RICHMOND — A year and a half after a federal court overturned a state air permit allowing pipeline developers to construct a gas compressor station in the majority-Black community of Union Hill on the grounds that environmental justice concerns hadn’t been adequately considered, the ruling continues to cast a long shadow in Virginia.
Now, a coalition of Hanover County residents and the local NAACP chapter are turning to the case, Friends of Buckingham v. Virginia State Air Pollution Control Board, as a key part of a lawsuit they’ve filed to overturn a water permit issued this spring by the State Water Control Board.
That permit, which after a full-day meeting this March narrowly won approval on a 4-3 vote, will allow a 1.7 million-square-foot Wegmans distribution center to be constructed adjacent to the Brown Grove community, founded by freedpeople in the wake of the Civil War.
For many, the parallels between Brown Grove and Buckingham County’s Union Hill, another community founded by freedpeople after the Civil War, are glaring.
“What is occurring in Brown Grove is the repetition of Jackson Ward’s history. It is the repetition of Union Hill’s history. And yet here we are today repeating the same mistakes, destroying a Black community,” Patricia Hunter-Jordan, president of the Hanover NAACP, said during a press conference April 30 announcing the lawsuit.
The suit — filed by attorney Brian Buniva in Richmond Circuit Court on April 23 on behalf of the Hanover NAACP, the Protect Hanover grassroots group and 20 local residents — makes explicit that connection, evoking the 4th Circuit’s admonition to Virginia environmental officials that “environmental justice is not merely a box to be checked.”
“At most the administrative record demonstrates an anemic effort to ensure ‘fair treatment’ and ‘meaningful involvement’ of petitioners and the Brown Grove community akin to the ‘check the box’ approach of (the Virginia Department of Environmental Quality) condemned by the United States Court of Appeals for the 4th Circuit,” the filing contends.
The Wegmans project has been controversial since its inception. The company, which is expanding operations southward down the Interstate 95 corridor, began looking in 2017 for a site for a new distribution center that could serve southern Virginia and North Carolina stores.
Wegmans believed it had found the best location on 219 acres next to Brown Grove a little less than two miles from I-95 in Hanover. The company was courted by the state and county to choose Hanover, receiving $2.35 million in grant funds from the Commonwealth’s Opportunity Fund. In December 2019, Gov. Ralph Northam’s office announced the site selection, touting the 700 new jobs and $175 million in investment it would bring the area.
“What was determined was that within Hanover County was the ultimate epicenter, if you will, of where this facility needed to be located in order to minimize the amount of over-road miles that we have,” Dan Aken, director of real estate for Wegmans Food Markets, told the State Water Control Board in March. And the site near Brown Grove, he said, was preferable to four other sites identified in the county.
Many residents of the adjoining neighborhoods disagreed. Sliding Hill and Ashcake roads, along which employees and trucks would travel, are narrow, dangerous for heavy traffic and frequently flood, they contended. Brown Grove Baptist Church Deacon Kenneth Spurlock at the April 30 news conference said some 17 crashes had occurred on Ashcake Road in front of the church in recent years; two months prior, one had damaged the sign and the church’s gates.
“Once we even had to come out of Bible study to push a car back on its wheels so that people could get out,” he said. “And now on this same road you have Wegmans which is proposing to build a distribution center.”
Wetlands impacts also proved a thorny point. State officials, relying on information from the U.S. Army Corps of Engineers, say the site is home to roughly 30 acres of wetlands, of which more than 14 will be impacted.
Opponents have been skeptical of the calculations, pointing out that the U.S. Fish and Wildlife Service’s National Wetlands Inventory shows double the number of wetlands on the site and an earlier assessment by the Corps that only six acres of wetlands would be impacted had been faulty.
Wegmans has pointed to a range of environmental protection steps it plans to take, from creating buffers along Sliding Hill Road to a stormwater detention facility on site and the purchase of credits from a wetlands bank to offset impacts, the latter a requirement of the company’s water permit.
“From an environmental perspective, we are following the Virginia DEQ procedures for avoiding, minimizing and mitigating any wetlands we will be impacting,” Wegmans director of public relations Deana Percassi wrote in an email to The Virginia Mercury. “When designing the site with our consulting civil engineers and wetland experts, we aimed to provide a site configuration that would avoid and minimize the impact to as many wetlands as possible.”
But Protect Hanover, Hanover NAACP and many Brown Grove residents argue in their lawsuit that the project’s environmental impacts will be far more extensive, citing not only wetlands loss but also “the attendant noise, traffic congestion, light sky pollution, flooding, water quality degradation, elimination of Chesapeake Bay Preservation Act resource protection and resource management areas on and off site, and air pollution caused by the hundreds of heavy diesel engine tractor-trailer trucks and 700 employee vehicles coming and leaving the site 24 hours per day, seven days per week and 365 days per year.”
At the April 30 news conference, opponents characterized the impacts as yet another chapter in a long history of their historically Black community being what Spurlock called “abused, misused and looked over time and time and time again.”
In his telling, first I-95 split the Brown Grove community in half. Later a truck stop was built, and then a landfill and a concrete plant — and now the Wegmans distribution center.
“We at Brown Grove do not — do not — oppose Wegmans building a facility,” he said. “Our opposition is against them placing this in this community, because we have dealt with this too much. … We feel we have paid our dues. We have paid the price.”
The Department of Environmental Quality, which along with the State Water Control Board is one of the respondents in the suit, did not provide a comment when asked about the lawsuit.
At the State Water Control Board’s March meeting, however, staff highlighted outreach they had made to Brown Grove Baptist Church, including a conference call in June 2020, expanded publication of notices and an offer to distribute flyers to the church, which was rejected. (The rejection, said Hunter-Jordan, was because “they wanted flyers handed out in the midst of COVID. … Our churches were not meeting at that time.”)
And while project opponents have pointed to Virginia’s Environmental Justice Act as setting a higher bar for state agencies to consider environmental justice concerns, DEQ staff noted in a report to the board that “the application for this project was received seven months before the effective date of the legislation.”
“While the legislation establishes a clear policy for the commonwealth and DEQ, it lacks specificity with regard to regulatory and procedural implementation,” they wrote. “The current regulatory process does not include requirements that speak directly to aspects of the environmental justice legislation, however, DEQ took additional steps beyond regulatory requirements in an effort to further address environmental justice concerns.”
Whether the agency and the board met the standard set in the Union Hill case is one of the questions the Brown Grove lawsuit aims to address.
Union Hill “has established an important precedent in a few ways,” said Mark Sabath, a senior attorney with the Southern Environmental Law Center who was a member of the team involved in litigating that case. “Probably the most important is just the acknowledgement … that agencies are required to consider environmental justice in deciding whether a particular site is suitable for an activity.”
“It’s encouraging that both here in Virginia and nationally, environmental justice is so much a part of the conversation now,” he said. “It still remains to be seen what federal and state agencies will actually do and how faithful they’ll be to their commitments.”