(By Pamela King for E&E News) No one had expected the judge to rule so quickly, let alone with such a striking condemnation of the Louisiana government’s failure to recognize racial discrimination in its own inner workings.
The virtual proceedings began without fanfare: A lawyer representing a resident of Welcome, La., argued that the latest data from an EPA mapping tool should have prompted state regulators to take a deeper look at an approval for a massive petrochemical complex slated to be built in the predominantly Black community. Attorneys for the Louisiana Department of Environmental Quality and the project’s developers rebutted the claims.
Then Judge Trudy White began to speak.
“Inherent, in the court’s opinion, in a robust environmental analysis is the recognition that environmental racism exists and that environmental racism operates through the state’s institutions,” the judge for Louisiana’s 19th Judicial District Court said in her ruling from the bench late last year.
She added: “Even though an institution may operate within the legal parameters, the institution may not be righteous or just in its actions.”
Central to the case was data extracted from EJSCREEN, an EPA mapping tool that lawyers for opponents of the Formosa Plastics Group complex used to demonstrate that residents of Welcome, located in Louisiana’s St. James Parish, face an elevated risk of cancer due to industrial activity in their community.
EJSCREEN has drawn the attention of the Biden administration, which has promised to bolster the EPA tool and has instructed the White House Council on Environmental Quality to build out similar technology.
The move could help environmental lawyers and community activists build stronger cases against oil and gas infrastructure, power plants, and other industrial facilities in minority and low-income neighborhoods.
Biden’s EJSCREEN plans
The Biden administration has offered few details about how it plans to bolster EJSCREEN, but it has laid out broad goals for improving the tool and for building similar systems elsewhere in the federal government.
In a Jan. 27 executive order, President Biden gave CEQ six months to create a Climate and Economic Justice Screening Tool that would be used for annual publications of interactive maps of vulnerable communities.
Development of the geospatial tool would build “off EPA’s EJSCREEN, to identify disadvantaged communities … and inform equitable decision making across the federal government,” according to a fact sheet accompanying Biden’s order.
Julius Redd, a Beveridge & Diamond PC principal who helps companies engage with environmental justice concerns, said he was intrigued by the Biden administration’s plans to release annual maps from the CEQ geospatial tool.
Regulated entities aren’t always sure what constitutes an environmental justice community, due to varying definitions across jurisdictions, he said. Federal maps could offer some clarity.
Public maps identifying disadvantaged communities would be helpful for businesses organizing their own work and for knowing, “from an enforcement and policy-setting perspective, what the federal government will prioritize,” Redd said.
CEQ has not yet announced any steps toward fulfilling Biden’s directive, but just days into the new administration, EPA announced a series of updates to EJSCREEN, including the first addition of flood and sea-level rise data to the tool.
The update is an asset for the Tulane University Environmental Law Clinic, which represented the resident who challenged the LDEQ permit in White’s court. The Tulane team is focused on facilities affected by Louisiana’s severe storms and receding coastline, said Kimberly Terrell, director of community engagement at the clinic.
“You’re talking about all these risks and impacts at these facilities,” she said, “and we haven’t even touched on what happens when a hurricane comes barreling down.”
Frequent users of EJSCREEN broadly agree that the tool could benefit from additional data and more frequent updates.
Terrell noted that the Tulane team notched its legal victory against Formosa last year by relying on information from 2014.
“What’s really concerning is that there’s been a lot of plants permitted since 2014,” she said. “Someday we’ll know what the 2020 and 2021 levels of pollution-related cancer risks are, but we won’t know that until probably another six or seven or eight years.”
For Sharon Lavigne, the leader of the faith-based advocacy group Rise St. James, White’s bench ruling requiring LDEQ to take a second look at its air permit for the Formosa plant was an affirmation of her nearly three-year campaign to stop the company from building its 2,400-acre facility near her home, which is located along a heavily industrialized 85-mile stretch of the Mississippi River colloquially known as “Cancer Alley” (Greenwire, Nov. 20, 2020).
The complex is designed to produce the key ingredients for products like artificial turf, N95 masks and playground equipment. It is called the Sunshine Project, after the cantilever bridge that connects the western and eastern halves of St. James Parish.
Community members don’t care for the name or the project.
“We already have so much pollution in the area, so why would they choose this site to put more on us?” said Lavigne. Despite the advice of the lawyers, who told Lavigne to refrain from showing emotion on the Zoom call hearing, she jumped out of her chair when she heard White give her decision.
“I felt like she was speaking from the heart and that she really cared,” Lavigne said.
Lawyers from the Tulane clinic, which represented a friend of Lavigne’s in the case, had argued that LDEQ had not built a sufficient record in litigation over LDEQ’s permit for the Formosa complex.
Tulane argued that the department should have considered the EJSCREEN data.
While LDEQ had run an EJSCREEN analysis, it did so before the tool had been updated with information from the 2014 National Air Toxics Assessment, the latest version currently available. The prior iteration of NATA, released in 2011, showed that Welcome faced no higher cancer risk than the rest of the state.
The 2014 data — which the Tulane team told the court was available before LDEQ issued its permit — showed that Welcome is in the 86th percentile for cancer risk in Louisiana. That’s without the Formosa facility in the community, which is a change that LDEQ should have analyzed, said Lisa Jordan, executive director of the Tulane clinic.
“This is just what it’s like — I want to say what it’s like now, but we still don’t know what it’s like now, just 2014,” she said. “But that was all before Formosa comes in. DEQ never took it that next step.”
LDEQ and Formosa have questioned whether a court can require state regulators to consider EJSCREEN data.
“EJSCREEN is rightly not used in this context because the U.S. Environmental Protection Agency cautions the tool should not be used ‘as a means to identify or label an area as an EJ community; to quantify specific risk values for a selected area; to measure cumulative impacts of multiple environmental factors,’ or ‘as a basis for agency decision-making or making a determination regarding the existence or absence of EJ concerns,'” Janile Parks, director of community and government relations for FG LA LLC, Formosa’s Louisiana division, wrote in an emailed statement. Read the full story here.