Thermaldyne is a new facility that reclaims oil from materials that are, in all but name, industrial hazardous waste. It applied to the Louisiana Department of Environmental Quality (LDEQ) for a permit to discharge the water that is leftover into the Intracoastal Canal, directly upstream of the intake for the drinking water of about 10,000 Iberville Parish residents. Its application did not identify any of the pollutants it would be discharging. Nevertheless, LDEQ deemed the application complete and drafted a permit for Thermaldyne. LDEQ published a notice that the public could comment on the draft permit, but in the notice, LDEQ failed to identify that the facility would be recycling hazardous materials. In fact, the only description of the facility was the phrase “under SIC code 2992”. This was a misleading description, as it applies to a facility that recycles purchased animal, plant, or mineral products, not to one that gets paid to take hazardous waste off of industry’s hands.
Waltzer Wiygul & Garside sued LDEQ on behalf of the Louisiana Environmental Action Network (LEAN), arguing that Thermaldyne is required by law to identify what pollutants it would discharge and that LDEQ is prohibited from drafting a permit without that critical information. LEAN also argued that the public notice was inadequate to inform the public about the hazards Thermaldyne’s operations pose. LDEQ argued that it could draft a permit with whatever information it considered sufficient and that the notice was fine because the public could dig into the file and figure out what Thermaldyne was going to do. The district court judge agreed with LEAN on both counts and called for the issuance of a “writ of mandamus” to require LDEQ to obtain the pollution information before drafting a permit and requiring it to issue a notice that contained enough basic information to actually notify the public about the nature of Thermaldyne’s operations. A writ of mandamus is what is known as an “extraordinary remedy.” It is one of the ways that the judicial branch protects the public from overreach by the executive branch, including agencies like LDEQ.
LDEQ appealed this ruling to the First Circuit Court of Appeals. The First Circuit agreed with LEAN and the district court judge. LDEQ is prohibited by law from drafting Thermaldyne’s permit without knowing what pollutants it will emit, and the notice was unlawfully inadequate. It is really just a common-sense ruling. LDEQ still refused to accept what four judges unanimously told it. Instead, it sought a “writ of certiorari” from the Louisiana Supreme Court. This writ is basically a request for the Supreme Court to reverse the Court of Appeals. Unlike the Court of Appeals, the Supreme Court is not required to hear every appeal that people bring to it. The Supreme Court only hears cases that it wants to, generally because it believes it needs to clear up some aspect of the law that has been incorrectly interpreted.
On February 10, 2020, the Supreme Court decided that it did not need to hear LDEQ’s appeal. In other words, the writ of mandamus is now final. In some respects this case is unremarkable. Thermaldyne has been operating without a water permit for months, instead just shipping wastewater for hazardous waste disposal (which should tell us a lot). Presumably, it will continue to do so. But in another respect, this is a significant win. No one has ever won a writ of mandamus to stop LDEQ from processing a permit because it lacked information. LDEQ expected to do whatever it felt like and permit a hazardous industrial facility with blinders on. We now have a precedent that LDEQ cannot act in this reckless way. Similarly, no one has ever obtained a writ of mandamus to compel that a public notice actually be informative. These are major advances in the people’s ability to know what industry and government are doing and to protect themselves when they need to.