unwilling and historic community whose health and welfare would be destroyed.
The nightmare for Dominion was that on the morning of November 9, at least three of the six board members – and perhaps a fourth – saw through the web of lies they were being told by the Virginia Department of Environmental Quality (DEQ), led by its longtime Director, David Paylor. Multiple board members made it clear that they knew they were being misled by DEQ and that they intended to assert the authority granted to them by the legislature to right this wrong. The hundreds of people present for the hearing saw on full display that David Paylor’s House of Cards – about the concept of environmental racism and the legal role of the board – was about to collapse.
Then the board broke for lunch. That is the moment when democracy died in Virginia. And David Paylor and his boss, Governor Ralph Northam, killed it. The brutality and rank corruption of what happened next was worthy of an episode of House of Cards. It was an “I can’t breathe” moment for Virginia.
David Paylor had been visibly upset as he witnessed first one, then another, then a third board member politely but firmly challenge DEQ. The focus of the board members’ comments were on two fundamental issues – and two stunning lies told by DEQ and Dominion– that surfaced at the public hearing.
Lie #1: DEQ said that the board has no role to play in deciding whether Union Hill was a suitable site to place this compressor station. Instead, DEQ said that site suitability was an issue for the Buckingham County zoning board, which in 2017 approved a zoning variance for the compressor station. According to Michael Dowd, the head of DEQ’s air quality division, the zoning board’s decision was the end of the matter.
That was lie and the board knew it. The law on this point is crystal clear – and you don’t need to be a lawyer to figure that out. Section 10.1-1307 of the Virginia Code says this:
“The Board in…approving…permits, and the courts in granting injunctive relief under the provisions of this chapter, shall consider facts and circumstances relevant to the reasonableness of the activity involved…including…the character and degree of injury to, or interference with, safety, health, or the reasonable use of property which is caused or threatened to be caused [and] the suitability of the activity to the area in which it is located.”
The “you are powerless” lie was exposed by board member Samuel Bleicher, who quoted Section 1307 back to DEQ and made clear he understood the power that the board had. In one of the most dramatic moments of the hearing, Bleicher told DEQ’s Michael Dowd that DEQ was simply misreading the law when it said that the board had no power to decide the “suitability” of siting Dominion’s massive air polluting compressor station in the middle of Union Hill.
Bleicher knows from where he speaks. He graduated Phi Beta Kappa from Harvard Law School and is an Adjunct Professor of Law at Georgetown Law School. He also is a member of the Board of Directors of the League of Conservation Voters.
Board member Rebecca Rubin joined Bleicher in quoting the board’s Section 1307 authority back to DEQ.
Lie #2: The second Big Lie told by DEQ was that environmental justice considerations did not need to be considered as long as the pollution to be spewed by the compressor station did not exceed federal limits. That is a complete misstatement of federal law and Virginia law, both of which require that social justice communities like Union Hill that are predominantly people of color or indigenous, not be targeted for polluting projects relative to other populations. That clearly was the case with Union Hill, an 85% minority community that would be the site for the only Virginia ACP compressor station.
The implications of DEQ’s environmental justice lie is staggering. By DEQ’s logic, it could approve projects that deliberately were designed to run through majority African-American communities, for the express purpose of sparing white communities, and it would be just fine as long as EPA guidelines were not violated. It is a remarkable claim by a high-level official in the capital of the former Confederacy in 2018 – in Donald Trump’s America.
It is remarkable that Ralph Northam did not fire Mr. Dowd on the spot.
Fortunately, the board saw through this lie. Board member Rebecca Rubin openly challenged DEQ’s narrow interpretation of environmental justice, noting that a fundamental aspect of environmental justice law is that there is a difference between “equality” and “equity.” Rubin explained that two populations can be treated “equally” in that they both are affected by a polluting industrial facility, yet it is “inequitable” because one of those communities historically have been forced to bear the brunt of such projects. That is exactly what the gas and oil industries have done for years.
Rubin also knows from whence she speaks. A graduate of Harvard College with a Master’s Degree from Columbia University’s School of International and Public Affairs, Rubin is founder, president, and CEO of Marstel-Day, an international environmental consultancy and Chairman of the Board for the National Wildlife Refuge Association. She also was named by President Obama as a White House Champion of Change for Community Resilience.
A third board member also openly challenged DEQ’s narrow reading of environmental justice and a fourth made comments that suggested she too was troubled by DEQ’s position. On a six-member board (the board’s seventh member has recused himself), this spelled death for Dominion’s permit application. With only six members voting on whether to approve a permit for the Union Hill compressor station, it was clear that three members intended to vote against it, resulting in a tie, which would mean that the application was denied. And it appeared possible that a fourth member would vote against the application as well.
If the vote had taken place on Friday, November 9, Union Hill would have been saved and Dominion would have suffered a crushing defeat.
We don’t know exactly what David Paylor did during the lunch break on that Friday, but it is a good guess that he used his cell phone.
Perhaps he called Matt Strickler, Virginia’s Secretary of Natural Resources. Perhaps he called Clark Mercer, Governor Northam’s chief of staff. Strickler and Mercer have their own tenuous relationship with the complexities of social justice and the legacy of slavery in Virginia, having been business partners in a failed eastern shore company that they called “Old Plantation Oyster Company.”
Whoever Paylor called, his strategy emerged after the lunch break, when one of the board members read from her tablet a motion to defer the permit decision until December 10. The board then adjourned and abruptly left the room. It was like the oxygen had been sucked right out of that room. Union Hill had been about to win. Now the board was gone. It was hard to understand what had just happened.
It was hard to breathe.
Six days later, the mask came off. Northam fired Bleicher and Rubin.
No press release. No press conference. No explanation. He just fired them. And the news leaked out. Northam was confronted by activists on his Thursday Night Massacre hours after the news broke. He ignored them.
The next day, Northam named two new members to replace Bleicher and Rubin. And if they vote on December 10 as Dominion hopes they will vote, the compressor station will be approved and the fate of Union Hill will be sealed. All because Ralph Northam rigged the vote.
The reaction to Northam’s Trumpian power play was swift and sure. Environmental groups, the Virginia State Conference of the NAACP and some elected officials, decried what they described as a clear abuse of power in the service of Dominion Energy.
The governor’s spokesperson dutifully lied. She claimed that the firing of Bleicher and Rubin had nothing to do with Union Hill and nothing to do with the public comments they had made six days earlier. Not even Trump loving industry supporters – who describe those who fight racial injustice as “sleazy” and mock the racial identity of the people of Union Hill by putting the word “color” in quotes – believe that.
To paraphrase Andrew Gillum, I’m not saying Ralph Northam is a racist. I’m saying the racists are pleased that he is suffocating Union Hill.
If Northam’s subservience to Dominion Energy is not reversed, it not only will be Union Hill that will say “I can’t breathe.”
How can we in Virginia breathe free when we have a governor who is willing to fire public servants on a citizen board in order to rig a vote on environmental justice?
How can Virginia Democrats breathe when their “leader” doesn’t lead, but instead takes orders from Dominion Energy?
How can boosters of the enlightened “New South” breathe when confronted with the troubling “optics” of a white governor, descended from a slave owning family, engaging in a naked power play to destroy an historic African American community descended from freedmen?
In 1869, an arsonist near Union Hill burned the Buckingham County courthouse, an historic building designed by Thomas Jefferson, to the ground. He did so to destroy the records that the recently freed slaves might have used to obtain their rights, including property rights.
That arsonist was never caught.
Now, almost 150 years later, Dominion Energy seeks to complete the work of that 1869 arsonist. And Ralph Northam just lit the match.
But there is an inescapable truth about fire. Once it starts, everyone gets burned. In a raging inferno, everyone experiences the same terrifying thought: I can’t breathe.
The same is true when it comes to climate change. And environmental justice,
And for that reason, this injustice will not stand.
We all breathe air. We all drink water. We are all Union Hill.
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