– Chris K, Karry M, Perri M.
TakeBacktheGrid was thrilled to learn that on June 3, 2020, the First Circuit of the US Court of Appeals vacated the air quality permit for the fracked gas compressor station under construction in Weymouth, MA. The permit, originally granted by the Massachusetts Department of Environmental Protection (DEP), allowed the parent company Enbridge to begin construction. The vacatur of this air quality permit is a welcome victory following a long string of defeats and setbacks for the Fore River Residents Against the Compressor Station (FRRACS) who have opposed the construction of this compressor station for over five years. The MA DEP has 75 days (beginning June 3rd) to re-evaluate the cost efficacy of various technologies considered in the air permit. We decided to dig into the text of this vacatur to learn more about the judge’s decision and what the implications are for Weymouth and surrounding communities in the months ahead.
The Weymouth compressor station is a natural gas pipeline facility that would connect two sections of Enbridge’s Atlantic Bridge project which spans through New England up to Nova Scotia, Canada. Weeks before the final permits were approved when opposition was at a fever pitch, the two major MA gas distribution companies– National Grid and Eversource, which would normally purchase natural gas from transmission pipelines like Atlantic Bridge– declared that the compressor station was not required to meet local demand; both companies are investors in the compressor station project. With the local need for the compressor station in question, opponents argue that a significant quantity of natural gas will be exported to Canada, instead of benefiting New England residents. In Canada, the gas would be liquified for transcontinental shipment. Enbridge denies the claim, but the northern section of the Atlantic Bridge project terminates in Nova Scotia where major liquefaction plants have been developed or are currently under development. Liquefaction plants take natural gas and turn them into a liquid through a super-cooling process for the purposes of transportation and export.
Environmental injustices and public health concerns have plagued the Fore River Basin for years. FRRACS has resisted the construction of this facility since its inception. Activist groups like 350Mass, The FANG, Extinction Rebellion, Mothers Out Front, our TakeBackTheGrid campaign, and various MA Congresspersons have stood beside FRRACS in this fight. The ruling to vacate this air permit offers the vocal opposition some time to reorganize, even as potentially illegal construction continues.
The history of this air permit dates back to March 2017 when it was originally drafted and approved by the MA DEP. During the public comment period, a Health Impact Assessment (HIA) was performed by the MA Department of Public Health (DPH) and ultimately approved in July 2019 (but not before Enbridge sued the MA DEP for supposed delays). An earlier air quality permit appeal process in May 2019 was mired in scandal – the DEP had received 759 pages of air quality data from the lab which was not submitted to the case until three days after it had been received (and the day before the final hearing was scheduled). Enbridge and the DEP are now jointly fighting the residents of the Fore River Basin to justify the construction of this facility that further dooms Weymouth and the planet. The arguments for vacating the permit focus on the following:
The evaluation of the Best Available Control Technology (BACT) The presence of both existing emissions from other facilities and anticipated emissions from the compressor stationEnvironmental Justice Policy violationsNoise violations
Best Available Control Technology (BACT)
The Best Available Control Technology (BACT) is a five step federally-approved standard for reviewing and selecting technologies that cost-effectively control pollution from newly built or modified industrial facilities or power plants. A primary dispute within the approved air permit is the legitimacy of the Best Available Control Technology (BACT) selection process.
The DEP approved the SoLoNOx turbine as the BACT to generate the electricity to power the entire compressor station. The turbine will burn a portion of the gas that travels through the pipeline to generate that electricity. The petitioners (Weymouth residents) contend that Enbridge and the DEP improperly rule out the zero-site-emissions electric motor as a BACT and wrongly determine that adding further control technologies to the SoLoNOx turbine (or a more basic turbine generator) is not cost feasible.
In the draft air permit, the DEP accepted Enbridge’s explanation that an electric motor would require substantial electric infrastructure investments ($9 to 12 million). This would only constitute about 2% of total project costs to ensure a zero-emissions technology, but the DEP accepted Enbridge’s claim. The petitioners dispute the claim that electrical infrastructure investments would be substantial on several grounds – the most compelling (to the First Circuit judges) being the second: No one has ever performed a thorough Step 4 analysis of the electric motor in the prescribed BACT determination process. The First Circuit judges ultimately accept the petitioners’ argument that Enbridge does not provide sufficiently detailed calculations of the anticipated cost efficacy of an electric motor in order to eliminate it as the BACT in Step 4.
The First Circuit judges accept the petitioners’ argument regarding the DEP’s incomplete Step 4 BACT analysis, but in all other arguments they side with the defendants. The petitioners take exception to the DEP’s treatment of a lower-quality turbine with a control “add-on” technology, known as a selective catalytic reduction (SCR), as an alternative to the SoLoNOx turbine. This combined SCR and “older turbine” BACT is slightly less cost-effective, but close enough to the upper limit of what was allowable in Step 4. The threshold, set in 1990, has not been adjusted for inflation. The First Circuit judges refuse the petitioners’ request to account for inflation.
The judges also credit Enbridge and the DEP with an unearned impartiality by editorializing the DEP’s purpose in the BACT evaluation process. The petitioners argue that the technology that achieves the best result should be selected (i.e. the SCR and old turbine combination). In response, the First Circuit judges suggest that DEP’s goal may be to promote technological development which could benefit the Commonwealth at a later date. The judges also suggest that it is arduous to evaluate “every” combination of technologies. These arguments functionally condemn the Town of Weymouth to even poorer air quality based on an arbitrary conjecture that “others” will benefit at a later date from the implementation of better compressor turbine technology today and that more rigorous evaluation is burdensome to a multinational energy corporation.
The petitioners in this case have two concerns over the way that toxic emissions from the compressor station are calculated and modeled in the air permit. They first note that the DEP violated the MA Clean Air Act (CAA) by not accounting for the existing background levels of air toxins. The DEP’s long-standing policy (1989 Division of Air Quality Control Air Toxics Implementation Update 2) has been to compare emissions from new sources without regard for background levels. This policy leads to environmental sacrifice zones with run-away ambient air toxin levels as it accepts the existing air quality as baseline and would conceivably add compressor stations with similar emission ad infinitum. Levels of benzene, acrolein, and formaldehyde at the site are already above the allowable test limits, but because the modeled maximum contributions from the compressor station would not make a proportionally significant change, this information is deemed irrelevant to the final decision.
The First Circuit judges then make an insulting analogy to a baking dilemma whereby they compared background air toxins to a baker being asked to share some sugar with a neighbor before first verifying that they would still have enough for their own confectionary pursuits. The First Circuit judges suggest that incorporating background levels of air toxins in an air permit application is akin to risking the possibility of giving away so much sugar to your neighbor that you can no longer bake cookies in your free time! The Commonwealth of Massachusetts must ensure that communities that are already suffering from the negative health effects of high levels of industrial pollution are not subjected to incrementally higher levels every few years just because they are not “virgin territory”, to quote Governor Baker.
The petitioners’ second concern regarding air toxins is related to the startup emissions of the SoLoNOx turbine. The turbine will start up more than once per day. An independent assessment made on behalf of the petitioners shows that the formaldehyde levels detected at the property line would exceed allowable levels when startup processes fail or take longer than anticipated (which is not uncommon). The First Circuit judges both openly accept that a slight excess in formaldehyde emission would be acceptable and do not request more rigorous startup failure emission modeling as they did for the BACT evaluation.
Other Concerns and Conclusion
The petitioners demand that the DEP must comply with the Environmental Justice Policy Act of 2017 whereby all state agencies must “proactively promote environmental justice in all neighborhoods”. The HIA notes that elevated rates of diseases related to industrial pollution, such as lung and bronchial cancers and cardiovascular disease, exist in several of the communities adjacent to the compressor station site like Braintree and Quincy. The presiding judges acknowledge that the goal of the EJ Policy Act has not been achieved by the DEP since they fail to develop specific strategies to enhance public participation and analysis criteria. Nevertheless, they choose not to deny the air permit on the grounds of EJ Policy Act violations or require any further actions to demonstrate compliance.
Environmental justice laws must be strengthened at the state level, and must be equipped with mechanisms for rejecting projects that would add pollution to regions with elevated pre-existing levels of pollution and pollutant-related health conditions. Enhanced review and analysis for these projects should be prepared with meaningful participation at an early stage of deliberation. A self-appointed representative delegation of the surrounding community must be involved and the resulting review and analysis should be used to inform final decisions.
The petitioners finally argue that noise levels will exceed EPA and WHO recommendations. The HIA clearly states that excessive noise can lead to significant chronic health concerns. The First Circuit judges dismiss noise levels as “nothing more than a nuisance”.
Ultimately, the First Circuit judges moved to vacate the air permit in light of the arguments made in favor of a more thorough BACT evaluation process, but the failures of the MA DEP over decades to keep this community safe from air pollution and excessive noise are glaring. Weymouth and Quincy will continue to face environmental injustices at the hands of state and local officials until someone in power has the courage to recognize the decades of negligence that the Fore River Basin has endured. TakeBacktheGrid will monitor these proceedings closely.