Judge: No grounds to reverse approval of Surry biogas project

Published 4:00 pm Monday, June 12, 2023

Former Surry County Supervisor Michael Drewry has no grounds to force reversal of the county’s approval of a controversial natural gas project, a judge ruled on May 31.

Align RNG, a joint venture of Dominion Energy and Smithfield Foods, received supervisors’ 2-1 approval last year to construct a regional processing facility that would turn methane from hog manure, also known as biogas, into pipeline-quality natural gas. The facility would serve as a hub for participating Smithfield Foods farms in Sussex, Surry, Isle of Wight and Southampton counties.

Drewry, who cast the dissenting vote, resigned from the Board of Supervisors’ Dendron District seat last July, one week after filing a complaint that asked the court to declare the board’s vote “null and void” on grounds that the county Planning Commission allegedly neglected to give the written notice required under state law to all owners of abutting properties. Four landowners in neighboring Sussex County, Drewry’s complaint alleges, did not receive the required notice ahead of the commission’s Nov. 21, 2021, vote to recommend the project’s approval.

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Retired Judge James Hawks, who heard arguments from Drewry and attorneys representing the county and Align in April, ruled last month that Drewry “lacks standing” since “it is not in dispute that he attended and participated in the various meetings preceding the vote” and participated as a supervisor in the meeting where the final vote was taken. Nor does he have standing “to act on behalf of other county or state residents who may have a claim for harm or loss arising from lack of notice,” Hawks writes.

Hawks’ ruling gives Drewry 30 days to “more fully and factually state his case.”

Drewry contended in his complaint that the project, if allowed to proceed, would result in air and noise pollution, though Dabney Carr, an attorney for Align, argued at the April 28 hearing that the facility’s carbon dioxide and methane emissions would be “minimal” and “non-toxic.”

Drewry, who is representing himself as a practicing attorney, said he had anticipated a “standing challenge” and is considering taking Hawks up on his offer of time to amend his complaint.

Virginia’s Supreme Court “has consistently held that if notice procedures were not followed by a locality, the governing body did not have the legal power to take a vote and any vote taken is void,” Drewry asserted. “It is not about actual harm from a decision, it is whether the governing body had the power to take a vote.”

Methane, if emitted into the atmosphere, acts as a potent greenhouse gas, but can be captured, according to Align officials, by using an anaerobic digester and covered lagoons. From there, it would travel through a 65-mile pipeline network that would cross the Blackwater River and two swamps before ending up at the Surry site, where the collected gas would pass through membranes to remove hydrogen sulfide and carbon dioxide, leaving 99% pure natural gas.

Align contends the reduction in greenhouse gas emissions from participating farms will be roughly equivalent to taking 22,000 vehicles off the road, even with the facility re-releasing an estimated 12 tons of extracted carbon dioxide annually. Company officials have also acknowledged that not all the extracted hydrogen sulfide will be turned into solid sulfur and hauled away. The amount that escapes the membranes will be fed into a thermal oxidizer, or incinerator, where intense heat will transform the gas into less-harmful sulfur dioxide. Align, as of last year, estimated around 8 tons of sulfur dioxide would be emitted from the Surry site per year.

Drewry had cited at Align’s 2022 approval vote and again at the April 28 hearing that the company had settled a lawsuit with a North Carolina-based environmental group Clean Aire NC in 2021 over alleged violations of that state’s air quality regulations at a similar processing facility at the border of Duplin and Sampson counties.

Dominion spokesman Aaron Ruby told the Times last year that even though Align’s Surry site will serve 20 farms, compared to the 19 served by the North Carolina facility, the Surry site will produce less than two-thirds of the amount of biogas as the North Carolina project and will use different technology aimed at generating fewer emissions.

A group of Surry residents hoping to stop the project at the state level had also referenced the lawsuit when speaking at a Virginia Marine Resources Commission hearing last year, though the VMRC still voted unanimously to approve Align’s request to cross the Blackwater River and two swamps at seven locations in the four impacted counties.

Editor’s note: This story was updated on June 12 at 4:27 p.m. with comments from Michael Drewry.