TX Sues Dow For "Habitual Non-Compliance"; Spoiler - It's A Way For The Company To Avoid A Far Harsher Citizen Lawsuit

The Texas Attorney General’s office filed a lawsuit Friday afternoon against Dow Chemical Co., North America’s largest chemical manufacturer, describing hundreds of water pollution violations from its industrial complex on the rural Gulf Coast in Seadrift. While the state’s 46-page lawsuit followed a 60-day notice of intent to sue filed in December by a local environmental activist, the lawsuit could actually shield Dow and two other companies by superseding litigation by the citizen group seeking tougher cleanup provisions under the Clean Water Act.

The state’s lawsuit said Dow, its subsidiary Union Carbide and the Brazilian petrochemical manufacturer Braskem “have been in habitual non-compliance” with pollution permits at their chemical manufacturing complex in Seadrift, 80 miles northeast of Corpus Christi. The companies “have violated, and continue to violate, the Texas Water Code, the Texas Solid Waste Disposal Act, and regulations and permits” since at least 2020 through hundreds of described violations including unauthorized discharge of waste, unauthorized disposal of industrial solid waste and failure to report violations, the lawsuit says.

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Diane Wilson, the activist from Seadrift who filed the notice of intent to sue Dow for water pollution on Dec.17, called the state’s lawsuit “a sweetheart deal with industry.” She said it was “much weaker than our intended Clean Water suit both on compliance and finding a solution to the decades of plastic pollution pouring from that facility.” Members of Wilson’s nonprofit, San Antonio Bay Estuarine Waterkeeper, spent the past year collecting evidence of Dow’s chronic plastic pollution into local waterways.“It’s just everywhere you look,” Wilson, 78, said in early February as she ducked through brush on the banks of the Victoria Barge Canal, pointing out the millions of plastic pellets that had mixed with the sediment over decades. “It is unbelievable.”

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“If the state files its own lawsuit, the citizens are legally precluded from filing their own, unless the state fails to diligently prosecute that lawsuit,” said Josh Kratka, managing attorney at the National Environmental Law Center in Washington, D.C. It’s a common tactic used by Texas and other states “to prevent citizens from doing their own citizen lawsuits,” he said.
For example, he represented a community group in Port Arthur in a 60-day notice of intent to sue a nearby Valero refinery in 2019. Fifty-eight days later, Texas filed its own lawsuit that was “almost a word-for-word copy of our notice letter.” The case has since in court, he said. (Ed. - sic). In some of Kratka’s cases, he said, he learned during discovery that companies approached state authorities and requested they file a complaint that would preclude citizen lawsuits. He’s even seen companies and regulators negotiating the content of a prospective lawsuit, he said.

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https://insideclimatenews.org/news/17022026/texas-dow-chemical-complex-wastewater-rules-lawsuit/