Standing before the judge, the activists’ attorney held a bagful of plastic pellets for the courtroom to see.
“This is why we are here,” said attorney Amy Johnson, of Portland, Ore.
Monday marked the first day of trial in a federal lawsuit filed by members of Crossroads environmental activist group San Antonio Bay Estuarine Waterkeeper against Formosa Plastics Corp. In its lawsuit, the environmental group claims the plastics manufacturer violated the Clean Water Act and its Texas Commission on Environmental Quality permit by allowing the release of immeasurable quantities of plastic pellets and powder into nearby waterways.
Johnson said her clients are not seeking any money for themselves but rather monetary damages of up to $184 million to be paid to the federal government.
While Formosa attorneys did not dispute the presence of plastic pellets in Lavaca Bay and Cox Creek, the real questions, they said, are how and when those pellets got there and whether the corporation obeyed the terms of its state-granted permit. Testimony and witnesses in the bench trial, which will be decided by Senior U.S. District Judge Kenneth Hoyt, would show that Formosa has complied, said Steve Ravel, of Austin, and other attorneys for the corporation.
“Formosa isn’t just big. It’s careful,” Ravel said.
But Johnson disagreed, saying the single plastic bag she held in the courtroom was but one of 2,428 similar samples gathered and documented by her clients since 2016. Each of those samples contained plastic pellets and powder but still made up only a tiny fraction of the vast quantity released by Formosa into the environment, she said.
Those samples, which filled 30 large plastic tubs, Johnson said, clearly showed Formosa is in violation of its TCEQ permit, which allows for the release of pellets and powder only in “trace” amounts.
Johnson said upcoming witnesses for her clients during the expected eight days of trial would testify that estimates show the plant released between 6.8 to 68 billion pellets in 2018 alone.
“That’s not a trace amount, Your Honor,” Johnson said.
Both sides agreed that defining “trace” would be a key to the case.
For Johnson and her clients, “trace” means an undetectable amount of material. They argued the photographs, documentation and sampling of pellets and powder taken in ditches, creeks and natural bodies of water outside the plant were clear proof of permit violations.
“They are visible. They are tactile. You can see it,” said Johnson. “We have voluminous samples. We have hundreds of photographs.”
Formosa and its attorneys disagreed, saying a visible or detectable amount of pellets could still be considered trace in the context of the plant’s vast plastic production.
For a plant that admitted to making about a trillion such pellets each day, the amounts documented by the plaintiffs were insignificant, especially considering the plant has been in production for 23 years, Formosa attorneys said.
Both sides are also disputing the environmental impact of the pellets. Although Formosa attorneys said the pellets are not chemically reactive or toxic to people, Johnson said poisonous chemicals such as mercury could adhere to their surfaces. The Environmental Protection Agency currently designates parts of Lavaca Bay to be a Superfund site, with the average mercury concentration in red drum twice the level considered safe to eat over a sustained period.
Plaintiff Diane Wilson, who has spent much of her life shrimping and fishing in Lavaca Bay, claimed those pellets could impact other Crossroads residents who depend on the ecosystem for their livelihoods.
But Formosa attorneys said the company does care about protecting the environment. Not only has Formosa contributed $5 million to combating plastic waste in the Pacific Ocean, it has also worked to reduce pellet contamination with levees, filters and specially tasked employees at its Point Comfort plant, which employees more than 2,000 Crossroads residents and about 4,000 contractors, they said.
In fact, Ravel said, TCEQ has continually examined and approved the plant’s protective measures.
“If TCEQ has done its job, then this case is moot,” Ravel said.
However, Formosa was fined $122,000 in January and ordered to implement further cleanup measures by TCEQ for failing to keep its pellets out of the water.
For Wilson, a Seadrift native, the trial was about far more than removing unsightly trash from a body of water she grew up with. It was about caring for the natural wonders that have already provided so much for her.
Wilson watched court proceedings Monday from the bench with about 30 supporters behind her. That crowd included Louisiana residents who are concerned about Formosa building a plant in St. James Parish, a documentary maker who said the corporation killed vast numbers of fish off the coast of Vietnam in 2016 and a religious sister of a Texas order who had turned to environmental activism.
After a morning recess, Wilson was optimistic and defiant.
“This we can do, and all it takes is the doing,” she said.