Federal Judge Rules Formosa Plastics Violated State, Federal Environmental Law
VICTORIA, Texas (July 3, 2019) -- A federal judge last week delivered a major win to TRLA client Diane Wilson and her co-plaintiffs, who sued Formosa Plastics Corp. for polluting Lavaca Bay and nearby waterways with billions of plastic pellets. Describing Formosa as a “serial offender,” U.S. District Judge Kenneth M. Hoyt ruled that Formosa violated its Texas environmental permit and the federal Clean Water Act by illegally discharging plastic pellets and powders into Lavaca Bay and Cox Creek.
“It's wonderful to see justice being done,” said Wilson, who is represented by TRLA consulting attorney Amy Johnson and TRLA attorneys Erin Gaines and Jennifer Richards. “We have fought for so long to protect the beauty and health of our natural environment,” Wilson said. “We’re one step closer to making it happen. Not only is this a win, it's a big win.” (The Texas Tribune, as well as several other media, interviewed Wilson for a story on the opinion.)
“This is a victory for the environment and for citizens using the Clean Water Act to protect their rivers, streams, and bays,” Johnson said. “The judge found our evidence to be very convincing.”
The trial, which opened in late March, now moves into the remedy and penalty phase. Formosa faces fines of as much as $162 million, which reflects the maximum penalty under the Clean Water Act.
In 2017, Wilson and her co-plaintiffs – members of the San Antonio Bay Estuarine Waterkeeper, who are represented by private attorneys David Bright of Corpus Christi and David Frederick of Austin – filed suit against Formosa Plastics Corp., Texas, and Formosa Plastics Corp., USA. The plaintiffs had collected evidence of the plastic pellets and powder that the company’s Point Comfort facility discharges into Lavaca Bay and Cox Creek.
Plaintiffs presented evidence during March trial
At the March trial, they presented their evidence: 30 containers holding 2,428 samples of plastic pellets and debris, which Judge Hoyt cited in his opinion. “These witnesses provided detailed, credible testimony regarding plastics discharged by Formosa, as well as photographs, videos, and 30 containers containing 2,428 samples of plastics in gallon zip lock bags and plastic bottles of plastic pellets,” Judge Hoyt wrote in his opinion. (The evidence is summed up in the Plaintiff’s Proposed Findings of Fact.)
In addition to describing Formosa as a “serial offender,” Judge Hoyt wrote that Formosa’s illegal discharges “are extensive, historical, and repetitive.” He wrote that evidence at the trial demonstrates that Formosa “has been in violation” of its environmental permit from the Texas Commission on Environmental Quality (TCEQ) and that “the violations are enormous.”
In subtle criticism of the TCEQ, he wrote that the “assessment and findings” of the commission, which fined Formosa a mere $122,000, despite years of illegal pollution, “merely shows the difficulty or inability of the TCEQ to bring Formosa into compliance with its Permit restrictions.”
At the trial, Formosa did not dispute that it discharges plastic into the water, but it tried to argue that the volume is less than the “trace” amount it is permitted to discharge under its permit. But in his opinion, Judge Hoyt calculated that under Formosa’s theory of what “trace” amounts means, the company could legally release 28,060 pellets per day.
Judge described testimony by Formosa expert witness as “illogical”
Further, Judge Hoyt described Formosa’s measures to control the discharge of plastic pellets as “inadequate.” He rejected a Formosa expert’s argument that the company was in compliance with its permit. Describing the expert’s statement, Judge Hoyt wrote, “His conclusion is illogical. Formosa cannot be in compliance simply by saying so.”
In the past few years, Formosa has both continued to discharge pellets and attempted to clean up what has been discharged.
Jeremy Conkle, an assistant professor of environmental chemistry at Texas A&M University, has calculated the amount of plastic pellet discharge that Formosa cleaned up from 2017 through early February 2019 (see Addendum). Using cleanup estimates from Formosa’s contractor, Conkle estimates that since April 2017, crews have removed between 341,000 to 3.4 million pounds of plastic debris, which equals 7.6 billion to 75 billion individual pellets.
“When I first saw the extent of plastic pellets and powder in Lavaca Bay and Cox Creek, I was in disbelief,” Conkle said in February. “It has now been over a year and the cleanup efforts appear as if they haven’t made a dent in the number of pellets and powder I’ve recently seen in these systems.”