Sadly, Gov. Ralph Northam’s decision last week to replace two members of the State Air Pollution Control Board, even as the board considers a crucial permit that would allow a compressor station for Dominion Energy’s Atlantic Coast Pipeline, is far from an anomaly.
Between 2006 and 2010, during my second term on the air board, then-Gov. Tim Kaine’s administration and the General Assembly regularly undermined the board when we chose to deviate from DEQ’s permitting and regulatory recommendations and to adopt tighter standards.
But almost without exception, the board’s decisions held up in court.
In 2008, the governor and the General Assembly weakened the air and water boards through legislative action, a decision that came after the air board adopted stricter standards than DEQ advocated for the now-shuttered Mirant coal-fired power plant in Alexandria.
A judge found the board’s standards for the Mirant plant to be lawful.
In 2008, the air board was faced with a permit decision for Dominion’s coal-fired power plant in Wise County.
In backroom discussions that came to light when I was researching my 2017 book, “Climate of Capitulation,” one of Gov. Kaine’s aides suggested dismissing board members even before our terms had ended, because we had challenged DEQ’s proposal and had taken over the permitting process.
In the end, we granted the Wise permit, but only after tightening DEQ’s suggested emission limits substantially.
Among the issues we raised were CO2 emissions, environmental justice and DEQ’s and Dominion’s questionable assertions regarding the best technologies available. The only part of that permit that was overturned was a mercury loophole that DEQ staff had advocated.
In 2006, the board issued two proposals for public comment for regulations that would limit mercury emissions from coal-fired power plants. One approach embraced the technology approach that other states had adopted and the other approach was based on President George Bush’s administration’s weaker cap-and-trade regulations.
The General Assembly forced the air board to adopt the Bush mercury cap-and-trade regulations, and Gov. Kaine signed that bill. But in 2008, the Bush regulations were overturned in federal court.
With the Buckingham proposal, the board members, especially the newly appointed ones, are between a rock and a hard place.
The new members will find it difficult to get up to speed quickly with the complicated technical, legal, ethical and policy issues involved.
Based on my experience, they will be fed information supportive of DEQ’s and Gov. Northam’s position and pressured to approve DEQ’s proposal.
The board members face the possibility that the governor and the General Assembly will override whatever they decide.
But, ultimately, the board members must exercise their broad discretion in a reasoned, lawful manner that protects the board’s short- and long-term integrity and credibility.
They should remember that the air board is supposed to exercise its independent judgment, and that, when we did so between 2006 and 2010, courts supported our decisions.
As of now, the compressor station would be located in Union Hill, a predominantly African-American community that was settled by freed people and the formerly enslaved. The board’s statutory authority includes the ability to consider “the suitability of the activity to the area in which it is located.” Granted, the Buckingham County Board of Supervisors approved the siting for the compressor station.
On the other hand, if there’s one thing we should have learned well before the horrible events in Charlottesville in August 2017, it’s that we must squarely face and eliminate racism, whether it takes an overt form or the more covert form of discriminatory results.
Gov. Northam could pressure Dominion to move the compressor station to a more suitable site.
Of course, moving the station would not address the larger questions about the stringency of the proposed air permit, the need for the pipeline, and the pipeline’s public health and environmental consequences.
But in so doing, the governor would take an important step toward fighting structural racial injustice.