BY STAG LIUZZA • OCTOBER 7, 2022
On September 14, 2022, environmental advocates won the reversal of Air Permits issued for the construction of a new chemical manufacturing complex. The Formosa Plastics Group proposed construction of a new chemical manufacturing complex on a 2,400-acre site in St. James Parish. The 2,400-acre site …
FILED UNDER: IN THE NEWS
RARE VICTORY FOR ENVIRONMENTAL JUSTICE IN LA
BY STAG LIUZZA • OCTOBER 7, 2022
On September 14, 2022, environmental advocates won the reversal of Air Permits issued for the construction of a new chemical manufacturing complex. The Formosa Plastics Group proposed construction of a new chemical manufacturing complex on a 2,400-acre site in St. James Parish. The 2,400-acre site is located adjacent to Welcome, Louisiana in St. James Parish. Welcome is an African-American community of roughly 800 persons located in an area unfortunately known as Louisiana’s Cancer Alley.
DESPITE AIR QUALITY CONCERNS, LDEQ ISSUES AIR PERMITS FOR NEW CANCER ALLEY FACILITY
Louisiana’s Cancer Alley is already home to approximately 150 refineries, industrial plants, and chemical facilities. These plants emit considerable air pollution causing Welcome to be in the bottom 1% of air quality with respect carcinogens. Despite this, the Louisiana Department of Environmental Quality (LDEQ) issued 14 air permits for 14 separate plants in the proposed Formosa Facility.
ENVIRONMENTAL ADVOCATES CHALLENGE THE ISSUANCE OF THE AIR PERMITS
The proposed complex would use ethane and propane as feedstock to make ethylene and propylene, and ultimately a variety of products used in plastics manufacturing. As envisioned, the facility would emit substantial quantities of air pollutants into the already polluted air around Welcome. Due to this, environmental advocates, such as the Bucket Brigade, Sierra Club, Earthworks, and the Center for Biological Diversity challenged the issuance of these permits. The challenge was assigned to Judge Trudy White of the 19th Judicial District Court of East Baton Rouge Parish. These groups challenged the issuance of the permits based on the Clean Air Act, Louisiana Law, and notions of environmental justice.
FORMOSA’S OWN MODELING SHOWS EXCEEDANCE OF EPA LIMITS
Judge White agreed with the Environmental Advocates and residents of Welcome finding that “LDEQ’s interpretation fails to comply with the Act’s mandate, and LDEQ should have denied [the] application.” The Judge noted that Formosa’s own modeling report shows that when the Facility operates, the surrounding air will fail to meet EPA limits for particulate matter and nitrogen dioxide.
LDEQ AS THE PRIMARY TRUSTEE OF LOUISIANA’S ENVIRONMENT MUST PROTECT THE RIGHTS OF THE PUBLIC
Judge White ruled that the LDEQ is Louisiana’s primary public trustee of the environment under the Louisiana Environmental Quality Act. Therefore LDEQ “must act with diligence, fairness and faithfulness to protect this particular public interest in the resources.” This role “does not permit [LDEQ] to act as an umpire passively calling balls and strikes for adversaries appearing before it. Judge White concluded the rights of the public must receive active and affirmative protection at the hands of the commission.
LDEQ’S ISSUANCE OF THE FORMOSA FACILITY AIR PERMITS WAS ARBITRARY AND CAPRICIOUS
Judge White ruled LDEQ’s unsupported rejection of modeling data that contradicts the agency’s conclusions was arbitrary and capricious. LDEQ’s authorization of public health violations, without evidence to show no means of avoiding the risk, was arbitrary and capricious. This violated the agency’s public trust duty.
RESIDENTS SUBJECT TO CUMULATIVE IMPACTS OF CANCER ALLEY AIR POLLUTION
Welcome residents challenged LDEQ’s determination that “emissions…will not…adversely affect human health or the environment.” Judge White found that EPA evidence shows these residents already face some of the worst risk of cancer from industrial air pollution in the nation. The proposed Formosa Facility air permits would greatly increase the amount of cancer-causing toxic air pollutants emitted in the area. These emissions include ethylene oxide, a toxic air pollutant that is a known human carcinogen. Ethylene Oxide is already one of the main pollutants responsible for EPA’s high cancer risk ranking for the area. The permits that LDEQ issued to FG LA allow the company to emit 7.7 tons per year of ethylene oxide and 36.58 tons per year of benzene.
LDEQ FAILED TO CONSIDER CUMULATIVE IMPACTS
Despite poor air quality in Cancer Alley, LDEQ admitted that it failed to perform a cumulative assessment before issuing permits. Due to this, LDEQ’s conclusion that there would be no adverse effects to human health was deemed arbitrary and capricious. The Court ultimately ruled that LDEQ violated its public trustee duty by failing to support the claim that residential areas would not be exposed to ethylene oxide concentrations beyond EPA ‘s cancer risk limit.
LDEQ FAILED TO CONSIDER ENVIRONMENTAL JUSTICE
It was also found that LDEQ failed to perform a constitutionally mandatory environmental justice analysis. LDEQ had stated that residents of Welcome would not bear a disproportionate share of negative environmental consequences. However, the record shows that the project’s emissions have the potential to result in particularly harmful health consequences for members of the public nearby. Based on this, the Court found that LDEQ’s failure to consider those effects was arbitrary and capricious. Within the context of an environmental justice analysis, the Court found LDEQ’s conclusion that there are no better alternative sites was arbitrary.
FAILURE TO CONSIDER CLIMATE IMPACTS
Judge White ruled LDEQ’s failure to fully weigh environmental harms of these permits, renders its cost-benefit as arbitrary and capricious. LDEQ had determined that “the social and economic benefits of the proposed project will greatly outweigh its adverse environmental impacts”. However, LDEQ failed to consider the “climate-driven disasters fueled by greenhouse gases on environmental justice communities and their ability to recover.
ENVIRONMENTAL JUSTICE PREVAILS
In Louisiana, industry typically wins when states are trying to lure global chemical conglomerates to construct new plants. Lost in the shuffle are residents like those of Welcome, Louisiana. Though Louisiana’s primary public trustee, LDEQ, submitted to industry, Judge White stood up for the disadvantaged citizens of Cancer Alley. We congratulate these advocates and praise Judge White for a just ruling.
We prefer doing to talking (except in court), We take the bull by the horns and give you clear and practical advice. Personal, to the point, and in plain language. Any questions? Feel free to call or to drop by.