A state district judge sent critical air permits for a $9.4 billion Formosa Plastics complex back to state environmental regulators so they can take a closer look at the St. James Parish facility's emissions impacts on Black residents living nearby.

Nineteenth Judicial District Judge Trudy White issued the finding during a hearing Wednesday, telling the state Department of Environmental Quality to more properly evaluate the environmental justice questions surrounding the project, plaintiff's attorneys said.

White ruled two weeks after the U.S. Army Corps of Engineers announced it would be suspending its wetlands permit for the facility along the Mississippi River to review its own analysis of alternative sites and failure to look at potential sites in neighboring Ascension Parish. 

Formosa officials said White's ruling did not suspend the air permits in the interim, but her ruling does add another layer of uncertainty for a project that is expected to create 1,200 permanent jobs, tens of millions of dollars per year in state and local taxes, and millions more in spinoff benefits once built. 

Along with the Corps wetland permits and a local land use permit, the state air permits allow FG LA, the Formosa Plastics affiliate behind the project, to operate and help clear the path to significant construction investment.

Janile Parks, spokeswoman for FG LA, noted the "Court appears to have ruled on the merits of the case before all parties in the matter — including FG and LDEQ — had filed briefs detailing the facts."

Parks called DEQ's air permits "sound." "FG intends to explore all legal options,” she said.

The Corps' decision earlier this month had already halted major construction activities.

The setbacks in court for FG come as St. James officials are preparing for major tax revenue and employment losses with the imminent closure of Shell's Convent oil refinery, a mainstay of jobs and tax revenue in the parish since the late 1960s.

During a Zoom hearing Wednesday, White told attorneys and others that environmental racism exists and operates through the state's institutions — through personnel, policies, practices, structures, and history, intentional or unintentional, according to notes shared by the plaintiffs' lawyers. A staff attorney for White did not dispute the plaintiffs' recitation of the judge's words.

White also told DEQ and company lawyers that the air permits must have a complete environmental justice analysis and that DEQ did not balance pollution health risks with reasonable certainty, saying the agency made a conclusion without analysis. 

White's ruling was verbal, and a written decision had not been issued by Wednesday evening.

Gov. John Bel Edwards and local officials have supported the plant since it was announced in 2018, but it has faced considerable opposition from residents, local community groups, and national environmental organizations campaigning against the plant and plastics production in general. 

They have attacked the project in public meetings and in court over the disproportionate pollution impact they say the facility would add on long-standing, rural African American communities in western St. James. The discovery of what may be plantation-era graves on the fringes of that site that could hold the bodies of slaves has only ratcheted up those concerns.

White's ruling resulted from a February state court challenge to the air permits. The effect of the proposed air emissions and the alleged paucity of DEQ's environmental justice analysis were major features of the legal challenge.

State courts in East Baton Rouge Parish are the venue for appeals of DEQ decisions statewide.

"We are thrilled that the court saw the serious deficiencies in the agency’s anemic environmental justice analysis, some of which we presented, and told the agency that it needs to seriously consider the health impacts of this massive proposal," said Lisa Jordan, director of the Tulane Environmental Law Clinic.

The clinic represents St. James Parish resident Beverly Alexander, who intervened in the state court suit and whose arguments over DEQ's environmental justice analysis prompted the hearing that led to the ruling Wednesday.

Relying on a Tulane clinic analysis, Alexander alleged that DEQ erroneously asserted that key air pollutants in the area around the plant site had decreased since 2015 when Tulane had found they increased.

The clinic also alleged that DEQ used outdated, 2011 cancer risk and respiratory hazard data to do a required environmental justice assessment of the plant. That area of St. James is slated for a significant influx of new industrial facilities besides Formosa. 

In prior filings, the plaintiffs had also raised other questions about the strength of DEQ's analysis of impact on the area.

Last year, a joint investigation by The Advocate, Times-Picayune and ProPublica using U.S. Environmental Protection Agency modeling data found Formosa and other new industrial proposals since 2015 posed an acute impact on predominantly poor and black river communities, though white communities hardly escape it either. 

Known as the Sunshine Project, the Formosa complex will produce the raw materials for a variety of plastics and has been permitted to emit more than 800 pounds of toxic pollutants, nearly 6,500 tons of criteria pollutants known to cause ground-level ozone and respiratory ailments, and more than 13.6 million tons of greenhouse gases annually, DEQ says.

In DEQ's air permit decision, the agency challenged heavy reliance on federal modeling data used in that newspaper analysis, as simplified and representing a worst-case scenario. DEQ says it did extra investigation, considered actual conditions and found the plant would not adversely affect human health or the environment.

White made her ruling ahead of a January hearing where the parties were going to tackle the overall merits of the suit, brought originally by Rise St. James, Louisiana Bucket Brigade, Sierra Club and other groups. Alexander's motion revolved around adding data to the court record, a procedural step that usually sets the stage for the main arguments.

DEQ and FG had a deadline of Dec. 15 to file those briefs before White set it aside Wednesday.

Tulane's Jordan disagreed with Parks' analysis of the judge's ruling. She said White didn't rule on the overall case but exercised her discretion to require DEQ to consider additional information and then send a revised permit back up to the court.

Greg Langley, a DEQ spokesman, couldn't immediately comment on the ruling beyond confirming that White sent the air permits back to DEQ.

"The judge in the case issued a verbal ruling, and LDEQ is presently assessing its options," Langley said.


Email David J. Mitchell at dmitchell@theadvocate.com

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