Frederick, Perales, Allmon, & Rockwell partner, David Frederick, and legal assistants Katie Aplis and Katie Lehrer worked with Texas Rio Grande Legal Aid (TRLA) and the University of Texas Environmental Law Clinic to represent a community of Port Lavaca residents against Formosa Plastics Corp., the area’s largest employer. The residents had voiced concern over the long-running unpermitted discharges of plastics and pellets from the Formosa Plant to Cox’s Creek, and into Lavaca Bay. This unpermitted discharge had been occurring since at least 2000, but locals gained little help from state and federal environmental regulators. Specifically, the Clean Water Act enforcement case that was brought against Formosa found 736 days of unpermitted plastics’ discharges between January 2016 and March 2019. These discharges had gone unreported.
After the findings, Formosa Plastics began to negotiate with the plaintiffs to seek a solution that would lead to the cleaning of the Port Lavaca waterways as well as avoid further litigation. Both parties were able to agree to a plan of action that shows a bright future for not only Port Lavaca, but could set a standard for accountability for plastic manufacturers across the country.
The plan sets out for a “zero discharge of plastics” by Formosa by the year 2024. To reach this goal, Formosa will resolve issues connected to the stormwater system, removing plastics and pellets before the water is discharged to Cox Creek. This system won’t discharge to the creek unless there is a serious flooding event, limiting the potential for any further plastic releases. The plant will also see improvements that limit the amount of plastics and pellets that enter the stormwater system in the first place. Monitoring continues at Formosa to ensure there the plastic discharges are limited. The agreement includes serious penalties for any discharges, and funds collected from any subsequent violations will be used for local environmental projects or research. Finally, a remediation monitor will ensure that all plastic discharges, past and potential future, will be cleaned up in a way that minimizes damage to Cox’s Creek and the Lavaca Bay environment.
For local mitigation projects, a fund of at least $50 million will be established over the course of the next 5 years. Several projects have been identified for funds, including public education projects and summer camps, erosion control work in Lavaca Bay, and the creation of Green Lake Park. Notably, the Federation of Southern Cooperatives/Land Assistance Fund, receiving $20 million alone, will work to restore and revitalize the historic fishing economy of Lavaca Bay. A fisherpersons’ cooperative will be established, offering marketing and ship-maintenance essential to their livelihoods.
We are proud of the work of TRLA, the University of Texas Law Clinic, and our staff in the Clean Water Act enforcement case and the subsequent agreement. The cooperation between Formosa Plastics and the citizens of Port Lavaca is exciting and significant. It will hopefully set a precedent for relationships between plastics companies and locals that work together to ensure the protection of their shared environment.