Plastic Pollution Traced Back to Formosa’s Failure to Comply
San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corp., No. 6:17-CV-0047, 2019 U.S. Dist. LEXIS 108082, 2019 WL 2716544 (S.D. Tex. June 27, 2019).
By: Spring Gaines
This case displayed a considerable amount of discomfort for the residents who live adjacent to waterways near Point Comfort, Texas. Formosa, a Taiwanese parent company, owns a production plant that discharged plastic pellets and powder into Cox Creek, Lavaca Bay, and other nearby waterways. This was in violation of its Texas Pollutant Discharge Elimination System (TPDES) Permit [hereinafter “Permit”] concerning the discharge of floating solids. San Antonio Bay Estuarine Waterkeeper (Waterkeeper) sued under a citizen’s suit as allowed through the Clean Water Act (CWA). Waterkeeper claimed that the discharge “damaged the aesthetic, recreational and economic value” of the Bay and Creek and contributed to declines in the shrimp population.[1] Accordingly, Waterkeeper sought monetary damages, attorney’s fees and injunctive relief. Formosa challenged claiming mootness and Waterkeeper’s lack of standing.
For Formosa’s first challenge, thecompany resolved that the Agreed Order it previously signed renderedWaterkeeper’s claim moot. This Order came about upon discovery that Formosa wasa serial offender, which violated its Permit concerning discharge of floatingsolids from 2016-2019. According to the CWA, it is unlawfulto produce “discharge of floating solids or visible foam in other than traceamounts”.[2]Here, the term trace means "a very small amount; a barely discerniblequantity of a constituent, especially when not quantitatively determined,because of minuteness.”[3]Waterkeeper producedundisputed evidence that the actual discharge of plastic pellets was inenormous quantities. Formosa also failed to report its discharge violations tostate or federal authorities, which is mandated under the CWA. As aresult, the Texas Commission on Environmental Quality (TCEQ) signed the AgreedOrder adjudicating six violations and a penalty of $121,875 against Formosa.The Court disagreed that the Order made Waterkeeper’s claim moot and determinedthat the continued violations only showed TCEQ’s inability to make Formosacomply.
Formosa’ssecond challenge entailed that Waterkeeper, along with former shrimper DianeWilson, lacked standing to bring suit. An individual has standing to sue when they have (1) suffered an injuryin fact, (2) the injury is fairly traceable to the defendant, and (3) it islikely the injury can be redressed.[4]For cases on plastic pollution, a plaintiff's injuries are "fairlytraceable" to a defendant's discharge where the "defendant has (1)discharged some pollutant in concentrations greater than allowed by its permit(2) into a waterway in which the plaintiffs have an interest that is or may beadversely affected by the pollutant and that (3) the pollutant causes orcontributes to the kinds of injuries alleged by plaintiffs."[5]
The evidencedisplayed that indeed, the plastic pellets and powder discharged by Formosawere in greater amounts than allowed by the Permit. The discharged pollutedlocal waterways and adversely affected members of Waterkeeper’s ability toenjoy the creeks and bays. Additionally, Wilson testified that she and otherssuffered injury in fact because the plastic pollution harmed the local shrimppopulation, and this negatively impacted the livelihood of shrimpers in the area.Waterkeeper and Wilson also suffered injury in fact with Formosa’s refusal toreport violations, in which federal and state law require that permitviolations must be made publicly available.[6]
After discussion and analysis ofFormosa’s conduct, the court affirmed Waterkeeper’s claim for declaratoryjudgment and issued monetary and injunction relief against Formosa with a focuson future Permit violations. The Court also agreed to award attorney's fees andsanctions for past violations.[7]
Author’sNote: For those of us in Louisiana, this decision holds significant importancebecause Formosa has received a permit from the state to construct a $9.4billion-dollar plant in St. James. Different organizations have already begunto fight this decision. On July 23, 2019, a coalition of 270 community andconservation organizations filed a legal petition to demand that the EPA adoptstricter water-pollution limits for industrial plants like Formosa that createplastic. A press release can be found here: https://biologicaldiversity.org/w/news/press-releases/ban-plastic-pollution-from-petrochemical-plants-2019-07-23/.
[1] San Antonio BayEstuarine Waterkeeper v. Formosa Plastics Corp., U.S. Dist. LEXIS 108082, at *28.
[2] Id.at *6.
[3] SeeWebster's New International Dictionary, 2nd Ed. (unabridged)(1957).
[4] Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-561 (1992).
[5] Sierra Club, Lone StarChapter v. Cedar Point Oil, 73 F.3d 546, 557 (5thCir. 1996).
[6] See 33 USC. §1318(b) (2018); Tex. Water Code §26.0151.
[7] San Antonio Bay EstuarineWaterkeeper v. Formosa Plastics Corp., U.S. Dist. LEXIS 108082, at *31.
