A lawsuit filed Friday says the Louisiana Department of Environmental Quality broke the law and shirked its constitutional duty to protect the public and the environment when the agency issued air permits for the Formosa Plastics complex in St. James Parish because the company's own modeling showed the plant would exceed federal air pollution standards.
For months, an array of community and national environmental groups have fought the plastics facility at each step of the regulatory path. The latest lawsuit, in state district court, sets up a fight over whether a joint venture involving the Taiwanese chemical manufacturer received the proper air permit and, ultimately, if it can go forward with construction.
Officials with FG LA LLC, the joint venture of Formosa-related companies behind the project, said in a statement this week that Formosa is expected to make its final investment decision for the $9.4 billion complex in this quarter or the next.
FG LA said this month that preliminary work has already begun on the site. The first phase of the complex's 10-year build-out is projected to be operational by 2025.
The suit brought by Rise St. James, Louisiana Bucket Brigade, the Center for Biological Diversity, the Sierra Club and others claims the complex would release 800 tons of toxic pollutants annually and surpass federal air standards for harmful micro-particulates and nitrogen oxides in poor, primarily minority communities already burdened with harmful air from existing industries.
Also, the suit alleges the complex's greenhouse gas emissions could harm a state that already faces risks from a climate change-induced rise in sea levels.
The suit claims DEQ ignored those concerns and many others, including the possible effect on possible undiscovered burial sites and what it claims is Formosa's poor environmental track record. It says the air permits were fashioned largely to authorize what the company proposed and don't offer concrete ways to ensure proposed technologies will meet the standards Formosa wanted.
"In violation of the law, LDEQ failed to discharge its responsibility to protect the public health, environment, and public safety when it granted Formosa Plastics’ permits," the suit alleges. "Unless the Court reverses that decision, the public will bear the serious risks of harm from LDEQ’s decision."
The suit was filed Friday in the 19th Judicial District Court in Baton Rouge by attorneys with Earthjustice, a nonprofit environmental law group based in San Francisco, California. The Baton Rouge jurisdiction is where challenges must be filed against DEQ's regulatory actions anywhere in the state.
Called the Sunshine Project, the Formosa complex along the Mississippi River corridor and within sight of the Sunshine Bridge would create 1,200 permanent jobs, thousands more spin-off jobs, 8,000 temporary construction jobs, $500 million in local spending and tens of millions of dollars in annual tax revenue, despite hefty exemptions, the company says.
The project has been touted by Gov. John Bel Edwards, his economic development officials and past St. James Parish officials as an important economic win for the state and is proposed in an area the parish had earmarked for industry.
The plaintiffs, who also include the environmental groups Healthy Gulf, Earthworks and No Waste Louisiana, have asked a judge to vacate the 15 permits associated with the plant, halt all actions authorized under the permits and force DEQ to reevaluate the emissions limits.
Some of the same groups sued the U.S. Army Corps of Engineers in federal court in Washington, D.C., last month over wetlands permits for the plant site's nearly 2,400 acres of farm and swamp a little more than a mile from the Welcome community and a local public school.
The air permits — 14 permits for individual production and support units at the complex and one permit looking at the overall impact — are collectively an important hurdle to start construction, serving essentially as the state's permission to run the future complex.
The permits are akin to getting permission to release exhaust from the tail pipe of a car with a combustion engine. Without that permission, the car, or the plant in this case, cannot operate.
The air permits drew more than 15,000 comments and an hourslong public hearing in July from project supporters who suggested the health risks were being overstated and from residents and environmentalists opposed to expanded petrochemical industry growth in the river corridor and additional plastics production.
"LDEQ doesn't care about people's lives. They should have consulted the citizens of St. James, not the public officials, before approving these permits," said Sharon Lavigne, founder and president of RISE St. James. "It just tells me that people in higher office can do what they want and poison an entire African American community."
Greg Langley, spokesman for DEQ, said Friday the agency doesn't comment on pending litigation.
Janile Parks, a spokeswoman for FG LA, said the company hasn't been able to review the lawsuit and can't comment on its specifics. But she said the company followed DEQ's permitting process, went through an extensive site selection process to avoid population centers and is confident the agency made an informed decision.
"LDEQ held a public hearing, received public comments and conducted a thorough review and analysis of the permit application and all public comments before permit approval," she said.
The company has promised to make investments in the surrounding community, offer job training programs for its residents and says it has spoken to hundreds of St. James residents who favor the complex's construction.
The environmental groups say Formosa's own air modeling, which the groups alleged was inadequate and downplayed risk, showed the plant would contribute to its exceeding federal air standards in northern St. James Parish and that it should be forced to prevent those predicted breaches.
According to the lawsuit, the model found the air around the plant would reach nearly 1.5 times the 24-hour federal standard for fine particulates. The model also found the federal one-hour standard for nitrogen oxides would be more than doubled.
Fine particulates are particles 30 times smaller that the width of a human hair or even tinier. They can lodge in the lungs and are believed to contribute to respiratory and cardiovascular problems.
Nitrogen oxides are created from burning fuel and can also contribute to respiratory problems, including asthma. Nitrogen oxides also can help form acid rain and harmful ground-level ozone.
In the Jan. 6 basis of decision laying out rational for granting the air permits, DEQ didn't dispute that Formosa's model predicted the standards for those federal "criteria pollutants" would be exceeded.
But the agency said that Formosa's model made its calculations based on maximum emissions levels, thus a worst-case operational scenario that was also combined with worst-case weather conditions. DEQ said that outcome was "a circumstance that is improbable at best and, given the numbers of sources modeled, likely never to occur."
DEQ added the areas that would receive the predicted air pollution were industrial areas with no residences, but, in any case, the sites that would have excess air pollution had high levels without Formosa's contribution to them and that Formosa's new contribution would be minimal.
In reaching that conclusion, the environmental groups asserted, DEQ was applying "an extralegal" regulatory regime that violates the U.S. Clean Air Act and DEQ's own rules.