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.
Parks cited EPA’s EJSCREEN website, which cautions users about the tool’s limitations.
Moreover, an LDEQ lawyer argued during the court hearing last year, the department does not have an established procedure for environmental justice analysis and therefore has discretion on whether to use tools like EJSCREEN.
"They do not prove a procedural irregularity where there is no procedure," said LDEQ lawyer Jill Carter, according to a transcript of the hearing obtained by E&E News.
LDEQ declined to comment for this story, due to its pending appeal of White’s decision.
In her ruling from the bench, the judge rebuked the department for lacking standards on environmental justice reviews.
"An environmental justice analysis is more than LDEQ going through the motions of soliciting public comment and then giving lip service to an analysis, or not even having a procedure in place as to how to conduct the review itself," White said.
Even if it is only a screening tool, EJSCREEN can be used as one element of an environmental justice analysis, said Terrell of the Tulane clinic.
"If you go to the doctor and you get screened for breast cancer and they say, ‘Hey, your screening test yielded a huge red flag,’ you don’t just go home and say, ‘Well it’s just a screening,’" she said.
"You follow up on that huge red flag."
A starting point
Data from EJSCREEN has not typically played a pivotal role in legal proceedings — in fact, that is not what the tool was designed to do.
But it can serve as a critical starting point for residents in low-income and minority communities who want to demonstrate to regulators and to the courts that their neighborhoods are being unfairly burdened with industrial activity that could compromise their health and environment.
Chandra Taylor, leader of the Southern Environmental Law Center’s environmental justice initiative, said she frequently uses EJSCREEN during her early interactions with potential clients to gauge what data is available about the health risks to members of their community.
Information in hand, she then visits those communities to interview residents to learn about what access they have to medical care, what contamination they’ve seen in their neighborhoods, and what industrial facilities are near their homes and workplaces.
"Every matter that involves a community of color, I have used a mapping tool," said Taylor, who is based in North Carolina. "And until very recently, the only mapping tool where I’m located was EJSCREEN."
EJSCREEN can be a helpful tool, so long as users recognize its limitations, said Jennifer Richmond-Bryant, an associate professor at North Carolina State University who previously worked at EPA for 11 years.
"The intention of EJSCREEN was to raise questions," she said, "not for policymaking."
Even a strengthened EJSCREEN will suffer from the limitations of the government’s focus on environmental justice in National Environmental Policy Act analyses and state-level permit reviews, said Louie Rivers, another NCSU associate professor who serves on the EPA Board of Scientific Counselors’ Air and Energy Subcommittee.
"My concern is that we still don’t have a standardized way of approaching environmental justice assessments," he said. "Until we do, a tool is only going to be so helpful."
He said he’d like to see how much money the Biden administration plans to devote to environmental justice initiatives. He would also like to see EPA administrator nominee Michael Regan bring on an agency official focused on environmental justice.
"It’s easy to improve a tool," Rivers said. "It’s harder to say, ‘We want you to use this when you do every NEPA review.’"
‘Turns to communities’
EJSCREEN isn’t always a boon for community advocates.
In proceedings related to a Virginia air permit for a compressor station along the now-defunct Atlantic Coast natural gas pipeline, state regulators used EJSCREEN to show that the community surrounding the planned facility had only a 37% to 39% minority population.
But a door-to-door survey conducted in 2018 showed that the Union Hill community, founded by Black Freedmen at the end of the Civil War, had 83% minority and 62% African American residents. Environmental justice experts say that the data that feeds tools like EJSCREEN can often be too high-level to reflect small minority communities that would be disproportionately affected by a new facility.
"For residents and community members and anyone who hopes to have some sort of validation that their situation is real and that it can be addressed, to have a lack of data and regulators saying the data doesn’t match up, it’s just absolutely draining," said Taylor Lilley, an environmental justice attorney at the Chesapeake Bay Foundation.
She said she often arrives in court equipped with the same language from the EJSCREEN website that Formosa and LDEQ have cited. Lilley said it strengthens her argument when regulators claim that an EJSCREEN analysis is sufficient to rule out environmental justice concerns in a community.
A federal appeals court ultimately decided in favor of the Union Hill residents in the Atlantic Coast pipeline case, finding that there were "multiple pieces of conflicting evidence about the minority population" in the community (Greenwire, Jan. 7, 2020).
The pipeline was later canceled due to mounting regulatory and economic issues with the project.
Lilley said she hopes the Biden administration doesn’t lose sight of the needs of vulnerable populations as it proceeds with its plans to build out EJSCREEN and develop new mapping technology.
"I hope that the administration, if they expand environmental justice tools, turns to communities themselves," Lilley said.
What’s next for Formosa?
White’s ruling last year is far from the end of the road for opponents of the Formosa complex in Louisiana.
The judge’s decision could be reversed by a higher court. And even if it isn’t, LDEQ could still move forward with Formosa’s permit after reviewing the updated EJSCREEN data and other information presented by the Tulane team and other critics of the facility.
Parks of FG LA, Formosa’s Louisiana division, said the company is confident that LDEQ’s permit for the facility will withstand the scrutiny.
"The air permits the Louisiana Department of Environmental Quality issued to FG in January 2020 are sound," Parks said.
The Army Corps of Engineers is revisiting a separate Clean Water Act permit allowing dredge-and-fill activity at the Formosa complex following a lawsuit in the U.S. District Court for the District of Columbia. And last fall, Formosa said it would delay construction of the facility due to the COVID-19 pandemic.
Lavigne, the Rise St. James leader, said White’s ruling gave her an extra jolt of energy to continue her fight to ensure the complex is never built.
"We are accomplishing something," she said. "A little old town like St. James is bringing attention to what’s going on."