Lawsuit against La. DEQ over Entergy air permit
24th June 2019 · 0 Comments
By Ryan Whirty
Contributing Writer
As Entergy continues construction work on a new, natural gas-fired power plant at Michoud and opponents of the facility celebrate a June 14 judge’s ruling in New Orleans, everyone involved in the furious controversy surrounding the facility is eyeing the outcome of a separate legal action in Baton Rouge against the Louisiana Department of Environmental Quality.
And that second lawsuit could have even bigger consequences on Entergy’s drive for a new power plant.
While the issues of Entergy’s employment of paid actors at public hearings and the City Council’s subsequent, now-nullified votes have been roiling in New Orleans district courts, in the state capitol the potent legal challenge to Entergy’s construction of the $210-million gas-fired power plant has been churning.
In late February, shortly after the New Orleans City Council’s confirming approval vote and its agreement with Entergy, the Deep South Center for Environmental Justice and other plaintiffs filed suit against the Louisiana DEQ and its secretary, Chuck Carr Brown, in 19th Judicial District Court asking for either a writ of mandamus or an injunction negating DEQ’s permitting of Entergy’s proposal and blocking the company from doing any further work or construction on the New Orleans East facility.
Since Entergy already owns the land – the new facility will add on to and replace an existing Entergy power plant on the site – and because the property is zoned properly, the only governmental approval the company needs to break ground comes from the state Department of Environmental Quality.
That perhaps renders any action the New Orleans City Council takes on the matter secondary to the DEQ (The council’s vote only concerns whether the company can allow Entergy to charge users and ratepayers for the plant’s construction, not whether it can actually break ground).
DEQ undertakes an assessment of the potential environmental and health impacts of any construction project, including the Michoud gas-fired power plant, a process that includes a public hearing or hearings. If and when the department determines that the facility will adhere to all applicable environmental-protection laws, the department can issue a building permit allowing the company to break ground.
In the case of the Entergy project in New Orleans East, that state permitting process seems to have been undertaken in a convoluted, jumbled and fitful way – including the filing of multiple applications, as well as the imposition of and alleged failure to meet several filing deadlines – that, according to the DSCEJ and the other plaintiffs in the lawsuit in 19th district court, violated state law and therefore renders DEQ’s approval of the Entergy project null and void.
The legal action asserts that DEQ was derelict in holding Entergy to the state and federal laws governing the environmental permitting process, charging that the department’s laxity resulted in a permitting process that was incomplete and irregular, which allegedly allowed Entergy to skirt the legality of the permitting mechanism.
Essentially, Entergy’s application to construct the new gas-fired facility was actually a revision and addition to the company’s original operating permit – the one for the now-decommissioned older facility – that was issued in 2013 and was due to expire in December 2018.
However, after originally submitting its renewal application in 2016 – way too early under existing state law – Entergy revised the application, and the lawsuit alleges that the subsequent, revised renewal application was incomplete and filed under a lax timetable.
In addition, the lawsuit charges that the DEQ’s eventual approval of the renewal application earlier this year came after the original operating permit expired in December 2018, an action the plaintiffs believe was illegal, which, the lawsuit charges, invalidates the DEQ’s approval of the plan earlier this year.
“The LDEQ has shown a blatant disregard for enforcing the legal requirements of the Part Operating Permits Program,” the lawsuit charges. It adds that “LDEQ’s decision to unlawfully issue a renewal of a permit that has expired warrants a judicial remedy.”
The lawsuit in Baton Rouge also charges that DEQ illegally dismissed public concerns about the revised Entergy proposal.
“In three separate letters to the LDEQ, several organizations, including Petitioners, requested a public hearing on Entergy’s revised application on the basis of significant public interest,” the lawsuit says. “The LDEQ denied these requests based on its view that the public hearing held on March 6, 2018 – prior to the to the revision of the draft permit renewal – was sufficient; and the revisions were limited in scope. However, the LDEQ’s view on this matter bears no relation to the significant degree of public interest, which is the sole factor for determining whether to conduct a public hearing.”
Mark Nguyen, a spokesperson for the New Orleans chapter of Vietnamese American Young Leaders Association, said it seems like the DEQ and Entergy skirted the rules of fair play.
“I don’t know what strings were pulled behind the scenes,” he said, “but DEQ went beyond its power and responsibilities.”
A spokesperson for the DEQ told The Louisiana Weekly that the department does not comment on issues involving pending litigation.
An Entergy spokesperson told The Louisiana Weekly that the company hasn’t yet commented publicly about the DEQ lawsuit and has no comment at this time.
However, in April, Entergy – under the name Entergy New Orleans – filed a petition of interview in the case, stating that while the plaintiffs only named DEQ and Brown as defendants and not the company, Entergy has a significant material interest in the lawsuit and should be allowed to participate as the lawsuit unfolds.
The petition to intervene states that “ENO’s participation in this action is essential to protect its rights and interests in the Permit.”
“As holder of the Permit [that] Plaintiffs seek to nullify, ENO clearly has an interest in this matter and is so situated that the adjudication of this action in its absence would impair ENO’s ability to protect that interest,” the petition adds.
In addition to the alleged disregard and misuse of the formal permitting process, the DSCEJ’s lawsuit against DEQ specifically asserts that the revised proposal submitted by Entergy would result in significant and detrimental air pollution, in violation of the federal Clean Air Act.
“The permit allows the gas plant to annually release more than one million pounds of air pollution in a vicinity that includes residential neighborhoods and schools,” the suit states. “Among the pollutants that would be emitted into the air by the proposed gas plant are more than 300,000 pounds of particulate matter, which are scientifically known to cause premature death by lung cancer and cardiopulmonary mortality from short-term exposure. Entergy plans to operate the gas plant on an intermittent basis when demand is expected to be higher than the average supply level. Such an operation entails a series of start-ups and shut-downs that would worsen air quality with pollution spikes.
“These revisions added an entirely new category of air pollutants, including ammonia; increased air emission levels; and changed emissions data in six sections of the application,” the action adds. “Entergy’s submittal revised and replaced 30 pages of the permit renewal application.”
Monique Harden, assistant director of public policy for the Deep South Center for Environmental Justice, told The Louisiana Weekly last week that the plaintiffs “believe the DEQ unlawfully issued an air permit to Entergy and failed to conduct a completeness review of Entergy’s application as required by law.”
A show cause hearing was held May 28 in 19th District Circuit Court before Judge Richard “Chip” Moore III. With that done, a ruling by Moore on whether to block construction of the gas plant will hopefully come soon.
This article originally published in the June 24, 2019 print edition of The Louisiana Weekly newspaper.
