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Judge tosses lawsuit over permit for $9.4 billion Formosa plastic complex; here’s what’s next

A federal judge in Washington, D.C., has thrown out a lawsuit challenging the wetlands permit for the $9.4 billion Formosa Plastics complex proposed in St. James Parish.

Meanwhile, the U.S. Army Corps of Engineers continues to reevaluate its now-suspended authorization to fill in lowlands on the chemical manufacturer’s Mississippi River site. A Formosa affiliate behind the project remains barred from starting significant construction activities while the permit remains under review, though work on a water line and road widening on La. 3127 can continue.

Still, the new ruling means opponents of the project would have to start over with a new lawsuit should the Corps of Engineers issue a new permit.

The Formosa project, if completed, would be one of largest plastics facilities in the world. It has received backing from Gov. John Bel Edwards and a number of local officials. It promises to bring in millions in new tax revenue, 1,200 permanent jobs and thousands more temporary construction jobs.

But the project has prompted a determined fight from local and national community and environmental groups over the potential pollution impact on minority communities, the lucrative tax breaks for facility and its proximity to historic, potentially pre-Civil War graves of enslaved Black people.

In court and before the permitting agencies themselves, the opponents have attacked key government approvals needed to clear the way for Formosa’s major investment in the nearly 2,500-acre site by the community of Welcome. 

In the Corps of Engineers’ case, four plaintiffs — the Center for Biological Diversity, Louisiana Bucket Brigade, Rise St. James and Healthy Gulf — sued last year. They accused the agency of failing to do a deep enough analysis of the potential pollution impacts on poor and minority communities

The groups had fought to keep the litigation pending once the agency announced in early November it was reworking its permit. But the Corps and FG LA LLC, the Formosa affiliate that is building the plastics plant, argued that whatever the Corps would come up with would amount to a “new final agency action” that could make the existing suit moot.

The dispute had lingered before U.S. District Judge Randolph D. Moss through the holiday break, but the judge sided with the Corps and Formosa on Friday.

“Although a close question, the Court agrees with the Corps and FG that dismissal is the most prudent course,” Moss wrote in a five-page order.

FG LA officials said they were pleased with the ruling and were providing the Corps of Engineers additional information for its reanalysis.

“FG continues to cooperate with the Corps throughout this process and sincerely hopes the permit re-evaluation will be handled in a thorough and expeditious manner so the permit analysis will be even stronger once the re-evaluation is complete,” the officials said in a statement.

Julie Teel Simmonds, an attorney for the plaintiffs, asserted that their lawsuit forced the Corps to suspend the permit for the “super-polluting Louisiana complex” and promised to sue again if the Corps authorized a complex of the same scale in St. James Parish, with the attendant impacts on air, water and environmental justice.

“Our campaign against this project is far from over,” said Simmonds, senior attorney with the Center for Biological Diversity.

Ricky Boyett, a Corps spokesman in New Orleans, declined to comment Tuesday on pending litigation or the progress of the agency’s review, referring inquiries to the U.S. Justice Department.

Before the Corps’ permit suspension, the now-tossed suit was closing in on a likely determinative hearing on the main arguments, possibly early this year. 

But the Corps of Engineers told the court Nov. 4 that it had suspended the permit, one day ahead of its deadline to respond to the plaintiffs’ major pleadings laying out the thrust of their arguments.

In subsequent reports to the court and FG, the Corps of Engineers said it had found an error in its analysis of possible plant sites other than the ultimate location in St. James Parish.

Five possible sites in Ascension Parish were excluded due to an erroneous assumption about air quality limits in that parish. The Corps said it had to review the alternatives analysis required under the U.S. Clean Water Act “and other aspects of the permit decision if appropriate.” 

Read the article in The Advocate