The US Court of Appeals for the Fourth Circuit on Tuesday vacated the Virginia Air Pollution Control Board‘s permit to Atlantic Coast Pipeline (ACP) for the construction of a compressor station in rural Union Hill, Virginia.
The petition, submitted by Friends of Buckingham and the Chesapeake Bay Foundation, claimed that the board erred in granting the permit because it did not consider zero-emission electric turbines, nor did it consider “the potential for disproportionate health impacts on the predominantly African-American community of Union Hill.” The opinion covered the laws and regulations relevant to this case: The Clean Air Act, Title Nine of the Virginia Administrative Code, the Commonwealth Energy Policy and a code that required the ACP to obtain a special use permit.
The petitioning groups urged the court to use the arbitrary and capricious review standard, typically used to review administrative agency action, to review the Board’s granting of the permit. The ACP suggested that the court use Virginia state law “substantial evidence standard of review,” but the court explained that either system would lead to the same result. Thus, they applied an arbitrary and capricious review standard. By this standard, the court concluded that the board, under the direction of the Department of Environmental Quality (DEQ), did not consider alternative electric turbines. The court also stated that “The Board acted arbitrarily in failing to provide any explanation regarding the [environmental justice] issue, which makes its extensions of public comments and additional meetings ring hollow.”
In a tweet following the decision, the Chesapeake Bay Foundation claimed a “win for clean air, clean water, the people of Union Hill, and environmental justice.”