You Can’t Check This Box: A Win for Environmental Justice

by Jerry Thomas

            In a stark contrast to the decision in St. Francis Prayer Ctr. v. Michigan Department of Environmental Quality (hereafter, Select Steel), the Fourth Circuit in Friends of Buckingham v. State Air Pollution Control Board delivered a major victory for environmental justice (EJ). Select Steel created something called the rebuttable presumption defense; because emissions do not exceed the national ambient air quality standards (NAAQS), the emissions will not have an adverse impact on communities. The rebuttable presumption assumes because emissions don’t violate the Clean Air Act (CAA), they cause no harm.  In Select Steel, the steel mill emitted pollutants like lead, among other hazardous pollutants. It is well known there is no safe level of lead. And just because a plant emits levels of lead below the NAAQS does not mean there is no impact.

Justice Thacker correctly disposed of the rebuttal presumption in his landmark opinion. In Friends of Buckingham, Atlantic Coast Pipeline (ACP) was looking to site a Compressor Station in Union Hill—a historically black community. There was no question on either side whether the Commissioning Board was required to consider EJ; under Virginia law, the development of a new energy resource or facility must not have a disproportionate adverse impact on EJ communities. As to the site suitability, the Department of Environmental Quality (DEQ) noted the modeling results showed compliance with NAAQS so Union Hill was an appropriate place. Justice Thacker responds to this and says “even when NAAQS are not violated as to this particular matter, the record reflects exposure to PM2.5 will increase the risk of asthma, heart attacks, and death.” Justice Thacker effectively and correctly does away with the rebuttable presumption and goes further to say “blindly relying on ambient air standards is not a sufficiently searching analysis of air quality standards for an EJ community.” Most importantly, Justice Thacker definitively declares “environmental justice is not merely a box to be checked” and vacated the permit. This is one box that cannot be checked off by blindly relying on standards. These vulnerable communities deserve more and Justice Thacker is spearheading the needle in the right direction.

While this case is especially unique because of Virginia’s law requiring an EJ analysis for new energy sources/plants, it is also instructive. Executive Order 12898 instructs all agencies to do an EJ analysis in their National Environmental Policy Act (NEPA) reviews. States don’t need explicit statutes addressing EJ concerns if the agencies are faithfully fulling the requirements of the EO. Doing away with the rebuttable presumption will make EJ analyses that much stronger when agencies are considering projects. Regarding air quality, the NAAQS are meant to protect human health including sensitive populations with an ample margin of safety. It is vital to stress just because emissions don’t exceed health standards under the CAA does not mean they don’t cause harm or impact. A harm is a harm. And under Title VI of the Civil Rights Act of 1965, that is all that is required. To say there must be serious health consequences or an exceedance must happen would defeat the purpose of granting protections to communities of color and low-income communities, which are already more susceptible to these impacts.

While environmental justice—or injustice—is not a new concept by any stretch of the imagination, it is becoming more prevalent. Presidential candidates and Senators now see how serious systematic and institutionalized racism and discrimination has contributed to the problem by introducing legislation. The injustice cannot be corrected without legislation, judges, and agencies who are willing to meaningfully engage in the analyses and recognize a problem when it presents itself. The problems are too pervasive for agencies or judges to only take a cursory glance. This is not a box that can just be checked off by relying on standards, these vulnerable communities deserve more than that. Justice Thacker is moving the needle in the right direction toward environmental justice and exemplifies what agency accountability looks like.