The government's energy regulator is facing allegations of cherry-picking data to approve pipeline projects that would disproportionately harm communities of color.
According to academics, attorneys, and non-governmental organizations, the Federal Energy Regulatory Commission used unreliable statistical methods in its analysis of the proposed Atlantic Coast Pipeline, masking its high cost to African-American and Native-American communities.
While the Commission concluded that the pipeline poses no environmental justice concerns, these minority groups say that their environment, health, and culture will be disproportionately imperiled if the development goes ahead as planned. FERC faced similar accusations over the Sabal Trail pipeline in 2016, indicating a pattern in how the federal government manages to force unwelcome energy infrastructure through vulnerable communities.
The ACP is a 600-mile underground infrastructure project that will transport gas from hydraulic fracturing facilities in West Virginia down to Robeson County in North Carolina. The project includes three compressor stations. Dominion Energy is the lead developer on the pipeline, and President Donald Trump has labeled it a "priority" project.
FERC conditionally approved the ACP in October of 2017, after its Environment Impact Statement concluded that there would be "no disproportionately high and adverse impacts on environmental justice populations." Duke Energy has claimed that the pipeline will benefit economically distressed communities by attracting jobs and development.
Many people living in the area disagree. "It's going to be a lot of pollution in our community," says Robie Goins, a Lumbee Native American who lives in the evacuation zone of the pipeline's proposed route. "The people who are in low-income, poverty-stricken areas are targets for these types of projects. It's like we're being targeted by the big corporations. It's like they want to kill us all."
According to Ryan Emanuel, an associate professor at North Carolina State University and a member of the Lumbee Indian tribe, Native Americans make up 1.2 percent of North Carolina's population, yet constitute more than 13 percent of those living within one mile of the pipeline's proposed route, which would affect more Native Americans than the Dakota Access Pipeline.
"As a Lumbee person, my knowledge about very large indigenous populations in North Carolina initially set off an alarm for me when the draft EIS was published. From my social and cultural context, I knew that a pipeline that included 30,000 American Indians in the project area could not claim 'no disproportionate impacts,' given that we are such a small fraction of the overall reference population," he says.
On May 15th, a coalition of environmental groups based in North Carolina filed a civil rights complaint to the Environmental Protection Agency against the North Carolina Department of Environmental Quality, accusing it of discriminating based on race and color when it issued permits for the pipeline. The complaint further alleges that the state relied on FERC's flawed analysis when it should have conducted an individual assessment, and that families living along the pipeline's route will be forced to breathe toxic air pollutants.
The National Environmental Policy Act requires FERC to review any major federal projects that could affect the environment. In response to President Bill Clinton's 1994 executive order on environmental justice, the EPA issued guidance on addressing the impacts on vulnerable communities. Yet the EPA's guidelines leave the details to agencies themselves. And NEPA doesn't require that agencies choose the best course, but only that they take a "hard look" at the issues at stake.
In North Carolina, FERC concluded that 20 of the 42 census tracts within one mile of the proposed route had a minority population large enough to be flagged as an "environmental justice" community. But this conclusion hinges on some questionable math, the civil rights complaint alleges.
FERC only flagged census tracts where minorities were 10 percentage points higher than the county average, or at least 50 percent of the population. But by comparing populations within census tracts to the county average, FERC repeatedly shifts its baselines; each of the eight counties through which the pipeline runs has a distinct demographic make-up. That means a minority community is unlikely to be flagged unless it sits within a largely white county.
"I think it's a very deliberate strategy to avoid finding disproportionate impacts in communities of color," says Hope Taylor, executive director of Clean Water for North Carolina, one of the non-governmental organizations involved in the complaint.
In addition, census tracts are too broad to yield any meaningful information, according to the Southern Environmental Law Center. These can encompass large areas, with the pipeline affecting only a fraction of residents. FERC's analysis is not granular enough to reveal who exactly will be affected. Census tract 108 in Nash County, for example, is 20 percent African American. FERC concluded that there were no environmental justice concerns in the tract—yet almost 50 percent of residents along the pipeline route itself are African American.
The most egregious misstep in FERC's analysis is the failure to weight counties by population size, according to Emanuel, which he says could have led FERC to underestimate the impact on minorities.
"When you have 10 times more American Indians living in the project corridor than the state population, that is a textbook definition of a 'disproportionate impact,'" Emanuel says. "If you're using a mathematical tool that can't recognize that, then that tool is giving a false negative reading. It's telling you there's no problem when there really is a problem."
Emanuel is working on an improved mathematical model to assess the impact of the ACP. Separate analysis by RTI International, an independent think tank based in North Carolina, also concluded that counties crossed by the proposed ACP route collectively have a significantly higher percentage of minority populations than the average county in the state.*
FERC's doubtful statistical analysis is not unique to this pipeline. Nor was it unforeseen: In its guidance to agencies on environmental justice, the EPA warns government analysts against selecting inappropriate geographical units that might "artificially dilute or inflate" the affected minority population. Indeed, it warns explicitly against the precise distortions that FERC committed in its analysis of the ACP.
"Pockets of minority or low-income communities, including those that may be experiencing disproportionately high and adverse effects, may be missed in a traditional census tract-based analysis," the EPA's guidance document says.
This kind of distortion was the basis of a lawsuit from the Sierra Club in 2016, which challenged FERC on its methodology for another project, the Sabal Trail pipeline. In that suit, the advocacy group argued that FERC's environmental justice analysis was "arbitrary and capricious" based partially—again—on the inappropriate choice of census tracts as a unit of measurement.
In the 2016 case, the judge ruled against the Sierra Club: He decided that, because FERC had not breached the law because the agency had technically followed all the rules. His decision highlights the difficulty that minority communities face in fighting back against polluting infrastructure and unjust planning decisions.
"These cases are tough to win. There have been very few wins on environmental justice claims under the National Environmental Policy Act," says Elly Benson, the Sierra Club attorney who challenged FERC on its Sabal Trail analysis. "Part of the problem is that the courts are very deferential to agencies. For Sabal Trail, for example, we think FERC's conclusions were completely off-base and their analysis was completely wrong, but they didn't ignore the issue entirely, and so the court deferred to their analysis, even though it was shoddy."
The Sierra Club lawsuit isn't the only bad omen for communities fighting the ACP. Analysis by a group of public policy experts in Illinois in 2005 found that 93 percent of environmental impact statements offered the pat conclusion that the projects in question would have no impact on environmental justice communities; more than half did not even consider communities of color. The civil rights complaint lodged by community groups faces a similarly uphill battle, as the EPA's Office of Civil Rights is notoriously evasive when it comes to dealing with these challenges.
Meanwhile, the ACP is facing a raft of other criticisms, including over its projected contribution to climate change and impact on wildlife. In May, the United States Court of Appeals for the 4th Circuit nullified a key permit for the pipeline, claiming that the U.S. Fish and Wildlife Service's requirements were so vague that they undermined the Endangered Species Act. FERC also stands accused of ignoring other factors that enhance vulnerability, such as pre-existing polluting infrastructure.
Several groups have called on FERC to re-assess its decision, emphasizing the rare dissenting vote by one of the agency's commissioners, Cheryl LaFleur. The lone sitting Democrat, LaFleur expressed concerns over the environmental impact of the project.
A spokesperson for FERC declined to comment, citing the commission's policy not to respond to matters pending final court or agency decisions.
FERC is currently soliciting public comments on whether to revise its process for approving natural gas pipelines, including its assessment of environmental impacts. The solicitation is unlikely to lead to "any wholesale changes to its existing politics," says Barbara S. Jost, a partner at law firm Davis Wright Tremaine LLP, who regularly represents utilities and gas producers before FERC. She adds that any changes would take "prospective effect only," and therefore would not affect FERC's ACP analysis.
New Landscapes is a regular series investigating how environmental policies are affecting communities across America.
*Update—June 7th, 2018: This article has been updated to remove reference to a map that was not included in the civil rights complaint.