Residents and environmental groups opposed to the proposed construction of a $9.4 billion petrochemical facility in a majority-Black section of St. James Parish scored a victory on Wednesday, when a state court in Baton Rouge vacated more than a dozen air permits the Louisiana Department of Environmental Quality (LDEQ) issued for the project.
Judge Trudy White of the 19th Judicial District Court sided with the environmental groups that challenged the LDEQ’s issuance of permits, determining that the agency violated both the federal Clean Air Act and its public trustee responsibilities, established in the Louisiana Constitution, in issuing the permits to FG LA LLC, which is part of the Taiwan-based Formosa Plastics Group.
“Stopping Formosa Plastics has been a fight for our lives, and today David has toppled Goliath,” Sharon Lavigne, founder and president of the nonprofit RISE St. James said in a statement released by Earthjustice, the legal nonprofit representing the residents and environmental groups in the suit. “The judge’s decision sends a message to polluters like Formosa that communities of color have a right to clean air, and we must not be sacrifice zones.”
Gregory Langley, spokesman for LDEQ, told The Lens via email that the agency “is assessing the decision and will decide a path forward after we review our options.” Janile Parks, director of community and government relations at FG, told The Lens that the company disagrees with White’s ruling and is also reviewing its legal options.
Formosa’s so-called Sunshine Project would encompass 2,400 acres next to Welcome, Louisiana – a majority-Black community in the highly industrialized section of St. James Parish’s 5th District – and would be located approximately a mile away from one of the parish’s elementary schools. Formosa’s proposed plant would manufacture ethylene and propylene, which are used in the production of plastics.
Gov. John Bel Edwards touted the project in 2018, claiming it would bring more than 1,000 well-paying jobs to the region. He also committed the state to a $12 million incentive package, provided in installments to the company. Environmental groups, however, scored an earlier victory last year when the Army Corps of Engineers said that it had committed errors in issuing its own permits for the facility, and pledged to complete an environmental impact statement.
Under the permits issued by LDEQ, the plant would be allowed to emit 7.7 tons of ethylene oxide annually, which the EPA recognized as a carcinogen in 2016, and nearly 37 tons of benzene annually, which is another carcinogen.*
The facility would also produce more than 13 million tons of greenhouse gases annually. South Louisiana is uniquely vulnerable to the hazards posed by climate change, which is caused by the release of greenhouse gases into the atmosphere..
In total, the LDEQ permits would have allowed Formosas to emit more than 800 tons of air pollutants per year, according to Earthjustice. LDEQ issued a prevention of significant deterioration (PSD) permit in 2020, and issued 14 permits for separate plants that would be part of the project. Earthjustice – representing various environmental and environmental-justice groups like the Louisiana Bucket Brigade, Rise St. James, the Sierra Club, and others – quickly filed suit appealing the agency’s decision to issue the permits.
LDEQ should only have issued the PSD permit — used for new facilities or facility modifications that could increase pollution — after the new facility had demonstrated it would not contribute to air pollution exceeding the Clean Air Act’s National Ambient Air Quality Standards, which govern the average amount of pollutants, over specific periods, that can be present in the outdoors without harming the public, White said in her opinion.
However, Formosa’s own modeling demonstrated that after its operations were to go into effect, the 24-hour air pollution standard for particulate matter (PM) 2.5, or soot, along with the 1-hour standard for nitrogen dioxide would be violated – and in some cases, grossly so.
Exposure to PM 2.5 has been linked to various adverse health outcomes, like aggravated asthma, nonfatal heart attacks and diminished lung capacity. Nitrogen dioxide’s presence in the atmosphere, meanwhile, can help produce acid rain. The compound has also been linked to deleterious health effects, like the exacerbation of, and in some cases, the development of, respiratory conditions like asthma.
LDEQ’s position was that Formosa’s discrete emissions, by themselves rather than in addition to existing pollution in the area, didn’t significantly contribute to violations of federal air standards, and were therefore allowable. White struck that position down on Wednesday and reversed the agency’s decision to issue a PSD permit.
“A permitting agency does not have the power to contradict the law’s plain meaning by citing nonbinding memoranda,” White said, referring to memoranda the EPA released in 2018 relating to so-called significant impact levels.
LDEQ also failed to fulfill its public trustee obligations, which are included in the Louisiana Constitution, White wrote on Wednesday. Those demand, in part, that the agency “go beyond its regulations if necessary to avoid potential environmental harm to the maximum extent possible,” she said.
The agency failed to take into account the environmental and health risks posed by the facility’s emissions, which the company’s own modeling demonstrated, she said, noting that people exposed to the plant’s pollutants for even short periods of time could face serious health consequences. By doing so, the agency failed to fulfill its constitutional public trust obligations, she said.
Anne Rolfes, director of the Louisiana Bucket Brigade, told The Lens that she’s interested in recovering whatever public money the state may have provided to Formosa as part of the project, and ensuring that it’s used in the public interest.
“That money should rightfully go to the people in the 4th and 5th district of St. James Parish, to help the people there and the local economy,” she said.
*Correction: An earlier version of this story misstated the projected emissions of ethylene oxide and benzene from the plant. (September 15, 2022)