On Petition for Review of Orders of the Federal Energy Regulatory Commission AMICI CURIAE BRIEF OF CENTER FOR EARTH ETHICS, KAIROS CENTER FOR RELIGIONS, RIGHTS, AND SOCIAL JUSTICE, NATU
DISCLOSURE STATEMENT
Federal agencies must identify disproportionate environmental burdens
burdens borne by minority and low-income communities
Federal agencies are mandated to prevent inequitable environmental outcomes by integrating environmental justice into their missions Executive Order 12,898 emphasizes that, “to the greatest extent practicable and permitted by law,” agencies must identify and address disproportionate adverse health or environmental effects on minority and low-income populations caused by their programs, policies, and activities This order underscores the importance of promoting equitable environmental practices across federal agencies to protect vulnerable communities.
Environmental justice is critically important for minority and low-income populations, highlighting the need for agencies to evolve their decision-making processes As stated in the 1994 Federal Register, executive orders emphasize that to effectively address environmental disparities, agencies must significantly change their core mandates and mission perspectives By restructuring agency actions and priorities, policymakers can better protect vulnerable communities and promote equitable environmental outcomes This approach seeks to ensure that environmental policies are inclusive and responsive to the needs of marginalized populations, fostering social equity and sustainable development.
Torres, Environmental Justice: The Legal Meaning of a Social Movement, 15 J.L
As this Court noted, “[t]he principle of environmental justice encourages agencies to consider whether the projects they sanction will have a
‘disproportionately high and adverse’ impact on low-income and predominantly minority communities.” Sierra Club v FERC, 867 F.3d 1357, 1368 (D.C Cir
Environmental justice highlights the disproportionate exposure of communities of color and low-income populations to higher levels of pollution, harmful land uses, and environmental risks compared to white, wealthier communities It emphasizes that marginalized communities often bear the brunt of environmental hazards, with their cultural spaces and sacred sites being the first to be sacrificed in the pursuit of unchecked development.
Is It Time for A National Siting Scheme?, 2 Envtl & Energy L & Pol'y J 85, 87
Environmental justice communities are disproportionately burdened with locating environmentally hazardous facilities Historically, these communities have been disadvantaged in governmental decision-making processes regarding environmental issues, leading to a higher concentration of such facilities in these areas This systemic bias perpetuates environmental inequality and highlights the need for more equitable land use policies.
The Council on Environmental Quality, which among other things
“review[s] and appraise[s] federal programs that affect the environment,” Pac
Legal precedent set by *Legal Found v Council on Envtl Quality* (636 F.2d 1259, 1262, D.C Cir 1980) established guidance for agencies to identify and address environmental justice issues The Council on Environmental Quality’s guidance under the National Environmental Policy Act emphasizes that agencies must consider the demographic composition of affected areas, including minority populations, low-income communities, and Indian tribes It directs agencies to assess whether these groups are present and if they may face disproportionately high and adverse health or environmental impacts from proposed actions.
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“minority populations, low-income populations, or Indian tribes may be different from impacts on the general population due to a community’s distinct cultural practices.” Id at 14 2
1 Available at https://www.epa.gov/sites/production/files/2015-
02/documents/ej_guidance_nepa_ceq1297.pdf
2 “Minority” populations may include American Indian or Alaskan Native
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(reviewing the Commission’s analysis of environmental justice in an environmental impact statement); Cmtys Against Runway Expansion, Inc v FAA,
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Natural gas infrastructure raises significant health concerns for surrounding
Natural gas infrastructure projects pose significant health and safety risks to local communities These risks include pollution from pipelines and compressor stations, which can harm air and water quality Additionally, there is a constant threat of catastrophic explosions and accidents associated with gas pipeline operations The presence of such infrastructure can also impact community safety and environmental health, underscoring the importance of careful planning and regulation.
Advisory Council, Guide on Consultation and Collaboration with Indian Tribal
Governments and indigenous communities play a crucial role in ensuring air quality and protecting the health of nearby populations from leaks and emissions associated with natural gas infrastructure According to a growing body of scientific evidence, leaks of methane, toxic volatile organic compounds, and particulate matter occur throughout natural gas systems, posing significant environmental and health risks Experts like Barbara Gottlieb and Larysa Dyrszka, MD, from Physicians for Social Responsibility, emphasize the need for increased public participation and stricter oversight to address these emissions and safeguard community health.
Dirty, Too Dangerous: Why health professionals reject natural gas 21 (2017)
According to a comprehensive 30-year study, there are approximately 300 significant spills and leaks annually along U.S oil and gas pipelines, highlighting the persistent risks associated with pipeline infrastructure Communities situated near these pipelines are most vulnerable to accidents, explosions, and environmental hazards (Physicians Report; Mary Finley-Brook et al., Critical energy justice in US natural gas infrastructuring, Energy Research & Social Science, 2018) Ensuring safety and justice for at-risk communities is essential as pipeline-related incidents pose serious health and environmental threats nationwide.
“For the 20 years of 1996-2016, [the Pipeline and Hazardous Materials Safety Administration] recorded 858 serious incidents, with 347 fatalities (more than 17 each year) and 1,346 injuries.” Physicians Report, supra, at 22
Gas infrastructure is frequently located in low-income and minority communities, raising concerns about environmental justice Studies reveal that over one million African Americans live within half a mile of existing natural gas facilities, a number that continues to grow each year This disproportionate placement highlights ongoing issues of environmental inequality and the need for equitable planning in energy infrastructure development.
Fleischman & Marcus Franklin, Clean Air Task Force & Nat’l Ass’n for the
During the summer ozone season, natural gas emissions cause ozone levels to rise, disproportionately affecting African American children who suffer from 138,000 asthma attacks annually This highlights the environmental health disparities faced by marginalized communities, emphasizing the urgent need for cleaner air policies to protect vulnerable populations.
African American children experience nearly twice the rate of asthma compared to white children, leading to significant health disparities Each year, approximately 101,000 school days are lost due to asthma-related issues, impacting children's education and wellbeing Additionally, the mortality rate for African American children with asthma is ten times higher than that of white children, highlighting urgent health inequities that need to be addressed.
Health & Human Servs., Office of Minority Health, Asthma and African
The Commission’s methodology for identifying environmental justice
communities in the path of the Atlantic Coast Pipeline was flawed and masked the disproportionate effect of the pipeline on environmental justice communities
The Atlantic Coast Pipeline is “a 600-mile pipeline designed to transport natural gas from Harrison County, West Virginia, to the eastern portions of
Virginia and North Carolina.” Sierra Club v U.S Dep't of the Interior, 899 F.3d
The pipeline construction will require a 125-foot right-of-way for most of its length, disturbing approximately 11,776 acres of land Even after the project is completed, a 50-foot permanent right-of-way will remain along the entire length of the pipeline, ensuring ongoing access and maintenance.
The Commission prepared an environmental impact statement for the
The Atlantic Coast Pipeline review includes a comprehensive environmental justice analysis, as detailed in the Final Environmental Impact Statement (FEIS) (pages 4-511 to 4-515) The analysis primarily focuses on comparing census tracts to assess potential impacts on vulnerable communities The Federal Energy Commission's review initiated by examining the demographic data of specific census tracts, which served as the focal point of the environmental justice evaluation (FEIS, pages 4-512 to 4-513).
The analysis focuses on census tracts within one mile of the pipeline route, identifying those that are partially or entirely affected The Commission employs specific tests to determine the presence of low-income populations and minority populations within these tracts This approach ensures a thorough assessment of the pipeline's impact on vulnerable communities.
The Commission identifies census tracts with affected low-income populations by comparing the percentage of residents living below the poverty level within the tract to the state-wide percentage; if the local percentage exceeds the state average, the tract is classified accordingly Using this approach, it was determined that 34 out of 63 affected census tracts in Virginia, 27 out of 42 in North Carolina, and nine out of 22 in West Virginia contain low-income populations.
The Commission considers a minority population affected if more than 50% of the residents in a census tract are minorities or if the minority percentage is "meaningfully greater" than that in the comparison group "Meaningfully greater" is defined as at least 10 percentage points higher than the minority percentage in the county where the census tract is located.
The Federal Energy Regulatory Commission (FERC) has identified minority environmental justice communities when their population exceeds the reference population by at least ten percent This threshold helps ensure that these communities receive appropriate attention and protections within energy project planning and decision-making Recognizing such communities is crucial for promoting environmental justice and equitable resource distribution in energy development processes.
Docket No 18-26-000, Lambertville East Expansion Project Environmental
The Commission's assessment revealed that 15 out of 63 census tracts in Virginia affected by the Atlantic Coast Pipeline had significant minority environmental justice populations In North Carolina, 20 of the 42 impacted census tracts also contained minority communities facing environmental justice concerns Conversely, none of the relevant census tracts in West Virginia were found to have minority environmental justice populations, indicating regional disparities in the pipeline's environmental impact.
The Council on Environmental Quality Guidance and relevant judicial decisions emphasize that agencies must select a reasonable and well-explained methodology when assessing the impacts of a project on minority and low-income populations For example, in Standing Rock Sioux Tribe v U.S Army, it was noted that an affected area is significant if the percentage of minorities there is at least 10 percent higher than in the general population or other appropriate geographic units This approach ensures that potential disproportionate effects on vulnerable communities are properly identified and addressed.
No 18-332-000, South Mainline Expansion Project Environmental Assessment 70
Understanding the difference between "ten percentage points higher" and "ten percent higher" is crucial in data analysis A minority population that is "10 percent higher" than a reference population is 1.1 times larger, whereas "ten percentage points higher" indicates a numerical difference that can significantly affect the interpretation—for example, a 10% increase from 10% to 20% doubles the size, but a 10 percentage point increase from 10% to 20% is a straightforward 10 percentage point rise Setting the threshold at ten percentage points reduces the ability to detect small but significant minority communities within broader populations This distinction is important for accurately assessing demographic data and addressing potential biases in environmental and community assessments, as highlighted in the Lambertville East Expansion Project Environmental Assessment.
Council on Environmental Quality Guidance did not set a percentage cutoff defining when a minority population affected by a project is “meaningfully greater” than a reference population See Council on Environmental Quality
Environmental justice review parameters should be carefully selected to avoid artificially diluting or inflating the affected minority population, ensuring an accurate assessment of environmental impacts (Corps of Eng’rs, 2017) According to the Council on Environmental Quality Guidance (1997), the scale of analysis must be chosen thoughtfully to reflect a reasoned, non-arbitrary decision under NEPA standards (Idaho Sporting Congress, 2002).
The Commission’s proximity analysis was arbitrary and flawed, as it failed to account for population differences by comparing census tracts without recognizing their varying sizes It assessed minority populations on a county-by-county basis and used a threshold for "meaningfully greater" minority communities that overlooked significant populations Additionally, aggregating all minority groups without explanation led to an underestimation of environmental justice communities Notably, the method treated all census tracts equally, ignoring that tracts typically range from 1,200 to 8,000 residents, with an optimal population of around 4,000, making equal weighting inappropriate for accurate analysis.
Census Tracts versus Tribal Census Tracts 5 In the case of the Atlantic Coast
5 Available at https://www.census.gov/newsroom/blogs/random- samplings/2012/07/decoding-state-county-census-tracts-versus-tribal-census-
The pipeline route passes through 120 populated census tracts and one unpopulated tract, with populations ranging from 10 residents to over 11,500 residents Relying solely on census tract counts provides little insight into the actual population size or community impact in the affected area Importantly, this method does not reveal whether there is a disproportionately high minority population, as it overlooks variations in population density within each census tract Therefore, census tract data alone cannot adequately assess the social and demographic impacts of the pipeline project.
The Commission overly relied on census tracts and used a shifting baseline to identify environmental justice communities Notably, it applied different reference points for low-income and minority populations, comparing local census tract data to state-wide data for low-income residents, but using an inconsistent approach for minority communities.
The commission analyzed the percentage of minorities within each census tract by comparing it to the minority percentage of the overall county This comparison highlights the concentration of minority populations in specific areas Notably, the focus was on low-income populations residing within these affected census tracts, emphasizing areas with higher economic challenges This approach provides insight into disparities and aids in targeted policy development.
Buckingham County, Virginia, were compared against the socioeconomic makeup of Virginia, but all minority populations within affected census tracts in
Buckingham County were compared against the racial and ethnic makeup of
Buckingham County's analysis involved using multiple reference populations—eight for North Carolina and ten for Virginia—to accurately identify minority populations This comprehensive approach ensures precise demographic insights, adhering to SEO best practices by highlighting key locations and data points related to minority identification.
The Commission did not adequately consider the high and disproportionate
disproportionate effects of the compressor stations on the surrounding communities
The Commission’s flawed methodology for identifying environmental justice communities weakens its ability to thoroughly address the unique environmental justice issues these communities face When the Commission fails to recognize an environmental justice community, it overlooks critical health and environmental concerns specific to that area This flawed approach is evident in its discussion of the health and environmental impacts of the Atlantic Coast Pipeline’s compressor stations, where the lack of proper identification prevents a comprehensive assessment of the community's specific vulnerabilities.
The Atlantic Coast Pipeline proposal includes three compressor stations, which are facilities that compress gas to facilitate its high-speed movement through the pipeline system These compressor stations are essential components in maintaining the efficiency and flow of natural gas along the pipeline According to Myersville Citizens for a Rural Community, Inc v Federal Energy Regulatory Commission, compressor stations play a critical role in ensuring the effective operation of pipeline infrastructure.
Regulatory Comm’n, 783 F.3d 1301, 1307 (D.C Cir 2015) The compressor stations are slated for Lewis County, West Virginia (compressor station 1),
Buckingham County, Virginia (compressor station 2), and Northampton County, North Carolina (compressor station 3) Atl Coast Pipeline, LLC, 161 FERC ả
All three compressor stations are planned within census tracts exhibiting higher-than-average minority populations or poverty levels compared to the state According to the Final Environmental Impact Statement (FEIS), Appendix U, pages U-1-5, these locations are characterized by socioeconomic challenges, highlighting potential environmental justice considerations.
“[C]ompressor stations emit various air pollutants, such as ‘volatile organic compounds; particulate matter; nitrogen oxides; carbon monoxide; sulfur dioxide; greenhouse gases and small amounts of hazardous air pollutants.’” Alexandra
B Klass & Jim Rossi, Reconstituting the Federalism Battle in Energy
Transportation, 41 Harv Envtl L Rev 423, 450–51 (2017) (quoting Ohio Envtl
Natural gas compressor stations, such as Station 2 and Station 3, are regulated under air pollution control permits to minimize environmental impact These stations emit a range of pollutants, including nitrogen oxides, carbon monoxide, volatile organic compounds, and particulate matter, particularly PM10 and PM2.5, which pose health risks Compliance with air quality standards is essential to reduce pollution and protect public health.
Pollutants such as nitrogen oxides pose significant health risks to nearby communities, with those living closest to the source facing the greatest danger According to the EPA’s latest scientific assessment, short-term exposure to nitrogen oxides can trigger asthma attacks, highlighting the urgent need to monitor and mitigate these pollutants to protect public health.
“to chronic obstructive pulmonary disease” and other respiratory diseases EPA, Integrated Science Assessment for Oxides of Nitrogen Health Criteria, lxxxiii
A 2016 report indicates a probable causal relationship between long-term NO2 exposure and respiratory effects, particularly the development of asthma Additionally, volatile organic compounds (VOCs) play a significant role in this process by contributing to air pollution and potentially exacerbating respiratory health issues.
6 Va Dep’t of Envtl Quality, Minor New Source Review Permit for Atlantic Coast Pipeline, LLC’s Buckingham Compressor Station (BCS), Registration No
21599 - Public Participation Report and Request for Board Action 2, available at https://www.deq.virginia.gov/Portals/0/DEQ/Air/BuckinghamCompressorStation/ ADA_21599_Memo_to_Board.pdf
The Atlantic Coast Pipeline submitted a supplemental application to the North Carolina Department of Air Quality for an air permit for the Northampton Compressor Station According to the application filed on July 20, 2017, it projects that Compressor Station 3 will emit approximately 19.2 tons of nitrogen oxide and 18.4 tons of particulate matter annually This information highlights the potential environmental impact of the project and underscores the importance of regulatory review to ensure air quality standards are maintained For more details, see the official document available at the North Carolina Department of Environmental Quality's website.
Ground-level ozone, smog, and particulate matter pose significant risks to human health and the environment, prompting the approval of California Air Plan Revisions by multiple districts, including Mojave Desert, Northern Sierra, and San Diego County Air Pollution Control Districts (82 Fed Reg 28,240, 28,241, June 21, 2017) The EPA has specifically linked particulate matter to serious health problems such as premature death in individuals with heart or lung disease, nonfatal heart attacks, irregular heartbeat, worsened asthma, decreased lung function, and increased respiratory symptoms like airway irritation and coughing Notably, the EPA acknowledges that there is no known safe exposure level for particulate matter smaller than 2.5 microns, emphasizing the need for strict air quality standards.
Particulate Matter, 78 Fed Reg 3,086, 3,098 (Jan 15, 2013) The Agency for
The Toxic Substances and Disease Registry, part of the U.S Department of Health and Human Services, reports that exposure to hydrogen sulfide and particulate matter emissions from natural gas compressor stations can pose significant health risks.
“harmful effects” on “sensitive subpopulations,” including the elderly and individuals with asthma Agency for Toxic Substances and Disease Registry,
8 Available at https://www.epa.gov/pm-pollution/health-and-environmental- effects-particulate-matter-pm
Natural Gas Ambient Air Quality Monitoring Initiative: Brigich Compressor
Despite known health risks and the demographic makeup of communities near compressor stations, the Commission claimed that these stations do not cause disproportionately high adverse environmental impacts on justice populations due to air quality issues However, this conclusion is flawed for two primary reasons, highlighting concerns about the accuracy of environmental justice assessments related to compressor station impacts.
The Commission’s methodology for identifying environmental justice communities failed to recognize minority communities situated near compressor stations, such as Union Hill near compressor station 2 Additionally, even when environmental justice communities were identified, the Commission minimized the health risks posed by compressor stations, especially for vulnerable minority populations like the community near compressor station 3 in North Carolina.
Compressor Station 2 is planned to be constructed in the unincorporated Union Hill community of Buckingham County, Virginia Union Hill boasts a rich heritage, featuring the Greater Union Hill and Woods Corner Rural Historic District, which includes historically significant African American churches and schools dating back to the area's founding.
After emancipation, the land previously occupied by the Variety Shades plantation became a large slave burial ground Preservation Virginia, the nation's first statewide historic preservation organization, has identified Union Hill and its historic cemeteries as among Virginia’s most endangered historic sites due to threats from the Atlantic Coast Pipeline (Source: https://www.atsdr.cdc.gov/HAC/pha/Brigich_Compressor_Station/Brigich_Compr; Virginia’s Most Endangered Historic Places 2016)
Union Hill is predominantly African American, with approximately 74% of nearby residents identified as African American and 81% classified as minorities, according to a survey of residents near the compressor station site.
Preservation and Environmental Justice Partners re: Atlantic Coast Pipeline and Supply Header Project Draft Environmental Impact Statement at 7 (Record Item
No 11542) The Environmental Protection Agency guidance relied on by FERC warns that “pockets of minority or low-income communities” could be missed in a
The EPA's Final Guidance emphasizes the importance of moving beyond traditional census tract-based analysis by identifying whether high-concentration pockets of minority populations are present in specific geographic areas Agencies are encouraged to target these areas to better address environmental and social disparities This approach enhances understanding of localized community needs and supports more equitable resource allocation in environmental justice initiatives.
11 Available at https://preservationvirginia.org/wp-
Incorporating Environmental Justice Concerns in EPA’s NEPA Compliance