Environmental Racism and Conservation Easements

Farmland real estate values of conservation easements granted to African-American landowners between 2011 and 2015, as tracked by the Black Family Land Trust.

I have to give Governor Ralph Northam credit: It took a lot of guts to remove two members from the State Air Pollution Control Board knowing full well that it would open himself to charges of indifference to environmental racism.

Earlier this week, Northam informed Rebecca Rubin and Samuel Bleicher that they would be removed from the seven-member board, reports the Richmond Times-Dispatch. Environmental groups immediately connected the decision with concerns they had expressed about “environmental justice” in the Union Hill community of Buckingham County, where a predominantly African-American community would be exposed to low levels of pollution from an Atlantic Coast Pipeline compressor station. Northam has denied that his decision to replace the two air board members is tied to an upcoming vote on the compressor, but that hasn’t stopped some foes from doubling down on the race card as a way to halt construction of the compressor station and pipeline.

“Governor Northam has now officially taken ownership of the Atlantic Coast Pipeline and ownership of this compressor station, a facility which involves strong elements of environmental racism,” said Harrison Wallace, Virginia director of the Chesapeake Climate Action Network & CCAN Action Fund.

Apparently, Northam isn’t buying that argument, although it’s hard to know what he thinks because he has not spoken publicly about the environmental-racism issue. The issue can be boiled down to this: About 80% of Union Hill residents are African-American. While Dominion says that the compressor station will have state-of-the-art pollution controls meeting the strictest standards in the state, foes say residents will be exposed to elevated levels of carbon monoxide and nitrogen oxide, putting their health at risk. You can read a detailed explanation of the allegations in a Southern Environmental Law Center letter to Michael Dowd with Virginia’s Department of Environmental Quality.

For purposes of argument, let’s grant the proposition that the compressor station would pose a small but measurable health risk. (I don’t know that to be the case, but I want to set that issue aside to get to the meat of my argument.) In a 600-mile pipeline with three compressor stations routed through demographically mixed counties, it is inevitable that the pipeline will encounter minority communities. The standard under federal law is whether African-Americans are disproportionately impacted by the pipeline route. By focusing on the impact on Union Hill to the exclusion of many white communities along the route, pipeline foes have created a new standard: Does the pipeline route impact any African-American community? And if it does, some critics assert, it constitutes environmental racism.

I’ve made that point in past blog posts, but now I want to expand on it. The irony here is that one can make an argument that the system promotes social inequity — but not in the way pipeline foes suggest. If you’re looking for disproportionate impact, look at the racial distribution of conservation easements that protect landowners from pipelines, highways, transmission lines and other infrastructure projects from intruding on their land. It doesn’t take a planning Ph.D. to predict that conservation easements as well as the tax benefits and land protections they confer are rewarded overwhelmingly to white landowners — especially wealthy white landowners.

The tax benefits are substantial: federal income tax deductions, a state tax credit equal to 40% of the value of the easement, estate tax reductions, and property tax deductions. So generous are the tax deductions that the state has capped the value of tax credits that the Department of Conservation can grant in any one year at $75 million. Easements are in especially great demand by gentleman farmers — owners of horse farms, vineyards and the like — who have spectacular vistas to protect. Small farmers set amidst mundane corn fields and timberland have far less incentive to pursue obtaining the easements.

The Virginia Outdoors Foundation, which holds the conservation easements, does not track the race of landowners granted easements. But the Black Family Land Trust (BFLT), which works to conserve black-owned farmland in Virginia, North Carolina and South Carolina, does have data which, though not comprehensive, gives a sense of the number and value of easements granted to black landowners.

The BFLT website displays data of easements granted between 2011 and 2015 in 28 designated Strike Force counties, 12 of which are in Virginia. Clearly, that does not represent a complete inventory of all the conservation easements in Virginia granted to black landowners. But the targeting of key counties likely does account for a significant percentage.

The four-year total for black landowners in Virginia’s eight targeted counties amounts to $3,o45,000. That works out to an average of $750,000 per year. That’s 1% of the total land value of conservation easements allowed by Virginia law. If we assume that the BFLT captured only half the easements granted black landowners in those years, we can guesstimate that black landowners were granted 2% of the total value of conservation easements and reaped 2% of the tax benefits. African-Americans comprise roughly 20% of Virginia’s population — a disproportionate impact if I’ve ever seen one.

(I could find no figures detailing the percentage of rural landowners, or even farmers, who were black. Nationally, black farmers tend to own smaller farms than the national average. I don’t know if Virginia is in line with national averages or not.)

When plotting their pipeline routes, the Atlantic Coast Pipeline made great efforts to avoid crossing conservation easements (although in a handful of instances it did not manage to do so). If you’re looking for institutionalized white privilege, there you have it. But the privilege is not that of the pipelines, it’s that of the white landowners. Curiously, pipeline foes and their allies in the environmental movement have ignored this gaping disparity. Why would that be? Perhaps because they are among the primary beneficiaries of the system.

Cynics might conclude that the hoo-ha about social justice at Union Hill is purely tactical, not borne of a principled concern for African-American communities. If Virginia’s social justice warriors were truly committed to fighting environmental racism, one might argue, they would target a system of conservation easements that protects wealthy white landowners far more than it protects poor black landowners. But I won’t make that argument.

Here’s the argument I will make: I don’t think the racial disparity in the dispensing of conservation easements constitutes discrimination against African-Americans. And I don’t think that the Atlantic Coast Pipeline’s selection of a compressor site in Union Hill constitutes discrimination. The Union Hill community comprises only one of many groups affected by the pipeline. I do think the racial justice angle on Union Hill is ginned up by mostly white pipeline foes desperately seeking any weapon they can to defeat the pipeline project — even if it means aggravating already-tender race relations. And I’m betting that Governor Northam is canny enough to see through the ploy.

Update: The Virginia Outdoor Foundation has responded that my view of landowners who take out conservation easements is out of date. Before 2000, a majority of easements were taken out by wealthy landowners who didn’t earn their income from farming/forestry. Today, a majority of landowners getting easements are working farmers. Read the full comment here.

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11 responses to “Environmental Racism and Conservation Easements

  1. Well, Jim, that is a very very fine post (article) indeed.

    Here are two observations.

    1/ I agree with you that “I do think the racial justice angle on Union Hill is ginned up by mostly white pipeline foes desperately seeking any weapon they can to defeat the pipeline project — even if it means aggravating already-tender race relations. And I’m betting that Governor Northam is canny enough to see through the ploy.”

    2/ As to the other argument that you do describe and suggest, but decline to pursue, I believe that we should target the current system of conservation easements that protects wealthy landowners far more than it protects poor landowners. From now on, I will make that argument all day long, everywhere I can.

    But the color of one’s skin who happens to be a landowner of the ground at issue should have Absolutely Nothing to Do with the merits of the case. This is pure racism in one of its most ugly forms, and we find it everywhere today. We need to stamp this racism out.

  2. I guess I am not familar with the idea of conservation easements.

    I am very familiar with being the target place (South Jersey) that Sierra Club members (in North Jersey) thought was the correct place to build coal power plants, and site landfills etc. But South Jersey was lucky, they had me.

  3. 1) Any doubt The Fix Is In on behalf of the pipeline was blown away by the power-play (pardon the pun) pulled by the Governor this past week. It is a very large toad but he has swallowed it and is moving on. But he is deeply in the environmentalist corner on Everything Else so I suspect the spat will be short. It is good to be the King, but to be Governor is up there.

    2) Very nice point about who gets to enjoy the financial bennies of these conservation easements, and who of course seldom will. First of course you need a big piece of land. But a nearby conservation easement (Crawford’s Knob) didn’t completely protect the Wintergreen community, which does not share the demographic characteristics of Union Hill. People need to remember that rich and privileged group is also screaming about the construction project.
    http://www.dcr.virginia.gov/natural-heritage/natural-area-preserves/crawfordknob

    3) Any other industrial facility in that same location, say a factory, needing a similar “new source” air permit would have no problem getting it. Even one producing that few permanent jobs. That compressor station does not pose any significant risk to anybody. The problem is who wants it and why. The whole issue is just a show.

  4. Steve,

    I think you missed the point here. The crux of the argument that the air board was considering was whether the permit was considered according to state law. Certainly, there was a detailed discussion of air quality issues. The Physicians for Social Responsibility brought up many areas of hazardous emissions that were ignored in the early drafts of the permit. Over time, the DEQ staff did address many of them (prompting yet another claim of the “most stringent in Virginia history.”) But significant issues remained such as GHG concerns and NOx affects on Chesapeake Bay. This prompted a curious reply from DEQ staff that the effect of airborne emissions on water quality was not under DEQ’s domain with this permit.

    You have greatly mischaracterized the effect of the ACP on Conservation Easements when you say “When plotting their pipeline routes, the Atlantic Coast Pipeline and the Mountain Valley Pipeline scrupulously avoided crossing conservation easements.”

    The ACP failed to “scrupulously avoid” conservation easements. Eleven conservation easements were drastically affected by the pipeline corridor. All had significant amounts of old growth forests and unique habitats. Many of which were considered superior to what existed in the adjacent National Forests. The disruption of construction and the altered nature of the land use will significantly alter the nature of these properties, most of which are several hundred acres in size. Imagine if these were historic homes and Dominion built a 150′ wide road through the middle of them. Dominion’s approach to this issue has been that they would pay the market rate for the acreage in the right-of-way that is affected, but because everything else would be as it was before, there really isn’t any problem. But it’s not the same as before. Your once pristine, intact domicile now has a grass highway down the middle of it. In 100 years the pipeline company might abandon it. In the meantime, you cannot use it and enjoy it as you did before.

    These properties were purchased because of their special nature with a desire to keep it that way ( with a tax break as a side benefit.) Dominion offered to exchange heavily forested lands with unique habitat for a farm and call it even. The Virginia Outdoors Foundation said that a pipeline was opposed to the concept that the easements were meant to serve. Dominion told the VOF that FERC could force them to give up the easements, and after the inducement of a free farm along with a grant of a multi-million dollar operating budget, the VOF acquiesced.

    But all of the talk about easements is far from the point of the discussion about the air quality permit. The job of our citizen boards is to act as a check on the state agency to be sure it is doing its job and not providing a political favor. The State Water Board has so far been ignorant of or has ignored this duty in its review of the water quality permits related to the pipelines. The state water quality law will be violated by the construction of the pipelines.

    With the help of the SELC, the Air Board became aware that one of the requirements of our state statute was to consider the “suitability” of the site, which specifically required an evaluation of Environmental Justice issues. This has never been discussed in any detail in Dominion’s filings at the state or federal level.

    Dominion’s truncated treatment of the issue said that the area adjacent to the compressor station was sparsely populated and had only three dwellings nearby. A survey led by Dr. Fjord, a UVA professor who is an expert in the field, identified nearly 100 households within a 1.1-mile radius of the compressor station. Seventy-five of these households have been surveyed to-date and contain 199 residents. Racial and ethnic minorities make up 83% of those residents, a far higher percentage than the Commonwealth as a whole. Many of the residents suffer from respiratory and other ailments that will be aggravated by the emissions from the compressor station.

    You are entitled to your opinion whether this is significant or not. The point is that neither Dominion nor DEQ evaluated the impacts on this nearby community from either a health or environmental justice perspective. Initially, they treated them as if they did not exist, contrary to state law.

    When the Governor received the final report from the EJ Committee that he appointed, he considered it a “draft” and paid it little attention, perhaps because it raised many important questions that had thus far been ignored.

    The most fundamental issue is the lack of any assessment of the “suitability” of the site. When asked, Dominion representatives provided no intelligible answer as to why that site had been selected.

    The Transco corridor transits Virginia from the northern border to the southern border. There are numerous locations where the ACP could intersect it. A site zoned Industrial, which is the suitable zoning for one of the largest compressor stations in the nation, was ignored in a county south of Buckingham. Why was the Buckingham location selected in an agricultural zone adjacent to a community with several hundred people? Why did the ACP claim it was a “utility” in order to get an exemption from the agriculture zoning requirements, but clearly specify that it “was not a utility” in its application for the air quality permit which allowed the compressor station to be governed by less stringent standards?

    These are crucial question thast must be answered according to state law.

    Any permitting process, at the state or federal level, is supposed to begin with the necessity for the project. This has thus far been ignored at the federal level (FERC) and in the DEQ’s water quality permitting. The basic formula in permitting energy projects is to identify the benefit from the project and use that benefit to offset its impacts.

    We have discussed that the ACP is unnecessary for Virginia to have all of the gas we need. Especially with all of the major power plants that might have needed it – now cancelled. The remaining peaking units will be located near the load centers (served by existing pipelines) not along the ACP corridor. It it is possible that few if any of those will actually be built. They will likely be displaced by batteries that provide the same service at a lower cost with more benefits.

    Southeast Virginia still has a supply issue, but even if the ACP is built it will add a 60% premium for transportation to the current price of gas. This is before the latest 40% price increase for the pipeline is considered. Hampton Roads will not attract more business by charging more for energy than other locations.

    The ACP will add billions to the energy costs for families and businesses in Virginia. There is no benefit that offsets the impacts on our air, land, water and communities. This is what the Air Board wanted to assess before making a final decision.

    Although no new information was supposed to be provided, Dominion announced a $5 million program of donations to the Buckingham community (if the pipeline is successfully constructed) prior to the final hearings.

    It seems to be poor practice to replace two of the Air Board members just prior to making a final decision. If their terms expired in June it would have made sense to replace them then, so that the new members could participate in the public comments process and discussions with the DEQ staff. Now there will be two uninformed Board members voting on a crucial project.

    The board was prepared to vote 4-2 against approving the permit, but was persuaded by the 2 members to postpone the decision until next month. Apparently leaving the opportunity for behind the scenes maneuvering. Many have questioned the timing of the replacements, making it appear that the new members have been appointed to get the vote “right.” This does not seem to align with the governor’s pronouncements that he wanted the Virginia permitting process to be based on science and as a “stringent” as possible. It appears to many that doing all that the law requires is a little too “stringent.”

    • You have greatly mischaracterized the effect of the ACP on Conservation Easements when you say “When plotting their pipeline routes, the Atlantic Coast Pipeline and the Mountain Valley Pipeline scrupulously avoided crossing conservation easements.”

      Fair enough. I should have written that the pipeline scrupulously “tried to avoid” crossing conservation easements. You are correct, they did not always succeed in doing so. Accordingly, I am editing my original post to reflect that fact.

  5. Quite an essay, Tom, but The Fix Is In. I still think any other new industrial source with the same level of emissions would be largely accepted by the community, and apparently this one is not unanimous rejected.

  6. “A survey led by Dr. Fjord, a UVA professor who is an expert in the field …” along with Tom’s remarkable exposition that conflates a mouse out in a field of corn into a rattlesnake in your infant daughter’s crib, these sorts of over the top bogus science lectures are what gives the environmental movement a bad name, and deservedly so.

    Plus, in addition to all that abuse of science and common sense, there is the blatant race baiting worthy of Al Sharpton.

    The serious issue, however, remains.

    Do these conservation easements insulate wealthy landowners from their share of the rightful burden that should be imposed fairly across all of the citizenry in the logical path of all public works projects in the state and national interests?

    If so, if those conservation easements do shield landowners, wealthy or otherwise, that should be thoroughly looked into, and likely changed. And of course, the color of their skin can have nothing to do with any such decision. Racism must be stamped out in this country.

  7. I served on the Conservation Commission of a town in CT. Our Chairman toured the country on behalf of passing the Clean Water Act, way back when, and our commission lawyer wrote CT’s conservation law. To try to correlate the racial makeup of conservation easement givers to environmental racism law is difficult. Better to look at the average income bracket of the donors. The Environmental Racism law was written to protect those without the wherewithal or political power to object, and could probably be written to apply to low income levels as well.

    And … what the VA Outdoor Foundation did was break the trust they are given to protect the lands under their protection for a few bucks. In a submission to VOF I quoted what the SELC submitted. “First, as a former official who has worked to protect the land and its resources, I believe Mr. Buppert’s conclusion is correct. … “construction of the Atlantic Coast Pipeline through eleven properties meant to be protected in perpetuity would deeply undermine the conservation easement program in Virginia and do untold harm to the conservation values of this unique region.”

    After remarks about the ACP issues we discuss here I concluded with …” I hope the VOF will not jeopardize the future of land conservation in Virginia on behalf of a pipeline that is risky from a safety, an environmental, and a financial, point of view. The ACP is neither “critical” nor “required to reduce emissions.”

    Then there is the question of toxic health hazard levels near compressor stations. The Southwest PA Environmental Health Project concluded that compressor stations only look like they do not pose a hazard because of the way the numbers are evaluated and the way the stations operate. Emission levels are not constant so the measurement of “tons per year, while common in the industry and common in the environmental field where regional air quality is at issue, is not an appropriate measure to determine individuals’ health risks which increase during episodes of high exposures.” A documentation of the emission fluctuations cannot be captured by averages.

    A study of compressor station emissions in its vicinity, Wolf Eagle Consultants performed whole air emissions sampling for VOCs, HAPs identified 14 Compounds (TICs) Chemicals identified as exceeding Texas’s ESLs including 5 types of Benzenes. “There is probably no safe level of exposure to benzene, and all exposures constitute some risk.” In another PA test the samples taken downwind of a compressor station included benzenes, methanes and chlorides among other toxics.

    ‘Blowdowns’ represent another problem with only measuring “annual averages” Trouble is …there is no data available and for this type of exposure. “Episodic high exposures are not typically documented and analyzed by researchers and public agencies.” In addition the evaluators are concerned that low levels of radioactive material are present in blowdowns.

    So, this Green Lady objects to the blithe statements that there is no health harm from emissions near compressor stations. The data is inadequate, the measurements inappropriate, and the chemicals themselves are demonstrated to pose human health dangers.

  8. Reed,

    I have already written far more than I intended, but you still appear to have a misconception about how this process has been conducted. The owners of the easements were by no means “shielded” from the effects of this project any more than the residents of Union Hill have been. Despite legal protections about what types of activities are allowed to reverse the assignment of easements, the easements were overturned and the VOF voted to allow the pipeline to occupy that land even though such a use was supposed to conform to the overall development plan of the community, which of course it did not.

    State law requires that the air quality permit assess the suitability of the site, including a consideration of environmental justice issues. Information initially provided by Dominion and used by DEQ basically said “nobody lives near the compressor station” so the impacts would not be a big deal. For the several hundred people who live within a mile or so of this industrial activity, it is a big deal and they really do exist. As human beings and our fellow citizens, the effects on their daily lives and well-being deserve a fair evaluation, as required by law. Dominion had many options of where to locate this facility. The law asks them to explain – Why here? Which has so far gone unanswered.

    Steve has described this process well, when he said “The Fix is In.” I had expected that you would be one who would support the Rule of Law. In developing your real estate projects I’m sure you observed other projects that were approved as a result of misinformation and a manipulation of the process. That is what is happening here.

    There are no facts on the record that support that this project is “in the state and national interest” as required by permits at the state and federal level. The narrative has been established through a widespread, very effective PR campaign that has created a public story that is not supported by information that is on the record. The lives of millions of Virginians will be affected as a result of this project and billions will be added to our energy costs for a pipeline that is unnecessary for us to have the gas we need.

    Our governance is becoming an exercise in political force. It is happening regardless of which party is in power. The interests of We the People, of all political persuasions, are being bulldozed to make room for projects that favor a few. The Atlantic Coast Pipeline is just one of the more obvious and flagrant examples of this abuse of power.

  9. Dear Jim,

    Good to know that the Black Family Land Trust (BLFT) exists. About 3,000 acres preserved in 3 states.

    Sincerely,

    Andrew

  10. Jason McGarvey, a spokesman for the Virginia Outdoor Foundation submits the following response:

    Your opinion that “Easements are in especially great demand by gentleman farmers — often owners of horse farms or vineyards — who have spectacular vistas to protect,” doesn’t reflect reality in Virginia. The vast majority of VOF easement donors using the tax credits since 2000 are working farmers. We conducted a survey in 2014 that yielded such findings as:

    • The overwhelming majority of landowners (90%) are managing their protected land for agricultural production or for forestry.
    • The most common ag activities being done are raising livestock (51%) and growing commercial agricultural crops (41%). Lower on the list, but still with a substantial percentage, is commercial timbering (29%). Equestrian activities were just 10%.
    • 73% said the protected land is important to their livelihood, with 31% saying it’s “essential.” Of the rest? Remember that there are others kinds of protected land besides working farms and hobby farms, such as hunting/fishing land (we have plenty of hunt clubs who’ve done easements, for instance), historic properties such as Shirley Plantation and Monticello, which are in private hands but are open to the public), and miscellaneous private properties such as Hermitage Gardens in Norfolk and numerous battlefields such as those owned by the Civil War Trust, which have used tax credits, but are really borderline public facilities operated by 501c3s.

    You can find the whole survey at http://www.virginiaoutdoorsfoundation.org/2014/11/survey-finds-vof-easements-largely-protecting-working-farms-forestland/.

    Your statement reflects an outdated view of land conservation in Virginia. Before 2000, the vast majority of easement donors were mostly wealthy landowners who didn’t earn their income primarily from farming/forestry. That hasn’t been the case for well over a decade. The transferable tax credits have created much more demand among land-rich, cash-poor landowners, especially in hot spots like Southside and Southwest. I don’t think they would take kindly to being called “gentleman farmers.”

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