Formosa’s conviction

The lawsuit, filed in 2017, led to a ruling delivered in 2019. Thus, the decision was relatively swift. First, the court affirmed to have jurisdiction on the case (Formosa ruling, III, p. 3) against Formosa’s argument that challenged the plaintiffs’ standing to bring the suit. Second, the judge found, with a declaratory judgment (i.e., a legally binding ruling defining and outlining the rights and obligations of each party), that Formosa had violated and kept violating its TPDES Permit and consequently the Clean Water Act, which makes unlawful the discharge by any person of any pollutant that is not discharged pursuant to a permit. The violations were said to be “enormous” and the company was said to be a “serial offender” (Formosa ruling, XI, p. 17), especially based on evidence of unlawful discharges documented by the plaintiffs and—to a smaller degree—on evidence of prior state enforcement submitted by the plaintiffs. The ruling indeed also noted that the US EPA had fined the company already multiple times for breaches of pollution regulations.

The judge followed a series of key steps in defining Formosa’s liability (Formosa ruling, IV, from p. 4). Overall, Texas rules prohibit the discharge of “floating debris and suspended solids” into surface waters (Formosa ruling, IV, p. 5). Formosa’s Permit did not cover the discharges of the company, which thus violated Texas rules and the Clean Water Act. Furthermore, the Permit also requires Formosa to report in writing and within 24 hours any incompliance that may endanger health, safety, and the environment. The ruling notes “evidence shows that Formosa has never reported a single discharge of floating solids to TCEQ” (Formosa ruling, XI, p. 17). To verify violations of permits, the TCEQ conducts inspections from time to time utilizing “visual sightings” (Formosa ruling, XI, p. 17) and photographs (which is similar to what the local residents did). The plaintiffs informed us that their complaints often spurred the TCEQ to conduct visual sightings of their own, establishing a precedent for citizens acting in a warning role in support of compliance.

Zooming into the evidence

The court based its ruling on a combination of evidence from a number of sources, including citizen-collected evidence that corroborated other submitted evidence of Formosa’s violations. The plaintiffs’ evidence indeed reinforced itself (the word “confirm” is often used in the ruling in relation to the various pieces of evidence). Yet the ruling does not explicitly discuss the relationship between the pieces of evidence. According to a plaintiff and attorney Johnson, only this combination of evidence won the case. Citizen-collected evidence was key to prove the magnitude of the violations, but the citizens’ data alone was not enough; key experts and testimony admissions were fundamental. Overall, the plaintiffs’ evidence featured:

• Photographs, videos, and 30 containers containing 2,428 samples of plastics in gallon zip lock bags and plastic bottles of plastic pellets” (Formosa ruling, VI, p. 8) that the San Antonio Bay Estuarine Waterkeeper collected on more than 500 distinct days on Lavaca Bay between January 31, 2016 and March 12, 2019 (Formosa ruling, VI, p. 10). One plaintiff informed us that they took approximately 12,000 photos. The case material that we received from attorney Johnson included hundreds of these photos and videos, which were actually provided as evidence.
• Testimony of plaintiffs who saw the plastics in situ and “provided detailed, credible testimony regarding plastics discharged by Formosa” (Formosa ruling, VI, p. 8);
• Third-party testimony: The “Waterkeeper offered testimony of [other] interested citizens” (Formosa ruling, VI, p. 8), which supported their claims with photos and videos;
• The knowledge of three independent experts (two with PhDs), against which Formosa raised the Daubert standard for admissibility of scientific evidence. The Daubert standard is a framework for a judge to decide if evidence is credible, developed in the case Daubert v. Merrell Dow Pharmaceuticals. The court accepted the expert testimony as reasonable and credible;
• TCEQ findings of discharged plastics that the plaintiffs could easily request and access, on the basis of the Texas Public Information Act;
• Admissions of defendants’ experts who viewed videos of the discharged plastics and agreed that the discharge was “more than trace amount;”
• Formosa documents and photos, including audits of their stormwater and wastewater system, as well as audits about ways to control plastics from being spilled. Formosa’s own testing of plastics on the shores of Lavaca Bay was used by the plaintiffs to show that most of the plastics found there had the chemical signature of the company.

We also reviewed a copy of the Trial Exhibits List and the Plaintiffs’ Amended Proposed Findings of Fact (shared by attorney Johnson), in which the methodology for identifying and collecting evidence of plastics discharge is documented (Proposed Findings of Fact, p. 74). We noted the admission of all evidence submitted by the plaintiffs.

The pictures, videos, and plastics-containing bags provided by the volunteers can qualify as citizen science, although the judge did not explicitly label them as such. The plaintiffs also engaged experts who intervened in the litigation as qualified expert witnesses for their professional background. However, no expert testimony was needed to lay a foundation for admission of the public evidence. The expert testimony was instead elicited to show that the plastics were not legacy plastics, i.e., they were not plastics discharged years ago that had somehow resurfaced.

Remarkably, neither the court nor the company’s attorneys significantly challenged the data gathered by the citizens. The evidence at hand required data collection based on simple, direct observations or collection of plastic objects by hand, i.e., not involving further analyses. This can be seen as a form of citizen science as it involved gathering information on environmental conditions in an organized manner. The protocols followed were explained to us by one of the plaintiffs. First, the volunteers learned how to identify plastic waste, to distinguish it from other material found in the water, and to document it. When the plastic objects, photos, or videos were taken, the person collecting the data (or an accompanying person) also recorded the date and location, and sometimes the wind conditions. The plaintiffs kept record of what they found and regularly submitted the new material to the attorneys. Over time, they set up a chain of custody, defining from whom the piece of evidence was collected, who stored it, and to whom it was delivered. This accurate, structured plan of data collection was key to the admission and credibility of the public evidence.

The data collection was relatively simple and no particular training was required for the participants. Accordingly, it was not necessary to provide any evidence on training, and the material presented to the court was just “evidence of a fact, not part of a scientific study” (Amy Johnson, personal communication). There was also no sampling as such (although the text of the ruling uses the terms “plastic samples,” e.g., Formosa ruling, VI, p. 8). This is because the term implies some scientific method to collect a statistically representative sample of a larger population, whereas in this case, the citizens were simply documenting hard, factual evidence, i.e., the presence of plastics in the water. As Johnson stressed, there was no need for scientific samples: the plastic instances documented were just “an example of the big picture;” they did not have to be “representative of a concentration, but proof of a base level violated” (Johnson, personal communication). The volunteers gathered presence data, or evidence of the fact that there were plastics in the water, rather than proof of quantity. The fact that a normal observer could see plastic in water was enough to satisfy the burden of proof that plaintiffs had. “If someone could easily see the plastics, we argued that this meant that more than a trace amount had been discharged,” noted Johnson. “The only skill was having a good eye and the time to look for the plastic,” affirmed one plaintiff (Plaintiff, personal communication). Although the observations did not require any specialization, over time, the citizens (one former shrimper, one former Formosa employee, and other local volunteers, who already had a good knowledge of the local situation) learned how wind and current could affect where the plastics would likely be found, and they refined their data collection.

Conceivably, more complex forms of citizen science, e.g., requiring detailed quantitative evidence to quantify the damage or prove causation, could have been more easily challenged in court—eventually under the Daubert standard. In fact, in the case at hand, the legal standard to be applied was a relatively simple. The amount and soundness of the submitted evidence was just too strong to be challenged. “How do you challenge a photo of plastics? It is hard evidence of those plastics,” said the attorney (Johnson, personal communication). “[Formosa] did try to claim that some plastics might have come from a spill on a roadside or might have been plastics spilled on railroad tracks, but they did not have hard evidence of this or of how they would have been so close to the discharge outfalls” (Johnson, personal communication). This consideration suggests that the applicability of this case to more sophisticated types of public evidence may be limited.

The settlement and the status of the case

The declaratory judgment issued responded to the plaintiffs’ claims. The court both considered past violations (monetary relief) and the risk of future violations (injunction). In the settlement between the parties that followed the ruling, Formosa agreed to monetary relief amounting to 50 million US dollars in mitigation payments. The parties agreed to a settlement and negotiated a consent decree, which they then presented to the court. The court endorsed this settlement by approving the consent decree and remedy. Thus, the ruling is now definitive, i.e., it cannot be appealed. The sum agreed will be paid over five years into a fund supporting projects that will help revitalize the local marine resources, public beaches, and waterways damaged by the company’s operations (Impact Fund News 2019, also containing a detailed description of the fund allocation).

The plaintiffs informed us that they have now organized⁹ to implement the consent decree and to ensure that Formosa duly executes it. They thus changed their role and are acting as a watchdog in the reparation process. All plaintiff remediation monitoring activities were available to us, through attorney Johnson, in an appellate court exhibit. Furthermore, plantiffs are pushing for legal interventions to reach a zero-discharge plastic production (Hansen and Reddy 2020).

The Formosa case also inspired other (ongoing) citizen suits by environmental organizations (for example, Charleston Waterkeeper v. Frontier Logistics LP in South Carolina) that are forcing courts to define exactly what certain qualitative standards entail, and are pushing state agency enforcement. The case is also triggering other actions against Formosa subsidiaries, for example, in Louisiana where local residents are contesting the issuing of a permit.¹⁰ Conceivably, the case will affect all dischargers in Texas that produce or handle plastics. Especially in the plastics industry, the case is triggering a stronger regulatory response, and permits are already being rewritten to include an explicit zero-discharge limit (Hansen and Reddy 2020). Numerous grassroots organizations are demanding “no more nurdles” (No More Nurdles, 2021; Moore-Eissenberg 2019) in the production of plastics.¹¹ For example, the Nurdle Patrol is an organization launched in 2018 for collecting plastic pellets in the Gulf of Mexico and is creating a national database of plastic discharges, which has potential for citizen-initiated lawsuits.¹²

Other key elements to success

The plaintiffs’ standing in the litigation was fundamental, i.e., they had an interest in the case that allowed them to submit the lawsuit in the first place. They managed to demonstrate (easily) that the defendant’s discharge contributed to pollution impairing the plaintiffs’ use of the water body, in line with existing case law (Texans United for a Safe Economy Education Fund v. Crown Central Petroleum Corp.). The court found that the damage was proven and evident, taking into account much broader concerns than those strictly limited to the plaintiffs’ human rights. The court did not link the environmental harms to the right to health, the right to property, or to family life of the applicants, as is usually done in human rights–based environmental cases. Instead, it bypassed this anthropocentric approach by recognizing the recreational and aesthetic value of the environment as such, and assessing if and to what extent this value was damaged.

Interestingly, the plaintiffs also managed to demonstrate violation of their right to access environmental information. Even if it did not use a rights-based discourse, the court noted that “the plaintiffs have also suffered injury, in fact, because they were unable to obtain information that Formosa was obligated to publicly disclose in a timely fashion,” which is in line with a solid case law (Center for Biological Diversity, Inc. v. BP; Sierra Club, Inc. v. Tyson Foods, Inc.). Both federal and state statutes (33 USC. §1318(b) – Records and reports; inspections; Texas Water Code §26.0151) require reports of permit violations by the permittee to be publicly available. In this regard, according to the judge, “Formosa totally failed and refused to comply with a known duty” (Formosa ruling, XI, p. 20). See Appendix 2: “Focus on Formosa’s obligations as documented in the ruling,” for an overview of the key duties of the company.

Other winning factors of the case seem to be the presence of a dedicated champion, i.e., a local resident, plaintiff, and former shrimper, who took on the battle against Formosa, and who managed to attract people’s attention and support. The open-minded attitude of the court was also indicated to us as an important element. And finally, one of the plaintiffs told us that she considers it a key success factor that they could get free legal support of high quality from the Texas RioGrande Legal Aid, a nonprofit providing free civil legal services to low-income persons. Indeed, Texas RioGrande Legal Aid not only provided free legal aid – offering to the plaintiffs a talented team of experienced lawyers – but also financed expert witnesses. These factors clearly contributed to the success of the case.

Attracting media attention

Our review of a number of (online) newspaper articles demonstrates a growing attention to cases such as Formosa (Ahmed 2019), and their implications for pushing the industry and the regulators towards a zero-discharge plastic production (Hansen and Reddy 2020; Sullivan 2020). We could not find media outlets speaking in support of Formosa. One plaintiff told us that Formosa mostly abstained from comments. On the basis of the media reactions analyzed, we conclude that media coverage clearly emphasized the citizen science nature of the evidence (which the court did not).

The Texas Observer, for example, reports a remarkable quote from attorney Johnson: “This is an instance where citizens collected evidence of violation of the Clean Water Act, and what’s so powerful is that that was used to prove these thousands of violations” (Ahmed 2019). Other (online) media outlets (such Freeman 2019) stressed the groundbreaking potential of the ruling, and the great victory for the concerned citizens in terms of achieving social and environmental justice (Impact Fund News 2019).

Johnson also shared with us a rich list of media that covered the case before the 2019 ruling. Among them is the piece featured on Plastics Today with the telling heading, “Formosa Plastics Sued for ‘Significant, Chronic and Ongoing’ Violations of Clean Water Act at Texas plant,” (Plastics Today 2017) and The Guardian piece entitled “World’s Largest Plastics Plant Rings Alarm Bells on Texas Coast.” (Milman 2017). A full list of media coverage of the case can be provided upon request. Such a list was filed with the US Court of Appeals for the Fifth Circuit, and the entire filing is a matter of public record.

The overall situation suggests that media coverage was crucial to the plaintiffs’ strategy. The San Antonio Bay Estuarine Waterkeeper managed to attract substantial media attention before, during, and after the ruling. This tactic seems promising for both providing larger social support to ongoing actions and mobilizing communities for future actions.