Formosa Plastics’ Land-Use Approval in St. James is “Already Null and Void”

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In 2019, Formosa Plastics received land-use approval from the St. James Parish Council. During the process of getting that approval, the company lacked transparency, withholding information about the burial sites on the property and giving incorrect information to councilmembers regarding the site plan. 

Although this was exposed to the St. James Parish council by RISE St. James and its attorneys, they did not revoke the land-use approval. 

This was predictable from a council that refuses to listen to the pleas of its residents, burdened with disease and death because their council continues to favor industry over human lives. 

“They sit there and listen and then go to the next item, they don’t even give us any feedback, they don’t do anything.” Sharon Lavigne, the founder and president of RISE St. James, commented. “Formosa Plastics chose St. James because we are poor, because we are black, and because no one would speak up.” 

Now, new information has been uncovered that the council will have to listen to.

“The bad news is that the parish council has not been listening to people and doesn’t seem to be worried about the fact that Formosa Plastics will emit huge amounts of ethylene oxide onto the population and parish.” commented Anne Rolfes, Director of the Louisiana Bucket Brigade, “The good news is that the land-use approval is already null and void.” 

On October 19, 2018, when Formosa’s land-use application was still pending, the company submitted a supplementary application to the parish that said it would take numerous measures to enhance the facility’s safety and environmental protection. This included revising its plot plan to relocate units so that they were farther away from an elementary school and church in St. James Parish. 

Pam Spees, a senior staff attorney at the Center for Constitutional Rights, explained “Formosa basically told the parish council members that they had taken health and safety concerns into account and had reconfigured its site plan accordingly.” 

However, through research, Earthjustice found that Formosa had not changed its site plan at all. When faced with this information, Formosa conceded that it had never changed its site plan, “but instead they pointed to something that happened much, much earlier before they ever submitted their application…that reconfiguration actually made the situation much worse by placing the parts of the facility that would be emitting ethylene oxide closer to an elementary school and a church.” 

Corinne Van Dalen, an Earthjustice staff attorney, commented, “Why is this such a big deal? It’s such a big deal because ethylene oxide is a potent carcinogen. It is 400 times more potent than benzene…While the rest of the country is figuring out how to deal with ethylene oxide and there aren’t that many places in the country that have these sources that emit it…Meanwhile, the state of Louisiana is allowing what would be possibly the biggest new source or biggest source in the country of ethylene oxide to be built one mile from an elementary school.”

There has been a growing body of evidence that chronic exposure to ethylene oxide emissions can cause cancer, reproductive effects, mutagenic changes, neurotoxicity, and sensitization. 

Rolfes commented, that in the last couple of years, while Formosa Plastics was planning for their plant that would emit significant amounts of ethylene oxide, “there was emerging science on how very dangerous it was.”

The St. James Parish council is aware of this science. It’s clear they know what they are doing to their residents. They don’t care though because they’re black. 

Van Dalen elaborated, “The parish actually went to bat for a community, and it was the white community. It was around Paulina, where before there was even a land-use plan in place, the parish saw that DEQ was proposing to permit a new minor source, so tiny compared to Formosa, a new source of benzene and other VOCs. It would have been an oil facility, right in Paulina and they went to bat, they passed the resolution objecting to this…So, why is the parish not doing anything when it rushed to the aid of Paulina, for this tiny source compared to this. And it’s not even taking our letter seriously or giving any kind of response in an area that is majority African American. So that’s something the parish needs to think about, and everyone needs to know that here’s an example of systematic racism, right here it’s unfolding before our eyes.” 

While it approved the land-use, the council did stand up for St. James residents with the stipulation that Formosa Plastics revise its site plan. In fact, their land-use approval was contingent on Formosa revising the site plan. 

And Formosa didn’t do it. 

“What this means, legally, is that this was basically a misrepresentation, and the council, it is clear from the resolution that it issued where it basically granted Formosa’s land-use application relied on those representations,” said Spees. 

Because Formosa Plastics was dishonest in their application for land use, misrepresenting plans that their land use application relied on, the approval they received is an absolute nullity. 

According to Spees, “The parish council, which has to take into account the concern and its obligations to protect the health and safety of people within the parish, this goes to a matter of public interest and public concern, and when that agreement is null it’s called an absolute nullity and the effect of that is that it basically means, and the law states this very clearly, that this resolution is deemed as never having existed.” 

The St James Parish Council is obligated to protect the health and safety of its people and in particular its parish. Allowing Formosa Plastics to proceed with its land-use would defy this obligation. 

Spees commented, “This agreement is already null and void, it can have no legal effect, what we’re calling upon the parish council to do is to take this seriously, acknowledge that and tell Formosa it has to go back to square one…If they don’t, the other legal effect of something being an absolute nullity is that, because it is a matter affecting the public more broadly, anyone can make this claim, and it doesn’t prescribe because it’s something to be taken so seriously. This is not something where the council can look the other way it goes right to the heart of the resolution and its responsibility under the Louisiana constitution, and its own home rule charter to protect the public in situations like this.”

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