Three groups are asking Virginia to reopen an air permit issued to Chickahominy Power in 2019 for a proposed natural gas plant in Charles City County, contending that the state’s analysis of the facility’s environmental justice impacts “contains many of the same defects” of a state air permit struck down by a federal court in January 2020.
“The similarities are just so shocking,” said Taylor Lilley, an attorney with the Chesapeake Bay Foundation, which penned the letter along with the Southern Environmental Law Center and Concerned Citizens of Charles City County. “It seems the process was just repeated. And that process was found to be faulty.”
While the March 22 letter asked the State Air Pollution Control Board to reopen the permit, Chair Roy Hoagland said at meeting earlier this month that the board “does not have the authority to decide to reopen a permit.”
Instead, he said, that authority lies with the Virginia Department of Environmental Quality.
The two environmental groups and the Concerned Citizens argue that three “defects” plague the permit drafted by DEQ and approved by the air board in June 2019.
First, they say, DEQ relied on the U.S. Environmental Protection Agency’s EJSCREEN tool to determine that the communities surrounding the proposed facility did not have a greater proportion of minorities or low-income residents than Charles City as a whole despite “conflicting evidence in the record.” Second, they contend the agency “rested its environmental justice analysis” solely on compliance with federal and state air quality standards “without evaluating the risks to specific nearby communities.” And third, they say DEQ deferred to a local zoning approval “instead of independently determining whether the proposed location was suitable.”
All three of these approaches were challenged in Friends of Buckingham v. State Air Pollution Control Board. In that case the U.S. 4th Circuit Court of Appeals eventually struck down an air permit from DEQ and the Air Pollution Control Board that allowed the Atlantic Coast Pipeline to build a natural gas compressor station in the majority-Black Union Hill community in Buckingham County.
In its ruling, the 4th Circuit noted that the state had “erred” by failing “to make any findings regarding the character of the local population at Union Hill, in the face of conflicting evidence” and “to individually consider the potential degree of injury to the local population independent of (National Ambient Air Quality Standards) and state emission standards.” The court also criticized DEQ and the air board’s reliance on a permit issued by the local board of supervisors, stating that it was “improper to rely upon a (special use permit) as a substitute for an independent determination of site suitability.”
Taken together, “there’s a new impetus for both the board and DEQ to consider this letter and consider this permit,” said Lilley. “We want to make sure the record is clear about what that case means and how the board should operate moving forward.”
The groups further argue that the 2020 passage of the Virginia Environmental Justice Act justifies a reopening of the permit to comply with new environmental justice requirements incorporated into state code.
Chickahominy Power did not provide any comments on the letter.
A DEQ spokesman could not provide details on the potential process for reopening the permit as of Monday.