Court rulings stall controversial plastics factory in Louisiana

"This is the beginning of the end for Formosa," Lavigne told EarthBeat upon learning that a federal permit for the project had been suspended.

On Nov. 18, Judge Trudy White, of Louisiana's 19th Judicial District Court, returned air permits to state environmental regulators so they can conduct a more thorough evaluation of the impact of the complex's projected emissions on Black residents living nearby.

That move came days after the Army Corps of Engineers suspended a permit that would have allowed Formosa to build in wetlands. In a notice filed Nov. 13 in U.S. District Court in Washington, D.C., the Corps said that a portion of its permit required reevaluation and that a more extensive review was also possible.

The pause on permits presents new legal obstacles to construction of one of the world's biggest petrochemical facilities, which has already been delayed because of the COVID-19 pandemic.

Nevertheless, some work continues at the site. A company spokesperson said Formosa hopes the permit issues are resolved expeditiously.

FG LA LLC, a Louisiana affiliate of Taiwan-based Formosa Plastics Group, plans to build its 14-plant complex, known as the Sunshine Project, in the western district of St. James, within an 85-mile corridor along the Mississippi River that is home to at least 140 petrochemical plants.

Louisiana Gov. John Bel Edwards and many state and local lawmakers support the project, which they say will bring much-needed jobs and millions of dollars in tax revenues to southern Louisiana.

But local residents, community groups and environmental organizations have persistently fought its construction, saying the complex would pollute a predominantly Black community already overburdened with industrial toxics, and that it would degrade wetlands and add to the ocean plastic pollution crisis.

The recent discovery of an unmarked burial site for enslaved people on the border of the Formosa property has intensified their concerns.

Early this year, Formosa opponents filed lawsuits challenging federal and state permits critical to the project's construction. In January, the Center for Biological Diversity, Louisiana Bucket Brigade, Healthy Gulf and Rise St. James sued the Army Corps of Engineers over its approval of a permit for building in a wetland.

The plaintiffs argued that the permit violated the National Environmental Policy Act, the Rivers and Harbors Act, the Clean Water Act and the National Historic Preservation Act.

Rather than defend its permit in court, the Corps opted for suspension. In its statement to the court, the agency acknowledged that during its review of alternative locations for the Formosa complex, it had incorrectly eliminated for consideration five sites in neighboring white-majority Ascension Parish. Although that reason alone was sufficient to suspend and reassess the permit, the Corps said it "may also consider additional issues as appropriate during the re-evaluation."

Plaintiffs in the lawsuit have since asked the Corps for a public hearing and expanded analysis of the plant's environmental justice, wetlands and pollution impacts.

"At a time when Americans are recognizing the role of systemic racism and unconscious racial bias in our country, it is problematic that a predominantly white parish was eliminated based on erroneous information and a flawed analysis in favor of a predominantly Black district in St. James Parish. The project deserves a far deeper and more probing environmental justice analysis than what the Corps has provided," the plaintiffs wrote in a letter signed by more than 20 groups.

In mid-February, the Louisiana Bucket Brigade, Rise St. James, the Sierra Club and other groups challenged the air permits that the Louisiana Department of Environmental Quality had issued for Formosa a month earlier.

Those permits allow the Formosa facility to emit more than 800 pounds of toxic pollutants, nearly 6,500 tons of pollutants known to cause ground-level ozone and respiratory ailments, and 13.6 million tons of greenhouse gases annually, according to The Advocate, a Louisiana daily.

The plaintiffs argued that the Department of Environmental Quality shirked its constitutional duty to protect the public and the environment, because Formosa's own modeling showed its emissions would exceed federal air-quality standards.

In late February, St. James resident Beverly Alexander, represented by the Tulane Environmental Law Clinic, also filed a legal motion challenging the state's air permits. Alexander claimed the Department of Environmental Quality used 2011 cancer risk and respiratory hazard data for its required environmental justice assessment of the plant, instead of more recent available data.

Unlike the 2011 computations, the more recent information took into account an influx of new plants into St. James, including Formosa, and showed an increase in air toxicity for the area's Black-majority communities.

White, the Louisiana judge, apparently was sympathetic to that assessment. In an oral ruling delivered via Zoom, she spoke about environmental racism in state institutions. White told the Department of Environmental Quality and company attorneys that the air permits required better evidence of results and a more thorough environmental justice assessment.

Lisa Jordan, a lawyer with the Tulane law clinic, said White's ruling "is not a final judgment," but allows the Department of Environmental Quality to revise the permit before legal actions against it proceed.

"The agency could cross some t's and dot some i's, write a new decision document or amendment, or do nothing," Jordan said.

Janile Parks, director of communications for Formosa's Louisiana operations, offered a different assessment.

"The Court appears to have ruled on the merits of the case," Parks wrote in a press release issued after White's ruling. "The permits issued to FG by [the Louisiana Department of Environmental Quality] are sound. FG intends to explore all legal options."

Parks said that while the company was "disappointed" in the Corps' decision to suspend its wetlands permit, the federal agency's action was not unusual.

"Temporary suspension during permit re-evaluation is a common practice utilized by the Corps and FG fully expects the suspension will be lifted, and the permits reinstated, after completion of the re-evaluation," Parks said.

Julie Simmonds, an attorney with the Center for Biological Diversity, believes the Corps' temporary suspension of the wetlands permit could result in a complete revocation of the Formosa permit and the end of the project, or relocation of the plant.

"The former without the latter would be highly preferable," Simmonds wrote in an email to EarthBeat. "This project should not be built, anywhere. Another option is that the Corps purportedly 'fixes' its deeply flawed decision analysis and we will be back in court."

Meanwhile, Lavigne, of Rise St. James, is optimistic.

"Formosa will soon be gone," she said. "They call themselves the Sunshine Project. They will not see sunshine."

[Claire Schaeffer-Duffy, a freelance writer, lives and works at the Sts. Francis and Therese Catholic Worker in Worcester, Massachusetts.]