Finding the correct location for your industrial facility, such as a petrochemical plant or a landfill, requires balancing multiple considerations, including access to transportation routes for raw materials or goods, the cost of the property, and a host of other factors or criteria. However, state and local governments in Louisiana have created their own siting requirements that extend well beyond normal economic considerations.
John B. King, Partner, Breazeale, Sachse & Wilson LLP
Louisiana's environmental regulatory agency acts under a state constitutional mandate as the public trustee of the environment. As such, major permitting decisions affecting the environment require, among other things, that the environmental costs and benefits be balanced along with economic, social and other factors. In conducting this balancing process, one important question that must be addressed is whether there are alternative sites (that is, sites other than the site chosen) that offer more protection to the environment than the proposed site without unduly curtailing nonenvironmental benefits.
In practice, the applicant should conduct an "alternative sites" analysis in which environmental and business factors or criteria are established, against which prospective sites will be judged. For example, environmental criteria could include such items as whether the prospective site is located in a nonattainment area and the amount of wetlands on the property, while business criteria could include whether there is adequate access to pipelines and electric transmission lines or the size of the prospective site. It is vitally important that ample environmental considerations are included in the analysis to ensure environmental protection is adequately considered in site selection.
Once the criteria are established, each site is evaluated for each criterion. Case law suggests that a numerical ranking of sites is better than a mere pass/fail approach. Regardless, it is important that each site be evaluated and the reasons and rationale for choosing or rejecting sites be documented. As this is a balancing process, there is no "correct" answer. Instead, the analysis must fully support the decision that the chosen site is the best among all of the alternative sites.
Why is this process so important? If a proper analysis is not done or not fully documented, the permit decision is vulnerable to attack by opponents of the project. Indeed, permits have been overturned and projects stalled or abandoned because a full alternative site analysis was not done and/or included in the administrative record.
Increasingly, the state is not the only player in siting decisions. Many local governments have enacted some form of a land use approval process so that they also have a decision-making role in whether a facility is located or sited within that local jurisdiction. For example, one parish enacted an ordinance mandating that any land use requiring a state or federal permit receive approval by the local planning commission. The ordinance requires a detailed application, public hearings and the consideration of several factors for approval or denial of the project, such as the environmental impacts of the proposed use. The commission may even impose conditions on the use if it feels they are necessary. While adding a local approval process adds complexity to siting decisions, these ordinances essentially seek to ensure local citizens are not unduly burdened by a proposed project.
In short, the siting decision-making pro process in Louisiana must include factors or criteria beyond normal economic considerations. Environmental protection must be considered. Without it, projects may never receive final approval to move forward.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www.bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.
