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Louisiana State Court Reverses Issuance of Air Permits, Citing Environmental Justice Concerns

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On September 14, 2022, the 19th Judicial District Court revoked air permits issued by the Louisiana Department of Environmental Quality (“LDEQ”) under Louisiana’s Prevention and Significant Deterioration (“PSD”) regulations[1] for a Formosa Plastics facility (“FG LA”) planned to be built in St. James Parish.[2] The court ruled that LDEQ erred in issuing the permits, finding that the facility would violate the constitutional rights of the residents living near the site.

Although the court’s decision ultimately turned on the facility’s forecasted emissions exceeding regulatory allowances, LDEQ came under fire for multiple reasons, the most prominent of which was, in the court’s view, its deficient environmental justice analysis. While the term “environmental justice” is relatively new in Louisiana litigation, the court’s analysis roots this concept in the state’s long-established public trust doctrine.

The public trust doctrine, which is enshrined within the Louisiana Constitution, requires environmental protection “insofar as possible and consistent with the health, safety, and welfare of the people.” In the seminal case Save Ourselves, Inc. v. La. Env’tl Control Com’n, 452 So. 2d 1152, 1156 (La. 1984), the Louisiana Supreme Court observed that this is a “rule of reasonableness,” which requires an agency, before granting approval of a proposed action affecting the environment, to determine that adverse environmental impacts have been minimized or avoided as much as possible consistent with the public welfare.  Id. at 1157. This mandates the agency consider the environmental costs and benefits along with economic, social, and other factors.

The court in Rise St. James found that an environmental justice analysis was mandatory under the Louisiana Constitution and Save Ourselves. In conducting its analysis, LDEQ evaluated emission trends over time, as well as the effect of individual permitting decisions, to determine if the burden on residents of St. James Parish had increased over time. Concluding it satisfied the environmental justice analysis, LDEQ noted that (1) the proposed permits would meet regulatory emission requirements, and thus, the residents would not be exposed to air pollution disproportionately; and (2) the relevant emissions in the area had actually decreased over time.

The court found LDEQ’s emissions analysis lacking, citing inconsistencies in its emissions calculations that made it impossible to determine the impact of the cited trends on the community. LDEQ relied on an “inconsistent scope of analysis” depending on the type of emission it was measuring. While some toxins were measured on a parish-wide scale, others were measured within the five-mile area surrounding the proposed FG LA site. Furthermore, LDEQ never weighed the impacts of the FG LA emissions against purported benefits of the project, and the added burden of these additional emissions to the majority minority community. The court found that LDEQ’s analysis was arbitrary and capricious because LDEQ’s cost/benefit analysis gave insufficient weight to environmental costs. Because LDEQ relied on the inaccurate conclusion that the FG LA facility would not have air quality impacts that adversely affect human health and the environment, the court found it did not fulfill its public trust duty.

This ruling aligns with the national trend focusing on environmental justice. Under the Biden administration, the EPA and other federal agencies have renewed focus on environmental justice issues. Just this weekend, the EPA announced the establishment of a new national office aimed at advancing the environmental justice movement.[3] The EPA acknowledges that the research needed for a proper analysis is still incomplete. There exist many challenges related to the stressors at issue (i.e., exposure to pollutants and lack of access to healthcare), such as absence of knowledge of biomarkers to identify exposure to certain stressors.

The question of how environmental justice will influence the permitting process is a matter of speculation. FG LA’s proposed facility is a multi-billion-dollar project, and it cannot move forward without proper permitting. Other businesses must take note; it is becoming increasingly important to make a concerted effort to address disparity in proposed facility areas. What this looks like will vary depending on the facility, but analyzing a proposed facility’s environmental effects must incorporate how those effects will, if at all, unduly burden communities.[4] This requires more than just consideration of the environmental impacts; the community itself must be evaluated (for example, the demographics, land value, and the health of its residents). Ultimately, businesses who wish to move their projects forward may find themselves shouldering the responsibility of providing accurate and substantial information to both state and federal agencies to ensure a robust environmental justice analysis can be completed.

[1] The PSD program applies to the construction of new major stationary sources and to major modifications of existing stationary sources.

[2]  Rise St. James, et. al. v. Louisiana Department of Environmental Quality, Docket No. 694,029, 19th Judicial District Court Parish of East Baton Rouge (Sept. 14, 2022).

[3]  EPA Launches New National Office Dedicated to Advancing Environmental Justice and Civil Rights (Sep. 24, 2022), https://www.epa.gov/newsreleases/epa-launches-new-national-office-dedicated-advancing-environmental-justice-and-civil.

[4]  See Sierra Club v. FERC, 867 F.3d 1357, 1369 (D.C. Cir. 2017) (finding FERC’s Environmental Impact Statement was not deficient in part because it “discussed the intensity, extent, and duration of the pipelines’ environmental effects, and also separately discussed the fact that those effects will disproportionately fall on environmental-justice communities.”)

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