The 19th Judicial District Court in Baton Rouge, Louisiana issued a decision on September 14, 2022, vacating a proposed industrial facility’s permit issued by the Louisiana Department of Environmental Quality (“LDEQ”) and finding that LDEQ violated the federal Clean Air Act and its duty under the Public Trust Doctrine.[1] Although the decision concerns permitting for a specific facility in St. James Parish, FG LA’s planned ethylene and propylene complex, the decision has far-reaching effects for air permitting in Louisiana under the Prevention of Significant Deterioration (“PSD”) program. In the nearly 40-page decision, the Court holds on several issues including disapproval of the use of Significant Impact Levels (“SIL”) in the PSD analysis, requirements for Environmental Justice reviews and implementation of the U.S. Environmental Protection Agency’s EJSCREEN tool,[2] review of air modeling conclusions, and analysis under Louisiana’s so called “IT Factors.”[3] The opinion also states that the LDEQ failed to perform a cumulative impact analysis for potential air toxics emissions from the planned facility such as ethylene oxide and benzene.[4]

The Court notes that environmental justice issues are “at the heart of” this case. Environmental justice issues have been elevated by the Biden administration’s efforts to highlight and advance policies to address and support underserved communities. In January of 2021 President Biden signed Executive Orders (“E.O.”) 13985 and 14008, which concern environmental justice issues. In connection with these E.O.s, EPA published a guidance document entitled “EPA Legal Tools to Advance Environmental Justice” in May of 2022. The document includes lengthy discussions on cumulative impacts of air toxics and analyzes the current EPA regulatory frameworks and statutory authority to implement cumulative impacts analysis as it relates to overburdened communities. Still, programs at both the federal and state level designed to control and mitigate toxic air pollutants often address cumulative impacts only indirectly and leave open practical questions about applying a cumulative impact analysis to review of a stationary source air permit or permit modification.[5]

For instance, EPA regulates over 150 hazardous air pollutants and provides control technology standards (National Emission Standards for Hazardous Air Pollutants, “NESHAP”) for individual industries. But other than vague “other impact analysis” requirements in the PSD program (which the Court did not reference here), there is no regulatory framework or specific guidance for considering the cumulative impact of emissions of multiple hazardous or toxic pollutants. The difficulty grows exponentially upon consideration of the cumulative impacts from multiple commercial and industrial facilities. Although some states (like Louisiana) have regulated beyond EPA’s list of hazardous air pollutants through the development of state-only toxic air pollutant ambient standards, these also generally consider a single pollutant’s environmental and health effects rather than aggregate impacts.[6]

As acknowledged by the EPA, there are significant research gaps and deficient data areas that need to be addressed to inform a proper cumulative impact assessment.[7] Even more so, a cumulative risk assessment will require more refined biological and chemical data and methods that are not currently developed.

The Court here did not address these issues with performing a cumulative impacts analysis and rejected LDEQ’s more qualitative analysis of potential air toxics emissions at the proposed facility. The Court found instead that:

…LDEQ cannot determine [the community’s] full risk for cancer from exposure to toxic air pollutants if the agency does not consider FG LA’s ethylene oxide and benzene emissions in combination with such emissions from other facilities that the agency itself says drives EPA’s cancer risk data for the area [referencing the EPA EJSCREEN].

Thus, the Court held that LDEQ’s conclusion about air toxics was arbitrary and capricious and not supported by a preponderance of the evidence in the record. And because LDEQ relied on this conclusion in its Public Trust Doctrine analysis, the agency failed to meet that duty as well.

There remains time to appeal this decision to the Louisiana First Circuit. But the opinion signals at least a shift towards cumulative impact analysis requirements in air permitting in Louisiana, considering that the 19th Judicial District is venue for all LDEQ permit challenges. Environmental justice issues, and especially air toxics issues, are becoming a battle ground for air permitting application challenges. In the meantime, stakeholders and permittees should consider performing at least a qualitative analysis of the effects of air toxics from the project and surrounding areas for the record.

[1] The Public Trust Doctrine is established under the Louisiana Constitution. It requires that the natural resources of the state and the quality of the environment must be protected and conserved consistent with the health, safety, and welfare of the people. See La. Const. art. IX §1.

[2] The EPA’s EJSCREEN tool has emerged as a standard for the environmental justice analysis in air permitting and otherwise. But the EJSCREEN does not analyze or produce cumulative impact information. Rather, the EJSCREEN produces a series of indices that combine demographic indicators with one single environmental factor.

[3] In Save Ourselves, Inc. v. La. Env’t Control Comm’n, 452 So. 2d 1152 (La. 1984), the Louisiana Supreme Court interpreted the Public Trust Doctrine to require LDEQ to address certain factors before issuing a permit. These are referred to as the “IT Factors” after the name of the permittee in the case.

[4] The case is Rise St. James, et. al. v. Louisiana Department of Environmental Quality, Docket No. 694,029, 19th Judicial District Court Parish of East Baton Rouge (Sept. 14, 2022).

[5] See Rucinski, Addressing Cumulative Impacts of Air Toxics in Air Permitting, Air & Waste Management Association’s 115th Annual Conference & Exhibition, held June 27-30, 2022 in San Francisco, CA (providing a full discussion of current EPA regulatory frameworks for addressing cumulative impacts and discussion of state and federal guidance on practicalities of implementing such reviews in air permitting).

[6] See e.g., Louisiana Administrative Code – LAC 33:III.Chapter 51, Tables 51.1 – 51.3; see also California Air Resources Board (CARB), Airborne Toxic Control Measures. In 1989 Louisiana enacted Louisiana Revised Statute 30:2060 which called for (among other mandates) the establishment of a toxic air pollutant (“TAP”) emissions control program, the development of a baseline for TAP emissions, and a 50% reduction of statewide TAP from that base line level within 20 years. The LDEQ promulgated regulations that, in addition to incorporating MACT standards, establishes reporting requirements for all major sources of TAPs and sets ambient air standards for each TAP. Louisiana’s list of TAPs includes all of the federal HAPs and adds others that are of particular concern in Louisiana, including ammonia and hydrogen sulfide.

[7] See Cumulative Impacts, Recommendations for ORD Research, EPA, January 2022 (available at: (last accessed 05/13/2022).