Setting the Record Straight on Justice

• Author: Taylor Lilley
• Position: Environmental Justice Staff Attorney Chesapeake Bay Foundation
• Pages: 45-45

JANUARY/FEBRUARY 2022 | 45

Reprinted by permission from The Environmental Forum®, January/February 2022.

Copyright © 2022, Environmental Law Institute®, Washington, D.C. www.eli.org.

Sidebar

SI DE BAR

At its heart, environmental

justice recognizes the dis-

proportionate distribution

of harmful environmental burdens

among low-income communities,

communities of color, and other

marginalized and vulnerable indi-

vidua ls. To address environmental

injustices, many advocates have

turned their attention to the per-

mitting and siting of facilities that

release pollutants as a byproduct of

their operations, whether through

air emissions or discharges to water-

ways. This has proven to be a worthy

but cumbersome exercise, largely

due to the intricacies of demonstrat-

ing that a particular community will

be disproportionately harmed by a

proposed facility, and the challenges

of advancing these arguments before

state and local regulators.

Disproportionate impact is often

a function of proximity and relative

harm. Because of this, the viability

of environmental justice arguments

depends on the ability of parties to

introduce accurate data about public

health, and the relative makeup of

potentially impacted communities,

into the record.

The Fourth Circuit’s decision on

Friends of Buckingham v. State Air Pol-

lution Control Board has become the

quintessential example of challenging

local agency review of environmental

justice data. In 2019, the Chesapeake

Bay Foundation and the Southern

Environmental Law Center appealed

the Virginia State Air Pollution Con-

trol Board’s decision to approve an

air permit for the Atlantic Coast

Pipeline Buckingham Compressor

Station. The action was brought on

behalf of the Friends of Buckingham,

an organization developed by con-

cerned residents and CBF members.

The basis of this challenge was

the government’s failure to ad-



the record in a manner consistent

with its duty under local permitting

regulations. In reviewing the pro-

posed permit, the Virginia Depart-

ment of Environmental Quality uti-

lized EPA’s EJSCREEN tool to evalu-

ate the surrounding communities.

Reporting from EJSCREEN suggest-

ed the minority population around

the compressor station to be in the

range of 37 to 39 percent. DEQ also

looked to the National Ambient Air

Quality Standards to evaluate the

relative health impacts from the facil-

ity, which in turn suggested that the

proposed compressor station would

have minor impacts.



rebutted by commenters. A door-to-

door study conducted by the Friends

of Buckingham showed that minori-

ties made up 83.5 percent of the res-

idents in the surrounding area, with

62 percent of individuals identifying



were no surprise to local residents,

several of whom were descendants

of the freed slaves that founded the

community.

Commenters also provided an

extensive study highlighting the

harm posed by particulate matter, or

PM2.5, one of the main byproducts of

the compressor station. This study



NAAQS for PM2.5

protective. Despite being presented

with this evidence, the board ap-

proved the permit for the Bucking-

ham compressor station.

On appeal, the Fourth Circuit

found that the evidence presented

by commenters was not properly

considered by the board, leading to

a rejection of EJSCREEN data as the

basis for community evaluation and a

-

ciently searching analysis of air qual-

ity standards for an environmental

justice community.”

While Buckingham set a power-

ful precedent and provided essential

guidance to state and local regula-

tors, it was also a unique pairing of

state law and available science. In

the end, it was the comprehensive

record of evidence and the avail-

ability of legal representation that

laid a path for success. There are

Buckinghams playing out across the

nation, each with different laws and

resources. The requirements of pub-



burden on local residents to not only

become aware of proposed projects

at the right time, but also dedicate



combatting the assertions of regula-

tors and applicants alike. The suc-

cess of challenges in the future will

rely on the ability of communities

and their partners to set the record

straight and tell the stories of all

those who would be impacted.

Setting the Record Straight on Justice

“e viability of environmental

justice arguments depends on the

ability of parties to introduce

accurate data about public

health, and the relative makeup of

potentially impacted communities,

into the record”

Taylor Lilley

Environmental Justice Staff Attorney

Chesapeake Bay Foundation