Comments to the Federal Energy Regulatory Commission on Proposed Extension of

Certificate for Public Need and Convenience for the Atlantic Coast Pipeline, LLC,
Dominion Transmission, Inc. and Atlantic and Piedmont Natural Gas. Co., Inc. (Docket
Nos. CP15-554-000, -001; CP15-555-000; and CP15-556-000)

By: Ryan E. Emanuel, Ph.D.

Date: July 2, 2020

This agency has yet to acknowledge or discuss the merits of my prior critique of its
environmental justice analysis for the Atlantic Coast Pipeline.1 Specifically, FERC has yes to
address the fact that the core demographic test contained in its analysis, a quantitative
comparison of population data among US Census tracts making up the study area, is flawed in
specific ways. I will outline specific flaws and remedies below.

The FEIS concludes there is an absence of racial disparity in pipeline routing by counting the
number of tracts above the “meaningfully greater” threshold and comparing this number to the
total number of tracts below the “meaningfully greater” threshold.2 The FEIS presents the
“above” and “below” tallies from each state and declares, on the same page, that pipeline
impacts would be distributed through a “mix of racial/ethnic and socioeconomic areas.”3 This
analysis informs the high-level conclusion, contained in the executive summary, that “no
disproportionately high and adverse impacts on environmental justice populations as a result of
other resources impacts would be expected.”4

As I explained in 2017, this assessment is unreasonable because a head-to-head comparison of

census tracts is (i.e., the above/below comparison discussed in the preceding paragraph) is not
appropriate without first accounting for differences in population size from one census tract to
another. The 120 populated census tracts contained in the analysis range in population from a
minimum of 10 (CT 9801, Virginia) to a maximum of more than 11,000 (CT 30.01, North
Carolina). Because of large population differences among tracts, no useful socioeconomic
conclusions can be drawn by comparing the number of tracts that exceed the “meaningfully
greater” threshold to the number of tracts that do not. This is a fundamental flaw in the design of
the demographic assessment.

To be clear, this is a fundamental design flaw because it prevents a determination of whether or

not racial disparities exist in the study area compared to the reference area. In other words, it is
an analysis that cannot be used to answer one of the key questions demanded by federal
environmental justice policy5: will low-income or minority populations experience
“disproportionately high and adverse human health or environmental effects” as a result of this

1
Comments to FERC Comments to the Federal Energy Regulatory Commission on the Draft Environmental Impact
Statement for the Atlantic Coast Pipeline by Ryan E. Emanuel, Filed April 6, 2017. See also Emanuel, R. E. (2017).
Flawed environmental justice analyses. Science, 357(6348), 260–260. https://doi.org/10.1126/science.aao2684
2
FEIS p. 4-512.
3
FEIS p. 4-513.
4
FEIS p. ES-14.
5
Executive Order Number 12898: Federal Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations. (1994).
agency action? Although the FEIS identifies some of the project’s adverse effects (although the
work is far from comprehensive), the existing environmental justice analysis does not allow the
agency to determine whether or not these effects (or other, unacknowledged effects) fall
disproportionately on minority or low-income populations.

Two additional aspects of the environmental justice analysis warrant discussion, because they
run counter to federal guidance on conducting environmental justice analysis. First, the
above/below assessment lumps together all racial minorities into a single group, contradictory to
guidance from the Interagency Working Group on Environmental Justice and NEPA (IWG),
which recommends examining “meaningfully greater” thresholds for minority groups
individually,6 not only in aggregate as was done here.

The assessment also uses ten percentage points to establish the “meaningfully greater” threshold.
This is noteworthy, because FERC uses ten percent as a threshold in assessments of other natural
gas facilities. Use of percentage points instead of percent also appears to contradict IGW
guidance, which recommends a “reasonable, subjective threshold” and gives – as an example –
“ten or twenty percent.”7 Using percentage points instead of percent means that minority
populations become more difficult to detect as they become smaller.

These decisions about the design of the environmental justice analysis have real world
implications. First and foremost, these decisions had the combined effect of erasing racial
disparities concerning American Indians from the environmental justice analysis. This is a
critically important point that bears explaining in detail. To begin, nearly all of the 30,000
American Indians in the study area are concentrated in a few census tracts (i.e., 80% live in ten
of the 120 tracts). The analysis balances these tracts against census tracts elsewhere that have no
American Indian population whatsoever (there are ten such tracts in North Carolina). If all of
these tracts had similar populations, or if the two groups of tracts even had similar statistical
distributions, this would be a fair comparison. However, this is not the case. Tracts in North
Carolina with no American Indians whatsoever tend to have much smaller populations than
tracts containing the bulk of North Carolina’s American Indian population (885 people versus
1817 people, on average). Zooming out across the entire 3-state study area, a larger trend take
shape – tract population is significantly correlated with the proportion of American Indians
living in the tract (Spearman’s r = 0.25, p < 0.05). In other words, within the agency-defined
study area, American Indians make up larger percentages of high-population tracts than low-
population tracts. If the analysis were replicating the US Senate, where every jurisdiction
received equal voice, then perhaps this calculation would make sense. However, if the goal of the
analysis is to identify racial disparities, the existing design fails on this count.

The analysis also erases disparities involving American Indians through its failure to adhere to
IWG recommendations in the two areas identified above. First, in its decision to aggregate all
minorities into a single group, the analysis fails to identify disproportionately large American

6
Federal Interagency Working Group on Environmental Justice & NEPA Committee. (2016). Promising Practices
FOR EJ Methodologies IN NEPA Reviews. p. 25
7
Federal Interagency Working Group on Environmental Justice & NEPA Committee. (2016). Promising Practices
FOR EJ Methodologies IN NEPA Reviews. p. 25
Indian populations in the study area, because it cannot differentiate them from other minority
groups in the reference area. This is important in places such as Robeson County, NC, which has
a majority-minority population comprising mainly African Americans and American Indians.
By using the aggregate analysis in these areas, a tract’s American Indian population will not be
considered disproportionately large unless it exceeds the not only the American Indian
population of the reference area, but the total minority population of the reference area.

Second, by using percentage points instead of percent in its “meaningfully greater” comparison,
the analysis sets an especially high bar for American Indians, who make up extremely small
population fractions everywhere except Robeson County, NC. This means that even if the
analysis were performed on individual minority groups, American Indians would not exceed the
“meaningfully greater” threshold until their populations made up approximately a ten times
greater share of the tract population than the county population instead of a ten percent greater
share.

In reality, disproportionality is an exceedingly simple variable to compute, and it is already

defined and widely used in education, public health, criminal justice, and other disciplines.8 It is
simply the ratio of the minority population fraction in the study area to the minority population
fraction in the reference area. In this context, values greater than 1 represent adverse
disproportionalities (i.e., racial disparities). If one computes the variable for American Indians
using the agency-defined study and reference areas for the Atlantic Coast Pipeline, one will find
the disproportionality to be 1.54. This means that American Indians are 54% more likely to live
in the agency-defined study area than in agency-defined reference area.

This result is especially noteworthy, considering that the reference area (i.e., the counties through
which the pipeline would pass) already have higher American Indian populations than average
for the three-state region. Here I point out that FERC has also used entire states as reference
areas.9 Had FERC used the combined, 3-state population of NC, VA, and WV as a reference, the
disparity would be even greater.

Demographic tests are intended to help agencies acknowledge racial disparities and help
determine whether further review, analysis or outreach is necessary.10 The existing analysis does
not accomplish this goal, at least not as far as American Indians are concerned. Prior follow-up
actions by the agency, including directives to developers to communicate with Tribes along the
pipeline path, do not solve the problems of failure to acknowledge racial disparities in pipeline
siting and failure to identify adverse impacts experienced by American Indians. I will note that
in order to fulfill responsibilities under Executive Order 12898, it is often necessary to start by
determining whether the project’s impact area sets the stage for disproportionately high and

8
24. See, for example: R. J. Skiba, R. S. Michael, A. C. Nardo, R. L. Peterson, The Color of Discipline: Sources of
Racial and Gender Disproportionality in School Punishment. The Urban Review. 34, 317–342 (2002); D. L.
MacMillan, D. J. Reschly, Overrepresentation of minority students: The case for greater specificity or
reconsideration of the variables examined. The Journal of Special Education. 32, 15–24 (1998); or any of the recent
discourse about COVID-19 and racial disparities.
9
See the Jordan Cove Energy Project (including pipeline) for a recent example.
10
US EPA, O. (2014, October 22). Limitations and Caveats in Using EJSCREEN [Reports and Assessments]. Retrieved
July 2, 2020, from https://www.epa.gov/ejscreen/limitations-and-caveats-using-ejscreen
adverse impacts. Once the demographic situation is understood, the agency can move forward
with identifying what those impacts may be. As that task has yet to be accomplished, I would
recommend against extending the duration of FERC’s certificate for the Atlantic Coast Pipeline.

Regarding prior efforts, I will note that Tribes were less than responsive to the instruction that
they communicate with developers because (1) the advice contradicts FERC’s own policy of not
delegating Tribal consultation responsibilities11, and (2) the developer is not an unbiased party in
these quasi-judicial proceedings.12 Having attended and participated in meetings that involved
pipeline developer outreach, I can attest that these efforts were aimed less at collecting
information to help FERC determine public need and environmental impact and more aimed at
recruiting support for the project as proposed.

If FERC follows the advice of others to conduct a supplementary environmental review, that
would be an excellent opportunity for the agency to finally engage directly with the Lumbee
Tribe and other Tribes that have requested formal consultation on such a review. To this point, I
note that in the years since FERC’s initial certificate issuance, the Lumbee Tribe of North
Carolina, the North Carolina Commission of Indian Affairs, and the National Congress of
American Indians have all called on regulatory agencies to revoke or suspend permits and
certificates issued without Tribal Consultation. You may find a complete list of relevant
issuances by Tribal Nations and Inter-Tribal organizations online.13 Although the federal
government leaves decisions on consultation to the discretion of the agency in the case of state-
recognized Tribes, in this case Tribes have clearly met the criteria of “demonstrated interest”
described in guidance documents, at least as far as Section 106 consultation is concerned.14

11
Federal Energy Regulatory Commission. (2017). Guidelines for Reporting on Cultural Resources Investigations for
Natural Gas Projects (p. 37). Retrieved from https://www.ferc.gov/industries/gas/enviro/guidelines/cultural-
guidelines-final.pdf
12
There are numerous scholarly critiques on the conflation of non-governmental activities and Tribal consultation.
A starting point for further research is: Routel, C., & Holth, J. (2013). Toward Genuine Tribal Consultation in the
21st Century. University of Michigan Journal of Law Reform, 46(2), 417–475.
13
https://www.scribd.com/lists/23001100/In-Their-Own-Words-American-Indian-Tribal-Governments-and-
Organizations-on-the-Atlantic-Coast-Pipeline
14
U.S. Advisory Council on Historic Preservation. (2017). Guide to Working with Non-Federally Recognized Tribes in
the Section 106 Process.