Beginning in 2017, our law firm joined two other firms and students from a law school clinic to build and successfully prosecute a ground-breaking law suit to control plastic pellet pollution of Texas waters.
Since at least 2010, Formosa Plastics had been illegally discharging plastic pellets and powder into Lavaca Bay, Texas, from its Point Comfort plant. This plant converts natural gas to polyethylene and polypropylene pellets (also known as ‘nurdles’), the first step in the manufacture of nearly all plastic products. A local resident and fisherwoman, Diane Wilson, had confronted Formosa on and off over the past decade regarding the discharges but had little success. The problem was not subtle, as the photos below illustrate, but State and federal regulators had basically turned a blind eye and deaf ear to her complaints.
With the guidance from Texas RioGrande Legal Aid (TRLA) and the UT Environmental Law Clinic, Wilson and her neighbors began in early 2016 a disciplined program of sampling nearby waterways for the presence of pellets and powders generated at the Formosa site and recording the sampling episodes with photographs and written records. This effort, which continued for more than three years, made possible a 2017 federal Clean Water Act enforcement action, a “citizen suit,” in federal court.
As always in very large cases like this one, legal subtleties and factual disputes abound. For example, Formosa argued the suit was “moot,” because it had recently changed its operations to stop the pellet releases. Formosa and the State regulator (Texas Commission on Environmental Quality, or TCEQ) had been negotiating an enforcement settlement for a very small number of the discharges, and Formosa argued that made the citizen suit unnecessary. Formosa contended, correctly, that its permit allowed discharges of “trace amounts” of plastics. But, then, it argued, incorrectly, that trace amounts were all that were discharged. As an alternative, Formosa argued the term “trace amount” was so vague as to be constitutionally unenforceable. Formosa argued no one had actually seen the pellets leave the Formosa property, so the pellets could have come from anywhere. The citizens produced hundreds of photos and videos showing plastic pellets in and along the shores of the water, but Formosa argued those could all be “legacy” pellets that escaped years ago.
The case was tried for four days in March 2019 on liability issues. The Court concluded that Formosa was a “serial offender,” violating its permit by discharging floating plastic solids on some 1,149 days through outfalls to Cox Creek (the water body to the east of Formosa’s plant) during the same time period. The Court also found there were failures to properly (or at all) report these violations.
A December 2019 judgment adopted a settlement the parties developed following the liability determination. The most striking features of the settlement were a $50 million package of benefits for the local environment (and, thus, for the local citizenry) and the first-ever “zero discharge” commitment for most circumstances and a “zero-plastics” discharge commitment for all circumstances by 2024. If this is successful, it will have a huge influence worldwide on reducing the environmental impacts of first-stage plastics plants.
The now-identified projects that will benefit from the $50 million fund are:
- Federation of Southern Cooperatives/Land Assistance Fund – $20 million over five years to fund work that is further described, below
- Calhoun County – $10 million for Green Lake Park to, among other things, increase the environmental instruction capacity of the Park
- Calhoun County – $2 million for erosion control work on Magnolia Beach on Lavaca Bay
- Mission-Aransas Reserve in Port Aransas – $1 million for the (plastics) Nurdle Patrol
- Calhoun County YMCA – $750,000 for summer camps to learn about the local environment
- $5 million over five years for environmental research
- $11,250,000 to pay for future projects and for fund management. Future projects are contemplated to be related to: public education about Lavaca Bay and Cox Creek, environmental youth camps, purchase of land in the area for conservation purposes, habitat restoration, or more money for projects otherwise funded.
The Federation of Southern Cooperatives/Land Assistance Fund project is particularly worth noting. It is a project to establish a fisherpersons cooperative that will strive to re-vitalize the local community’s historic fishing economy and provide members of that community with the marketing and ship-maintenance and resource management resources that are necessary to sustain a restored fishing economy.
The Matagorda Bay Mitigation Trust maintains a website with more details on the projects it funds: https://www.mbmtrust.com/
Waterkeeper v. Formosa Plastics Corp, Texas, No. 6:17-CV-0047 (S.D. Tex. June 27, 2019). View the Consent Decree and Order through these links.