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 decision ultimately turned on the court’s interpretation of the facility’s modeling of its forecasted emissions, LDEQ came under fire for multiple reasons, the most prominent of which was the agency’s handling of environmental justice matters in the permitting of the proposed facility. The court indicated that environmental justice applied to the permitting decision through 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) (widely referred to as “the IT Case” because it related to a facility proposed by IT Corporation), 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, disagreeing with the agency’s analysis of the impact of the cited trends on the community. Furthermore, the court found that 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 held that LDEQ’s analysis was arbitrary and capricious because LDEQ’s cost/benefit analysis gave insufficient weight to environmental costs. As such, the court found LDEQ did not fulfill its public trust duty.
Environmental justice is an increasingly important factor in environmental permitting decisions and the court’s ruling aligns with the increasing emphasis on environmental justice issues nationwide. 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 consolidating three existing agency environmental justice and civil rights programs.[3] Under this administration, environmental justice will likely continue to be a critical component of the permitting process for large-scale industrial facilities.
[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.
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