On March 22, 2022, U.S. District Judge Kenneth Hoyt of the Southern District of Texas harshly ruled that Formosa Plastics’ excuses for skirting a $50 million consent decree because of the dumping of billions of plastic pellets in the Gulf of Mexico “fail[ed] on all counts.” In the face of this wanton pollution, corporate plastics giant Formosa argued that the price of cleaning up, what is referred to as “very small quantities of plastics,” outweighed the benefits of decontaminating the billions of plastic pellets it had polluted into the Gulf. In response, the Court contrasted that “[t]he consent decree does not use the term ‘small’ to describe the conditions that must exist in . . . ecosystems before further remediation is unwarranted.” Further, the Court took the opportunity to parse Formosa’s couching of its mass pollution as “small”: “Use of the term ‘small’ to describe the number of plastics that can be tolerated in the ecosystem fails to address the equally important qualitative requirements that must be also met pursuant to the consent decree.”

The original ambit of the cleanup plan was formed in a multimillion-dollar resolution in 2019, following lawsuits against Formosa over allegations of illegal dumping in Lavaca Bay and Cox Creek. What is known beyond certainty is that Formosa admits to such dumping—but disagrees on any interpretation that categorizes the billions of plastic pellets dumped in the Gulf as anything other than “small.” Presumably, that Formosa contends that the remaining damage to be decontaminated is/was presently small, it would follow that remediation efforts would be wasteful, or ineffective. However, the Court ruled that the consent decree clearly if decontamination efforts must continue until these efforts do more harm than good. Indeed, the language of the decree stipulates that cleanup may only cease after “most plastics” are gone and if it is determined “that further remediation efforts may harm” the environment.

In closure the Court commented that it was “of the view that the quantity of plastic remaining inside the containment booms does not dictate conducting a cost-benefit analysis to determine whether an acceptable ecological return has been reached because the determination is relevant only when further removal threatens the ecosystem . . . [t]hat is to say that the costs associated with continuing interim cleanup [are] tied to whether further removals will harm the . . . ecosystem[].”

Abraham Watkins is experienced in matters of environmental litigation and stands ready to help in the event you or someone you know has been injured because of corporate pollution and illegal waste or dumping, in addition to workplace incidents, serious collisions, and premises injuries. For a free consultation and an explanation of your legal rights and remedies in the wake of tragedy or injury, please contact the office of Ben Agosto III at Abraham, Watkins, Nichols, Agosto, Aziz & Stogner, by letter at 800 Commerce Street, Houston, Texas 77002, by phone at (713) 222-7211; toll-free at 1-800-594-4884; or by email at [email protected].