It’s Deja Vu for Louisiana Economy as Law School Clinic, Activists Challenge Air Permit

After considering numerous other sites for a new plant (including, reportedly, Brazil), North Carolina steel-product manufacturer Nucor Corp. decided last year to build a five-phase, $3.5 billion “direct reduced iron” (DRI) facility in St. James Parish, Louisiana. Nucor sought and obtained an air emissions permit from Louisiana last April for one part of the facility, a pig iron plant. It obtained a second permit for the DRI processing plant in January, which notably was the first permit awarded under the federal EPA’s controversial new greenhouse gas (GHG) standards for CO2 air emissions.

Not surprisingly, environmental activists have moved to delay or (more likely) completely deter the plant’s construction, petitioning EPA about Louisiana’s DRI permit award. The filing, and the facts surrounding it, raises numerous troubling legal and broader policy issues which illuminate a point WLF has consistently advanced over its 34 years: activism has consequences.

The plant, investment, and jobs. “This is a long-term investment,” said Governor Bobby Jindal at a news conference announcing Nucor’s decision. The plant’s first phase, to be built within two years at a cost of $750 million, will create 500 construction jobs and 150 permanent jobs with an average pay of $75,000 per year.  Median yearly income in Louisiana: $28,000.  If all five phases are completed, they will create an estimate 1,250 high-paying jobs.

The direct reduced iron plant will utilize natural gas in a revolutionary process to create higher quality steel. Consistent with Nucor’s status as North America’s largest recycler, as one news story noted, “Gases from the manufacturing process are collected at the top of the furnace and recycled, with some of the heat used to generate electricity. Electricity not used in the manufacturing facility is expected to be sold to power companies.” An EPA spokesman praised the plant, calling it a “great technology to reduce greenhouse gas emissions.”

The opposing activists. Reportedly, several environmental organizations reviewed but decided not to challenge the DRI permit. Few people in Louisiana were likely surprised, however, when the Tulane Law School Environmental Law Clinic stepped forward to challenge the permit on behalf of the Sierra Club and another local activist group. A clinic “supervising attorney” signed the petition, which included a notation that the petition was “substantially prepared by” a law student. This is the same clinic which, on shaky environmental justice grounds, helped end chemical company Shintech’s efforts to build a $700 million plant in Convent, Louisiana.  That campaign inspired attempts by former Louisiana Governor Mike Foster and some legislators to cabin the clinic’s ability to sue businesses and government entities, a battle that continues today.

The legal/regulatory issue. Sierra Club’s petition cites a number of grounds compelling which it claims compels EPA to object to the Louisiana regulators’ permit approval. The most intriguing and troubling of them is that the GHG standards EPA adopted this past January should be applied retroactively to a permit approved last April.  Sierra Club argues that state officials should have combined the pig iron plant project with the DRI project for purposes of determining GHG emissions.  This argument flies in the face of one of our most fundamental principles of law: that laws and rules should generally not be applied retroactively.  If EPA objects to the DRI permit on this ground, businesses across America should be very alarmed.

We hope that EPA officials maintain their above-mentioned enthusiasm for the direct reduced iron technology, and refuse the activists’ request to object to the permit. Unfortunately, that probably won’t be the end of the legal obstructionist tactics. No doubt, government officials in Brazil or another country would welcome the $3.4 billion capital investment and 1,250 jobs the project would create.

3 thoughts on “It’s Deja Vu for Louisiana Economy as Law School Clinic, Activists Challenge Air Permit

  1. Pingback: Last Week At WLF « The Legal Pulse

  2. Pingback: Sierra Club,EPA -Stopping Plants-Killing Jobs « SHAWSBLOG

  3. Pingback: Law schools roundup

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