Legal Brief: FERC’s Flaws Endanger Communities of Color in Atlantic Coast Pipeline Path

The following is from the Natural Resources Defense Council (NRDC). Also see Citing Environmental Justice Concerns, Virginia State Conference NAACP Urges Federal Appeals Court to Stop Atlantic Coast Pipeline, by Jon Sokolow.

Legal Brief: FERC’s Flaws Endanger Communities of Color in Atlantic Coast Pipeline Path

WASHINGTON (April 15, 2019) – The Federal Energy Regulatory Commission broke the law in two key ways that discounted and endangered African American and American Indian communities in Virginia and North Carolina in approving the proposed Atlantic Coast gas pipeline. That’s what environmental, civil rights, faith-based, and other groups contend in a brief filed in federal court.

“The Atlantic Coast gas project is controversial for many reasons—it’s costly, unneeded, and could endanger drinking water and pollute other natural resources while fueling climate change,” said Montina Cole, senior attorney in the Sustainable FERC Project at the Natural Resources Defense Council. “Tragically, it’s also a prime example of FERC effectively facilitating environmental injustice. We’re calling on the court to right this wrong and help protect communities of color in Virginia and North Carolina from environmental hazard and harm.”

NRDC and nine other groups filed an amicus brief on April 12 challenging FERC’s approval of the Atlantic Coast pipeline on environmental justice grounds before the U.S. Court of Appeals for the D.C. Circuit. The groups want the court to declare FERC’s approval of the pipeline null and void or order FERC to conduct a new environmental justice review. 

The other signers are: Center for Earth Ethics; Kairos Center for Religions, Rights, and Social Justice; North Carolina Poor People’s Campaign; Repairers of the Breach; Satchidananda Ashram – Yogaville; Union Grove Missionary Baptist Church; Virginia Interfaith Power & Light; Virginia State Conference NAACP; and WE ACT for Environmental Justice.

The brief details how FERC failed to serve the public interest in evaluating, and approving, construction of the proposed 600-mile, $7.5 billion Atlantic Coast project. Dominion Energy is seeking to build the pipeline to transport gas through West Virginia, Virginia and North Carolina.

“If the Federal Energy Regulatory Commission conducted a thorough public interest analysis, as it should, a balanced and accurate environmental justice review would further demonstrate what is already known: that the Atlantic Coast Pipeline is not needed to meet our energy needs, is environmentally unjust, would cause permanent environmental damage, and should be rejected,” said William Barber III, Co-Chair, Ecological Devastation Committee, North Carolina Poor People’s Campaign.

FERC’s most egregious error was relying on a deeply flawed methodology to identify environmental justice communities affected by the Atlantic Coast project and failing to address the adverse impacts of the project.

First, FERC relied on three large census tracts to analyze the potential impact of a planned gas compressor station for the pipeline in Virginia’s Buckingham County. Because the census tracts covered 500 square miles and included largely white rural areas, FERC found no environmental justice communities were near the compressor site.

That’s even though the compressor site would be in Union Hill—a largely African American community founded by freed slaves. Through its flawed analysis, which included another error that ruled out identifying an environmental justice community, FERC essentially erased or buried Union Hill.

The end result: FERC cooked its analysis and found no harm would come from the air pollution generated by the industrial compressor facility on a community of people who would be disproportionately impacted by air pollution. A map of this issue with further explanation is here.

Second, FERC lumped all “minorities” together, which led it to overlook the fact that 25 percent of North Carolina’s American Indians, about 50,000 people, live along the Atlantic Coast route. The end outcome: FERC offered no analysis of the impacts of the pipeline on American Indians.

Because FERC failed to identify these communities of color in Virginia and North Carolina, it didn’t analyze the health and environmental risks they face from the pipeline and its compressor stations, the groups charge. It’s well documented that pollution emitted from compressor stations exacerbates health issues like asthma and cancer risks that disproportionally affect communities of color.

Incredibly, even when FERC did identify a minority community—like the one near another planned compressor site in North Carolina—it dismissed the disproportionate health risks, saying that pollution levels would be within legal limits. But that doesn’t constitute an analysis of the impact on the community—it’s a dodge. Further, the Environmental Protection Agency has found the pollutants present health risks at any level, the groups note in their brief. 

Others who signed onto the brief weighed in on the issue:

Rev. Paul Wilson, Union Grove Missionary Baptist Church said: “Dominion is following a playbook utility companies often use: ram a risky project through a marginalized community, like Union Hill, because they can’t stop it. They treated us as though we didn’t even exist for a while. But we refused to be treated that way. Our community will keep on refusing to be treated as though we don’t matter, because we are strong, we are united, and we are convinced that this this pipeline, and its compressor station, pose a risk to us that we should not have to bear.”

Rev. Kevin Chandler, President, Virginia State Conference NAACP, said: “The Virginia State Conference NAACP continues to stand strongly in opposition to any project that presents disproportionate impact to the health and safety of African-American, communities of color, and low-income communities. African-Americans are exposed to 38 percent more polluted air than Caucasian Americans and are 75 percent more likely to live in fence-line communities than the average American. Furthermore, the pollution emitted by compressor stations, like the one proposed for Union Hill, is linked to increased risk of cancer and respiratory disorders, not to mention the pollution the compressor station will cause to our lands and water bodies. This project should never have been approved. Now is a golden opportunity to right a wrong, and protect our air, water, lands, and people.”

Karenna Gore, Director, Center for Earth Ethics, said: “Every American has an inalienable right to breathe clean air, drink safe water, be protected from poisons and live free from environmental injustice. We are honored to stand with the too-often marginalized people on the frontlines of ecological devastation, like those in Union Hill and Indigenous families along the proposed route of the Atlantic Coast pipeline, who are fighting for their rights, and our future.”

Kendyl Crawford, Director, Virginia Interfaith Power & Light, said: “This is what environmental injustice looks like, and Virginia is not alone. It’s sobering, clear and disturbing to see that fossil fuel infrastructure—from power plants to pipelines—is too often placed in communities of color across our country, and FERC is guilty of promoting this environmental injustice. It shouldn’t be allowed to continue operating this way, putting people at grave risk, if we are striving towards a just society.” 

Cecil Corbin-Mark, Director of Policy Initiatives, WE ACT for Environmental Justice, said: “Low-income and people of color are more likely to live closer to sources of pollution, leading to unfair health outcomes. We hope that the court will undo FERC’s too-hasty approval of the Atlantic Coast pipeline and the compressor facility that would emit unhealthy air pollution in Union Hill. Everyone has the right to breathe clean air and we need action in our most vulnerable communities to ensure that right extends to all Americans.”

The groups argue that in its environmental justice review, FERC violated the Administrative Procedure Act (APA) and the National Environmental Policy Act (NEPA). They hope the court agrees and decides to take action against FERC.

The legal brief is here.

A blog [Post] on the issue by NRDC’s Montina Cole is here.

A map showing one way FERC evaluated whether an environmental justice community exists near the proposed pipeline’s compressor facility in Virginia is here.