Letter to St. James Parish: Formosa Approval Null and Void
(St. James, LA)
Read the full letter with footnotes, citations, and sources here.
May 12, 2021
St. James Parish Council
5800 Hwy. 44
Convent, LA 70723
By email to: email@example.com
Re: Resolution 19-07 Granting Formosa’s Land Use Application
To the St. James Parish Council:
We write to you on behalf of RISE St. James and Louisiana Bucket Brigade regarding their request that the Council rescind the approval of Formosa Plastics’ land use application set out in Resolution 19-07. We take this opportunity to highlight three important points:
- The company has acknowledged that it did not reconfigure its site plan to relocate some of its production units farther away from the elementary school and church after consultation with the Parish. In fact, the only change Formosa Plastics has pointed to, which pre-dated its application to the Parish, actually worsened the threat to school children and churchgoers by placing a plant with the most potent carcinogenic emissions – Ethylene Oxide – closer to the school and church.
- As a result of Formosa’s misrepresentation, the land use approval is a legal nullity under Louisiana law and must be deemed as never having existed.
- Since our last correspondence, the concerns about Ethylene Oxide have grown, as has the understanding of the ways in which air pollution has rendered some communities more vulnerable to COVID-19, which has had a disproportionate impact on Black communities and other communities of color.
The Council’s land use approval was based on Formosa Plastics’ misrepresentation – one that goes to the very heart of the Council’s duty to protect the health, safety, and welfare of its residents – rendering the land use approval a nullity and therefore legally nonexistent.
I. Formosa did not reconfigure its site plan to lessen danger to the school and church as it stated that it had.
Formosa Plastics conceded that it had not reconfigured its site plan to relocate some of its production units further away from the nearby church and St. Louis Academy (formerly Fifth Ward Elementary School), where the young student population is nearly entirely Black. Formosa Plastics’ concession contradicts what the company told the Council in October 2018, when it claimed that it had changed the site plan in response to the Parish’s concerns. The only site change Formosa Plastics points to pre-dated its land use application and that change actually increases the threat to the school and church by moving an Ethylene Oxide-emitting production unit closer to the community.
Following is a summary of the factual events leading up to the present on this issue:
▪ Formosa Plastics submitted its initial land use application to the Parish on June 25, 2018. This 430-page application only included the final site plan (not the older, October 30, 2017, site plan discussed in Formosa Plastics’ January 21, 2020, letter that it sent to the Council in response to RISE and Louisiana Bucket Brigade’s concerns as detailed below).
▪ Formosa Plastics presented its land use application at the Parish Planning Commission’s July 27, 2018 meeting.
▪ The Planning Commission held public hearings on Formosa Plastics’ land use application on September 5, 2018 and September 19, 2018.
▪ On October 19, 2018, Formosa Plastics supplemented its land use application to the Parish, stating that “after consultation and discussion with the Parish” it “revised its plot plan” and “relocated some of its units along the western boundary, farther way from the new church and school.” In its supplemental application, Formosa Plastics pointed to its revised plot plan and relocation of production units as a measure it had taken to “enhance the Facility’s safety and environmental protection.”
▪ On January 24, 2019, the Council passed Resolution 19-07, approving Formosa Plastics’ land use application based on its finding that “[t]he physical and environmental impacts of the proposal are within allowable limits, and are substantially mitigated by the physical layout of the facility, and the location of the site in proximity to existing industrial uses and away from residential uses.” The Council also determined that the “placement of the production and process components on the site, and the proposed 300 foot civil buffer within the footprint of the site provide adequate buffer zones.”
▪ On December 23, 2019, RISE St. James and Louisiana Bucket Brigade sent a letter to the Council urging that it rescind Resolution 19-07 because Formosa Plastics had not revised its site plan to move hazardous production units away from the church and school to satisfy the Parish’s concerns as the company claimed it had done. The letter highlights the risks associated with Formosa Plastics’ toxic air emission, including discussion of a study showing that the area around the company’s site is already “more toxic with cancer-causing chemicals than 99.6% of industrialized areas in the country,” and that the level of permitted emissions from the complex would expose area residents to “more than triple” the toxic levels of cancer-causing chemicals. The letter draws attention to the fact that the site plan does nothing to mitigate environmental impacts, but instead places the production units with the largest and most harmful amounts of cancer-causing toxic emissions closest to the elementary school, church, and residential areas. The letter also details that the Ethylene Oxide emissions from the Ethylene Glycol plants expose residents to an unacceptable risk of cancer.
▪ On January 21, 2020, RISE St. James and Louisiana Bucket Brigade supplemented their December 23, 2019, letter with information about the vast reach of Formosa Plastics’ harmful toxic emissions, showing increased risk of cancer from the plant’s Ethylene Oxide emissions as far as Paulina. On the same day, legal counsel for RISE St. James and Louisiana Bucket Brigade gave presentations to the Council on behalf of RISE St. James and Louisiana Bucket Brigade on the information provided in the organizations’ letters.
▪ Also on January 21, 2020, Formosa Plastics responded to RISE St. James and Louisiana Bucket Brigade’s letters where the company conceded that it never changed its site plan to respond to the Parish’s concerns. Instead, Formosa Plastics points to an alteration to the site plan that it had made months before it submitted the land use application to the Council, which actually increases the harm to the school and church by placing an Ethylene Oxide-emitting production unit closer to the community.
▪ On September 15, 2020, after obtaining a copy of Formosa Plastics’ January 21, 2020 letter through a public records request, RISE St. James and Louisiana Bucket Brigade wrote to the Council again, pointing out the obvious fact that Formosa Plastics admitted in its letter that it had not changed its site plan in response to the Parish’s concerns. Indeed, the site alteration that Formosa Plastics disingenuously claimed as responsive to the Parish’s concerns, actually took place long before the company ever submitted its application to the Parish – and that pre-Parish application site change put what would be one of the largest sources of Ethylene Oxide in the nation even closer to the school, church, and residences. RISE St. James and Louisiana Bucket Brigade also provided more information about Formosa Plastics’ harmful Ethylene Oxide emissions, detailing with support that the potent toxic pollutant is linked to breast cancer, non-Hodgkin lymphoma, and lymphocytic leukemia – and has been found by the U.S. Environmental Protection Agency to be far more carcinogenic than previously understood. The organizations further discussed the national effort to reduce or eliminate Ethylene Oxide emissions from sources that emit the cancer-causing chemical, pointing to an Illinois law that prohibits the construction of new Ethylene Oxide sterilization facilities within 15 miles from a school to contrast Formosa Plastics’ siting of its enormous Ethylene Oxide-emitting facilities only a mile from the St. Louis Academy.
▪ On September 16, 2020, legal counsel for RISE St. James and Louisiana Bucket Brigade gave another presentation to the Council that detailed the points of the organizations’ September 15, 2020 letter (i.e., the obvious admission by Formosa Plastics that it had done nothing to address the Parish’s concerns). After the presentation, the Council stated that RISE St. James and Louisiana Bucket Brigade raised issued that “should be looked into,” that their “[September 15, 2020] letter and attached materials contain a lot of information and technical points that we need to understand with the help of the administration and our advisors.” The Council has never responded.
II. Resolution 19-07 approving Formosa Plastics’ land use application is a legal nullity and should be deemed as never having existed.
Louisiana law provides that “[p]ersons may not by their juridical acts derogate from laws enacted for the protection of the public interest” and that “[a]ny act in derogation of such laws is an absolute nullity.” La. Civ. Code art. 7. An act that is absolutely null is deemed “never to have existed.” La. Civ. Code 2033. A claim that an act or obligation is an absolute nullity never prescribes and may be brought by anyone. La. Civ. Code arts. 2030, 2032.
Resolution 19-07 also constitutes a type of obligation under Louisiana law, which is subject to the rules relating to nullity of contracts. La. Civ. Code art. 1917. As an obligation, the resolution is also absolutely null because the requirements for its formation have not been met. La. Civ. Code art. 2029. One of those requirements is mutual consent, which is vitiated by error or fraud. La. Civ. Code art. 1948. An error vitiates consent “when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.” La. Civ. Code Ann. Art. 1949. Error induced by fraud “need not concern the cause of the obligation in order for it to vitiate consent, but it must concern a circumstance that has substantially influenced that consent.” La. Civ. Code Ann. art. 1955. A contract or obligation may be rescinded once a failure of cause is shown. See Angelo & Son, LLC v. Piazza, 2008-370, p. 5 (La. App. 3 Cir. 12/10/08); 1 So.3d 705, 710, writ denied, 2009-0018 (La. 2/20/09); 1 So.3d 501.
An obligation is an absolute nullity where it “derogate[s] from laws enacted for the protection of the public interest, violate[s] a rule of public order, or produce[s] a result prohibited by law or public policy.” Davis v. Parker, 58 F.3d 183, 189 (5th Cir. 1995) citing Daigle v. Clemco Indus., 613 So.2d 619, 624 (La.1993). See also La. Civ. Code art. 2030. Sources of the state’s public policy are its Constitution, laws, and judicial decisions of court of last resort. W.L. Slayton & Co. v. Newton & Morgan, 299 F. 279, 280 (5th Cir. 1924).
The Parish’s Home Rule Charter requires the Parish Council to “protect  and preserve the general welfare, safety, health, peace, and good order of St. James Parish.” The Louisiana Constitution of 1974 requires that the “natural resources of the state, including air and water, and the healthful, scenic, historic and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people.” Pursuant to Section 86-37(h)(3) of the St. James Parish Code of Ordinances, the Planning Commission must consider “the physical and environmental impacts of the proposed use [of land] on the air, water, and land, with particular attention to whether the public benefits of the proposed use are commensurate with those impacts, and whether the environmental impacts may impair the ability of the parish to attract other beneficial development.”
With all of those requirements on the Council to protect the public interest, in particular the health and safety of St. James residents, this Council adopted Resolution 19-07 after Formosa Plastics represented that it had taken steps “to enhance the health and safety of the community” by “revis[ing] its plot plan” “[a]fter consultation and discussion with the Parish” and had “relocated some of its units along the western boundary, farther away from the new church and school.” After obtaining this assurance, the Council approved Formosa Plastics’ land use application, denying RISE St. James’ appeal of the Planning Commission’s decision. The Council explicitly did so with the understanding that “[t]he physical and environmental impacts of the proposal are within allowable limits, and are substantially mitigated by the physical layout of the facility, and the location of the site in proximity to existing industrial uses and away from residential uses.” The Council also understood that the “placement of the production and process components on the site, and the proposed 300 foot civil buffer within the footprint of the site provide adequate buffer zones.”
This was not true. Formosa Plastics did not revise its site plan as it assured the Council it had done. The only changes Formosa Plastics points to occurred well before its application and they actually increased the threat to the health and safety of children and staff at the elementary school and church. Long before its application to the Council, Formosa Plastics had moved the production unit with the most carcinogenic emissions – Ethylene Oxide – closer to the school and church; and Formosa Plastics never reconfigured the site plan after its application as it assured the Council it had done.
The Council relied on Formosa Plastics’ assurance to enact a juridical act, the land use approval, that the Council believed would discharge its legal duty to protect the health and safety of nearby residents. Inasmuch as the resolution gave rise to an obligation under Louisiana law, the Council also relied on Formosa Plastics’ assurance as a factual cause for the land use approval. We now know that Formosa Plastics’ assurance was false.
As a juridical act, Resolution 19-07 derogates from laws governing the Council and its obligations to protect the public interest, resulting in an absolute nullity, pursuant to La. Civ. Code art. 7, because it was based on the false premise that Formosa Plastics had taken steps to ensure that school children and church-goers would be protected. As a type of obligation under Louisiana law, the resolution is infected with an error that vitiated the Council’s consent. That error results in a “derogat[ion] from laws enacted for the protection of the public interest” and “produce[s] a result prohibited by law or public policy.”
As a result of Formosa Plastics’ misrepresentation, the resolution is absolutely null and does not now exist. The only conscionable step at this point is for the Council to make this clear and formally acknowledge for the record that the land use approval is null and void.
III. Concerns about health and safety of residents in St. James have worsened with new reporting about the effects of ethylene oxide and exacerbating effects of air pollution and COVID-19.
The effort to address the Ethylene Oxide crisis has only become more urgent since RISE St. James and Louisiana Bucket Brigade’s last correspondence with the Council. The U.S. Environmental Protection Agency is currently in the process of reaching out to communities that are impacted by the potent carcinogen to warn them of their risks. Just last week, EPA set up a call with community leaders and other representatives from Louisiana and Texas who are concerned about Ethylene Oxide impacts as the first step in this outreach effort. Most of the country is spared this worry, but a handful of states have Ethylene Oxide-emitting facilities – Louisiana and Texas among them. And now Formosa Plastics is planning to construct two massive Ethylene Glycol production units, both of which will be major sources of Ethylene Oxide emissions, at a time when this carcinogenic toxic pollutant is being reduced, phased out, or eliminated elsewhere. The Council should be leading this effort to address Ethylene Oxide, not welcome it into the Parish and remain silent in the face of this danger to the people of St. James Parish. Indeed, why is St. James Parish allowing Formosa Plastics to construct these new sources of Ethylene Oxide that exceed cancer risk standards? This is a question for the Council to take seriously especially when it based its decision to allow Formosa Plastics to come into the Parish and construct its massive facility on the company’s misrepresentations.
This video, “Tracking An Invisible Killer,” follows eight women who grew up in the shadow of an Ethylene Oxide-emitting facility in Texas. RISE St. James and Louisiana Bucket Brigade urge the Council to view this video, which provides a glimpse of the reality the Council has created for its residents by allowing Formosa Plastics to build. But unlike the mostly White suburb impacted by the Texas facility, toxic air pollutants have even greater harmful impacts in Black communities, like those in District 5 and District 4 which will get the brunt of Formosa Plastics’ harmful emissions. This makes the situation here even more dire – especially where residents closest to the Formosa Plastics’ site already face far greater risk of cancer from toxic air pollutants than do other residents of the state on average. Furthermore, toxic air pollutants are associated with increased COVID-19 mortality. In fact, a study published in September 2020 found that the respiratory hazard index is associated with a 9% increase in COVID-19 mortality. Black Louisianans have died from COVID-19 by an extraordinary, heavily disproportionate margin. Black communities along the petrochemical corridor along the Mississippi River between Baton Rouge and New Orleans – which face some of the highest cancer risks from toxic pollution – are dying at higher rates than the rest of the state.
Black residents of St. James Parish deserve the same protection the Council has afforded its White residents. Indeed, when Wolverine Terminals submitted an application to Louisiana Department of Environmental Quality (“LDEQ”) for a “minor source” air permit to build an oil terminal in the Paulina-Grand Point area, which is located in predominantly White District 3, the Council rushed to the community’s aid. That is, the Council passed a resolution stating that “the proposed construction of Wolverine Terminal conflicts with the future planned development of residential neighborhoods [in the Paulina-Grand Point area], causes health concerns to existing residents within close proximity of the proposed facility, and increases the congestion and on-going traffic problems.” Indeed, the Parish left no stone unturned, questioning LDEQ about Wolverine’s Benzene emissions – even arguing there is no “vendor guarantee” and therefore “no assurance that the [vapor combustion unit] will destroy 99 percent of the [emissions].” Meanwhile, the Council may recall that RISE St. James and Louisiana Bucket Brigade brought to the Council’s attention the fact that LDEQ greenlighted Formosa Plastics’ ethylene oxide sources based on the company’s unsupported claim (i.e., no vendor guarantee) that it can somehow combust and destroy 99.9 percent of its ethylene oxide emissions. The Council never looked into this important issue even though Ethylene Oxide is nearly 400 time more carcinogenic as Benzene. The Parish rejected the Wolverine project; it was never built. But here, the Council has abdicated its role to protect the health of its Black residents by blindly deferring to LDEQ and relying on Formosa Plastics’ misrepresentation about measures taken to protect area residents. The Council has not even mentioned impacts to the area immediately next to Formosa Plastics’ site that the Parish designated as “Residential Growth” in its master land use plan. Indeed, the potential impacts of a “minor source” oil terminal in predominantly White District 3 prompted immediate action and deep scrutiny, whereas here the Council has allowed Formosa Plastics’ massive facility to sail through unchecked. District 5 and 4 residents, who would be most affected by Formosa Plastics’ massive complex, ask the Council to extend the same diligence and care to them as applied elsewhere in the Parish.
We also reiterate the concern raised previously that Formosa Plastics did not notify the Parish Council of the existence of the Buena Vista Plantation Cemetery while its land use application was pending before the Planning Commission. While the company was not under a legal obligation to provide notice to the Parish Council of the existence of the burial grounds, its failure to do so demonstrates a disregard for the cultural and historical significance of such sites to communities in St. James and elsewhere, in particular the likely descendants of those buried there, and for the Council’s authority over land use.
Formosa Plastics’ plant is far from a done deal. The U.S. Army Corps of Engineers has suspended the wetlands permit it issued needed for construction of the massive chemical complex and the validity of the air permits (also needed to begin construction) is pending before the 19th Judicial District Court. And the company itself has not made a final investment decision to go through with its plans. Furthermore, the outcry against the facility could not be louder from people who will have to suffer in Formosa Plastics shadows to objections from the New Orleans and Westwego city councils, and beyond to the United Nations. The Council must step up and prevent this atrocity in the making and protect its people.
Corinne Van Dalen
900 Camp Street, Unit 303
New Orleans, LA 70130
Counsel for RISE St. James
and Louisiana Bucket Brigade
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, NY 10012
Counsel for RISE St. James