Environmental groups say the Trump administration's new ethane cracker air pollution standard is far too weak. The petrochemical industry says it's too strong. Both are challenging the rule in court.
By Dana Drugmand
As the fossil fuel sector tries to reposition itself to endure well into the low-carbon era, a regulatory battle has begun between the petrochemical industry and a coalition of nearly a dozen environmental and frontline community groups.
The battle concerns new air pollution rules for massive industrial plants that transform methane gas into a resin used to make plastic. The outcome, which may play out in court, is a life and death matter for the communities involuntarily hosting these facilities, where often the majority of residents are Black and brown.
“What we’re talking about is whether people are going to live or die,” says Alex Bomstein, an attorney with the Pennsylvania-based group Clean Air Council. “People who haven’t volunteered to breathe in dirty air, people who haven’t said, ‘I want this polluting facility in my neighborhood,’ people who aren’t getting a dime from the industry.”
Clean Air Council is one of 10 environmental and community organizations challenging the federal government’s final air pollution rules for ethylene production facilities, also called ethane crackers. Ethane, a byproduct of methane gas fracking, is a key feedstock of ethylene, a base material for plastics. Producing ethylene is a heavy industrial process that results in emissions of highly dangerous pollutants including toluene, which can cause severe neurological damage, and benzene, a known carcinogen.
But regulators at the Environmental Protection Agency have determined that the human health risks from its new pollution standard for ethane crackers under the Clean Air Act, which was finalized in July this year, are “acceptable.”
The coalition of groups and communities fighting these facilities disagree. In September they petitioned a federal appeals court to review the rule, and have also filed an administrative petition asking EPA to reconsider certain aspects of the rule.
“It’s a matter of the impact it has on communities that are already overburdened,” says Juan Parras, the executive director of Texas Environmental Justice Advocacy Services, one of the groups petitioning EPA to strengthen the rule.
According to the coalition’s court filings, there are presently 26 U.S.-based ethane crackers, sited primarily in Louisiana and Texas, and 10 more in the works. The new regulation applies to all the existing plants plus five of the planned facilities, according to the EPA. Most sit in polluted petrochemical corridors where residents grapple with some of the poorest air quality in the nation, as well as high rates of respiratory illnesses and possible cancer clusters.
One of the proposed facilities, the Formosa petrochemical complex in St. James Parish west of New Orleans, recently had its federal wetlands permit suspended while the Army Corps of Engineers looks into why the only two sites considered for the permit were both next to majority Black communities, while sites near largely white communities appear to have been ignored. A state judge has also ordered Louisiana air regulators to assess its grant of Formosa’s air permit for racial bias.
Petrochemical production plants sited along the Texas Gulf Coast “pollute our communities with seven cancer-causing chemicals day in and day out,” says Parras.
Groups such as Louisiana Environmental Action Network, Louisiana Bucket Brigade, and Earthjustice successfully sued the EPA in 2015, with the court ruling in 2017 to force the agency to update the emissions standards for ethylene production facilities.
The groups say that the new rule has improvements. But they contend it also contains too many exemptions, and fails to go far enough to protect public health as required under the Clean Air Act.
“EPA found a cancer risk of 100 in 1 million for these facilities, which is really unacceptable,” said Emma Cheuse, an attorney at Earthjustice, which is representing the environmental coalition now challenging the rule in court.
“Communities are having to go to court for a second time, now during a pandemic, just to get the basic health protections they need,” Cheuse said. “The last thing communities in places like St. James Parish need are even more levels of toxic air quality on top of what they have to face already.”
The EPA’s ethane cracker air rule is also facing administrative and legal challenges from two major petrochemical industry trade groups, which contend that it goes too far. In September, the American Chemistry Council and the American Fuel and Petrochemical Manufacturers filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit.
The groups also directly petitioned the EPA to reconsider parts of the rule that impose restrictions or new requirements on particular technologies. This challenge raises highly technical issues about specific pieces of manufacturing equipment, like storage vessels, heat exchange systems, and process vents, improvements mandated under the rule that are supposed to reduce toxic air pollution by an estimated 1,459 tons per year. The industry’s concerns boil down to the standard objections to regulations: they’re too costly and too burdensome.
This has put the community and environmentalist coalition in the unusual position of intervening against the industry’s legal challenge to the new regulation, while at the same time going to court to make it stronger.
The petrochemical associations have asked the court to delay taking up their lawsuit until the EPA responds to their administrative petition. The agency is expected to announce at that time whether it intends to act on the activist coalition’s petition as well. Since it cannot both weaken and strengthen the rule, and leaving it unchanged would satisfy neither side, litigation is likely to commence at that point.
Despite challenging certain parts of the ethane cracker rule, the petrochemical trade groups agree with EPA’s determination that the rule sets appropriate pollution standards for substances associated with health risks. According to the industry, the risk assessment assumptions are conservative, meaning the agency is being too protective when it comes to public health.
When ACC and AFPM representatives were asked if they would themselves want to live in close proximity to an ethane cracker, a spokesperson for the ACC forwarded the industry's December 2019 comments to regulators on the proposed regulations, which discuss EPA’s analyses of these health risks.
According to the ACC and AFPM, "the toxicity assessments rely on conservative assumptions that are intended to produce toxicity values for potential acute and chronic health effects that are highly conservative and protective of susceptible population groups, including children and environmental justice populations.”
While noting “potential disparities” in demographic groups living in close proximity to these polluting sources, EPA concluded that the public health risks created by its ethylene rule were acceptable overall.
The activists disagree. “It’s shameful for an agency of the U.S. government, the EPA, to consider human life or individuals who have cancer as expendable,” says Parras.
In San Patricio County, Texas, just north of Corpus Christi, ExxonMobil and the Saudi Arabian company SABIC are building what would be, according to The Dallas Morning News, the world’s largest ethane cracker.
“Again it will be minorities who take the bulk of this pollution,” says Parras, because the community where this $10 billion industrial Goliath is sited has a large Latino population.
Environmental groups are concerned that along with the environmental injustices to local communities, ethylene crackers are contributing to the climate crisis. The 26 facilities in the U.S. alone spew about 64 million tons of greenhouse gases into the atmosphere each year, according to Earthjustice, which is equivalent to the annual emissions of 13.8 million cars.
These emissions are likely to rise as the fossil fuel industry looks to plastics production to keep profits flowing as oil demand wanes.
“Plastics is the new savior for the petrochemical industry as they see it,” Bomstein says. ”Industry thinks it can pivot to plastics and retain their social license,” because the connection between methane gas production and plastics manufacturing is not as clear in the public mind as the link between burning fossil fuels and climate change.
Given the petrochemical sector’s plans for imminent, explosive growth, the environmentalists challenging the ethane cracker air rule say EPA should act swiftly to tighten the emissions standards.
“It’s important for everyone to know that plastics aren’t clean,” says Bomstein. “Plastics are fossil fuels, and these facilities use enormous amounts of fossil fuels to operate.”
Dana Drugmand is a freelance journalist specializing in climate change, clean energy, and citizen activism. She holds a Master’s degree in Environmental Law & Policy with a certificate in Climate Law from Vermont Law School. Twitter: @Dana_Drugmand