The Louisiana Department of Environmental Quality and the Formosa Plastics affiliate behind a $9.4 billion industrial complex proposed for northern St. James Parish will appeal a Baton Rouge judge's decision to throw out state air permits for the massive complex.
In a ruling hailed by advocates as a major win in a long-running environmental fight that has garnered national attention, 19th Judicial District Judge Trudy White this month blasted the way DEQ analyzed the air pollution impacts from the Formosa plant planned for 2,400 acres along the west bank of the Mississippi River.
White found that "disproportionality and environmental justice issues are at the heart" of the litigation that community and environmental groups had brought to challenge the air permits in 2020. Her ruling marks the first time a state district court has ever thrown out a DEQ air permit on the grounds of environmental justice, advocates say.
Should all aspects of White's ruling stand, DEQ would have to rethink how it reviews major industrial proposals on environmental justice grounds and analyzes new air pollution sources and their cumulative impact.
The plant's opponents had argued that minorities would bear a disproportionate impact from the pollution of new industry.
DEQ and the Formosa affiliate, FG LA, filed notices of appeal on Tuesday and Wednesday with White, setting the stage for another round of legal wrangling over a project that was publicly announced by Gov. John Bel Edwards in the spring of 2018 with much fanfare.
Aside from confirming the appeal effort, Greg Langley, spokesman for DEQ, would only say Wednesday that the agency disagrees with White's ruling. An FG spokeswoman said the company plans to ask the Louisiana 1st Circuit Court of Appeal to affirm DEQ's decision on the company's permits and overturn White.
DEQ and FG asked that White suspend her ruling while the appeal proceeds.
Litigants who appeal a decision often must put up a bond, or a guaranteed sum of money, designed to protect the claim of the winning side while the case is on review.
FG, which intervened on the side of DEQ in opposing the lawsuit challenging the air permits, has asked for no more than a $5,000 bond. The company says the plaintiffs don't have a monetary claim, DEQ already isn't required to put up a bond for its appeal, and "any activities pursuant to the air permits" that White has thrown out won't be conducted while the case is on appeal.
In court papers and other documents, DEQ officials have said their analysis was sound, followed standard agency procedures and considered any potential disproportionate impact on the Welcome community. The plant would rely on the latest pollution controls and other measures to limit the effect of emissions and keep background air quality below state standards for safety, DEQ says.
DEQ has already won on appeal once in this case. In March 2021, the 1st Circuit found White acted too early to require DEQ to redo its environmental justice analysis before both sides could make their arguments.
DEQ had already once before reworked its environmental justice review after advocates noted the agency had relied on old federal cancer risk data to form its conclusions about disparate impact.
Once DEQ redid the analysis with the newer data, it found that some preexisting pollutant levels declined but cancer risk did rise in the vicinity of the plant by 17%.
The agency found, however, even that increased risk — which looks at additional cancer cases out of 1 million people — was not statistically significant because fewer than 900 people live near the plant and because the risk is likely overstated due to recent emissions improvements by other plants and the safety margins built into federal risk calculations.
White, in her ruling, focused on other indicators of pollution impact and exposure, including a 2019 analysis from ProPublica and The Times-Picayune and The Advocate conducted using more fine-grain federal cancer risk data.
That analysis showed the air in the area around the Formosa plant is more toxic with cancer-causing chemicals than 99.6% of industrialized areas of the country, even before the complex would make its contribution.
Plaintiffs' attorneys in the case said they were disappointed in the appeal of White's finding that DEQ violated the U.S. Clean Air Act and its state constitutional duty to protect people and the environment.
"We can always hope that LDEQ might take the opportunity to come into compliance with state and federal law. But today we look forward to defending the district court’s thorough and well-supported ruling in the appellate court on behalf of Rise St. James and its partners,” said Mike Brown, a senior attorney with Earthjustice, which is representing the community group Rise St. James in the case.
The plastics plant would create 1,200 permanent jobs, thousands more temporary construction jobs, tens of millions of dollars per year in state and local taxes, and millions more in spinoff benefits once built.
But the huge operation would emit more than 800 tons of toxic pollutants, nearly 6,500 tons of other pollutants known to cause ground-level ozone and respiratory ailments, and more than 13.6 million tons of greenhouse gases annually.
The complex would be built just southwest of the Sunshine Bridge on a strategically located river site with access to highways, railroads and pipelines.