February 21, 2024

Facing a pivotal federal investigation into Louisiana’s relationship with petro-chemical companies, the state’s attorney general hired lawyers who were simultaneously representing one of the main corporations at the center of the investigation, documents reveal.

The revelations, contained in documents released under public records requests, have led to allegations of a major conflict of interest and come just weeks after the Environmental Protection Agency [EPA] dropped its civil rights investigation.

Internal emails, contracts and payments, show that the office of the attorney general, Jeff Landry, hired two lawyers to enter closed-door negotiations with the EPA during the 14-month civil rights investigation. But John King and Tim Hardy were also representing the Taiwanese chemicals firm Formosa in separate litigation, challenging a decision to revoke the company’s state air permits.

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Formosa has proposed a gargantuan plastics facility in St James parish, at the center of “Cancer Alley”, the heavily polluted corridor between New Orleans and Baton Rouge, but has been paused by a series of recent court and permitting decisions.

In June, however, the EPA prematurely dropped its investigation, which included an investigation of 14 air permits issued for Formosa and the racially disproportionate impacts of air pollution in the region, without declaring any findings. The case was considered a groundbreaking development by activists who have long argued that the petrochemical industry’s expansion on Louisiana’s coast is not only harmful but also an act of racism.

The decision, a blow to local residents seeking justice, prompted suggestions the EPA may have buckled due to outside pressure from a legal challenge filed by Landry.

But revelations that the two lawyers were working for both the state and Formosa indicate that the federal government may have also faced direct pressure at the negotiations table in the civil rights investigation itself, which was announced in April last year.

“The conflicts are apparent and disturbing,” said Monique Harden, the director of law and policy at the Deep South Center for Environmental Justice, a community advocacy group not involved in the civil rights complaints that triggered the EPA investigation. “We have the attorney general of Louisiana receiving legal services from the same attorneys who are representing a company seeking a state issued permit.”

A yard sign protesting Formosa in St James parish, Louisiana.
A yard sign protesting Formosa in St James parish, Louisiana. Photograph: Edmund D Fountain

Landry’s decision to hire petrochemical lawyers gave them an active role in the conversations that shape how the state follows its obligations under the Civil Rights Act, especially concerning the permitting of industrial facilities in communities of color with legacies of pollution.

Even the EPA expressed ethical reservations about the industry representatives, records show, but later backed down from its concerns as the lawyers remained in negotiations.

The federal agency explicitly raised concerns in a February email that Formosa representative John King could compromise the “integrity” of the investigation.

Landry, a hard-right conservative, is the frontrunner in this year’s gubernatorial election in Louisiana and is a member of the Republican Attorneys General Association, a Koch Industries funded lobbying group. He has been endorsed by Donald Trump and has described the climate crisis as “a hoax”.

In May, Landry filed a suit against the EPA challenging the recent complaints and the very idea of Title VI of the Civil Rights Act, a critical avenue for addressing not only intentional discrimination, but more embedded, systemic forms of inequality that result in “disparate impacts” across race, gender and national origin.

The following month, the EPA dropped the complaints despite earlier promises by the Biden administration to support environmental justice communities with “the vigorous enforcement of civil rights”.

Residents’ history of mistrust with Formosa Plastics – which has been attempting to build in Cancer Alley for at least 30 years – deepened upon learning that lawyers representing the company were allowed into the negotiations process.

In their February email, the EPA expressed fears that “having the legal representative of a facility participate in this process potentially may create a perception in the community and the public generally that any informal resolution agreement resulting from our hard work together should not be trusted and/or should be questioned”.

But that’s exactly what happened.

“It feels like we’ve been left at the altar,” said Jo Banner, a resident of St John the Baptist parish. “After putting us through this process, and for [the EPA] to pull out in this way, we need them to step up in other ways.”

“A mile away from Formosa’s [proposed facility] is an elementary school of little Black kids. And my heart breaks because I’m like, ‘These little Black kids are going to go through the same thing I was growing up there,’” said Shamyra Lavigne, who grew up in St James parish.

Lavigne is a member of Rise St James, which filed a lawsuit – in addition to the civil rights complaint – challenging the state’s decision to permit the petrochemical complex.. The local subsidiary of Formosa, represented by John King and Tim Hardy, joined on the side of the state, which lost the case. Their lawsuit resulted in a district judge withdrawing Formosa’s permits, in a significant, rare victory for residents.

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In September, Louisiana’s environment agency (LDEQ) and Formosa filed an appeal of this decision, under the same legal counsel as before. This case is ongoing. But it’s become clear that this is not the only legal avenue these lawyers have to shape decisions relating to the plastics behemoth.

While the Biden administration’s EPA has recognized the Civil Rights Act as a critical tool for environmental justice, the trajectory of the recent complaints raise questions about these bedrock protections.

When LDEQ and LDH agreed to the informal resolution process designed to resolve the complaints, in April 2022, it looked like it would rectify some of the issues raised with Louisiana’s air permitting process – specifically, early drafts of the resolution agreements show that it would have required the state to consider race when greenlighting polluting facilities, among other environmental justice reforms.

But over the next year, the efforts to reach these agreements unraveled as the attorney general’s office, represented by the same lawyers as Formosa, frequently pushed back against the EPA in these discussions, according to accounts filed in court.

Members of Rise St James attend a public hearing in July 2019.
Members of Rise St James, including founder Sharon Lavigne (center), attend a public hearing in July 2019. Illustration: Julie Dermansky/Julie Dermansky for EarthJustice

In November, 2022, the office of the attorney general entered into a contract with Breazeale, Sachse and Wilson, a Louisiana law firm with more than 70 attorneys. The contract, obtained through a records request, includes the rates for five attorneys at the firm, including attorneys John King and Tim Hardy. Both lawyers charged the state $400 an hour for their services. The firm was paid a total of $96,000 by the state between March and June, according to vendor payments receipts.

Hardy and King did not respond to questions about their work for the state, referring questions to the attorney general’s office.

Noting ongoing litigation, the attorney general’s office did not respond to questions about their contract with Breazeale, Sachse and Wilson, which does not end until October. The office’s contract with the law firm authorized spending up to $150,000 on attorneys’ services.

About two weeks after the contract went into effect, Landry’s office had a call with the EPA requesting to participate in the resolution negotiations between the federal agency, LDEQ and Louisiana’s health department [LDH], according to a letter from the attorney general’s office. During the November call, the attorney general’s office also expressed concern that the EPA had made public an October letter to state agencies about finding “significant concerns” that Black residents in St John the Baptist parish, St James parish and Cancer Alley had been the target of discrimination through LDEQ’s air permitting.

In a January 2023 call, the EPA continued to take a firm stance in the need to reform Louisiana’s permitting process, according to court filings. But this was met by pushback from the attorney general’s office and LDEQ who accused the EPA of asking for reforms beyond legal requirements.

King and Hardy were present in the January scheduled resolution discussion calls, according to emails obtained through a records request. But attorneys with Tulane’s Environmental Law Clinic and EarthJustice, who filed the civil rights complaints on behalf of residents of St James parish and St John the Baptist parish, were not invited to those calls. Neither were the residents. While this is standard for these negotiations, initial conversations with the EPA led participants to believe they’d have more say in the process.

It wasn’t until February when Tulane’s Environmental Law Clinic director, Lisa Jordan, first learned of the Formosa attorneys’ involvement when she saw their names on an email she got back from a public records request. “Our initial reaction was shock – our clients’ was disgust – and then we became concerned that EPA likely was not aware that these attorneys currently represented (and still do) Formosa in the state court litigation,” Jordan said. The clinic notified the EPA of the apparent conflict of interest that same day.

The EPA did not respond to questions from the Guardian. “Please direct your questions related to Louisiana’s legal representation to the state,” wrote Dominique Joseph, a public affairs officer for the EPA.

“Louisiana taxpayers are paying a couple of attorneys to shut down civil rights,” Harden said. “I don’t think anyone would be willing to give up their civil rights so a company can operate. That’s what the AG is pursuing.”

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