Activists Can Use Rare Legal Defense In NJ Trespassing Case, Judge Rules

LIVINGSTON, NJ — Civil disobedience was “necessary” in the name of the greater good. That’s the argument from four environmental activists, who have been granted permission to use an unusual legal defense as they fight charges of trespassing in Livingston.

Earlier this week, a Superior Court judge ruled that a group of activists will be allowed to pursue a necessity and justification defense in their case, which is playing out in Livingston Municipal Court (view the court order here, or read it below).

The defiant trespassing charges date back to August 2024, when nearly 100 people held a demonstration outside the Formosa USA headquarters on Peach Tree Hill Road in Livingston. Activists accused the international petrochemical manufacturer of violating environmental laws and polluting communities overseas, as well as in Texas and Louisiana, where it also has facilities.

Most of the protesters voluntarily left the property at the request of local police, but six people were arrested after refusing to leave.

Two of the protesters pleaded guilty to the trespassing charge and received fines. But the remaining four took their case to trial, pleading not guilty at an initial hearing in Livingston Municipal Court. Read More: Activists Arrested In Livingston At Formosa Protest Plead Not Guilty

Last September, the activists – now calling themselves the “Formosa Four” – held an online media briefing about their legal strategy and plans to fight the charges (view it online here).

A second pretrial hearing took place on Sept. 26. During their follow-up court appearance, a municipal judge denied the activists’ request to admit expert testimony in support of a “necessity defense” – a legal tactic that attempts to prove that a person’s illegal conduct was the lesser of two evils.

Livingston’s municipal judge didn’t agree with their plan, telling the defendants that “this is not going to be a political court for some kind of environmental agenda.”

• See Related: Civil Disobedience At Livingston Protest Was ‘Necessary,’ Activists Argue

The Formosa Four’s attorney appealed the ruling to the New Jersey Superior Court Law Division, temporarily putting the trial on hold.

On Monday, the activists got some good news: they can proceed with their defense.

In his written opinion, New Jersey Superior Court Judge Arthur Batista said that the case is unique because a federal court had previously ruled that one of the protesters, Diane Wilson, suffered economic harm from Formosa.

In 2019, the company agreed to pay $50 million to settle a lawsuit in which a judge ruled the company illegally dumped billions of plastic pellets and other pollutants into Lavaca Bay and other waterways in the Texas region.

"The appellants contend that the very same injurious actions for which the corporation was previously found liable continue unabated and persist, harming Wilson and others," the judge wrote, adding that the August demonstration in Livingston was "not simply a run-of-the-mill political protest."

He continued:

"The appellants allege that the only way to avoid the harm is by committing a criminal act and that the harm threatened is so great that, as a matter of public policy, it can be said to outweigh the values protected by the defiant trespass law. The appellants assert that they have already taken all lawful measures to stop Formosa from continuing its unlawful discharge into the environment. Wilson successfully obtained a monumental monetary award that was described as 'not only the largest citizen suit settlement in U.S. history, but the largest by far – five times larger than the next highest clean water settlement and tens of millions of dollars more than the next highest clean air settlement.' Wilson also obtained an injunction against Formosa and prospective sanctions to insure future compliance and relief. Appellants assert that none of this has stopped Formosa from subsequently violating the federal court's order and the integrated settlement decree 716 times, resulting in supplementary penalties totaling $24,392,072 through December 20, 2024."

The judge added:

"The appellants further maintain that the Texas Commission on Environmental Quality has failed to prevent Formosa's violative and harmful conduct from continuing. They argue that they have exhausted all legal channels for the enforcement of environmental laws by a habitual bad actor and that even the considerable relief and protections ordered in the federal court have proven futile. They claim that the only way to avoid the continued injury and harm caused by Formosa is by committing their acts of protest and defiant trespass as alleged against them. Without offering any opinion whatsoever on the ultimate merits of this matter, this court finds for all the reasons noted herein, that appellants have met their prima facie burden to an extent sufficient to afford them the opportunity to raise the affirmative defense of necessity - justification to a fact finder for the ultimate determination as to whether the appellants are guilty or not guilty of the charges against them."

The activists will now be able to call on the testimony of one expert to argue their case. The state will also be limited to a single expert’s testimony.

The case was remanded to the Livingston Municipal Court for trial. A date has not been set.

According to their lawyer, the decision sets precedent: it’s the first time a New Jersey court has recognized the legal tactic in connection with a protest.

“This ruling acknowledges that defiant trespass, when used as a form of civil disobedience to prevent greater harm, can be justified under the law,” Bennet Zurofsky said.

Wilson, 76, who received a Goldman Environmental Prize for her activism involving Formosa, called this week’s ruling a “huge win” for herself and the other members of the Formosa Four.

“I’ve spent thirty-six years trying to hold Formosa accountable, but they keep polluting, and expanding, and treating the fines as just another cost of doing business,” Wilson alleged.

“When the system fails to protect people and the environment – and our communities – sometimes you have to take more drastic measures,” she said.

FORMOSA: ‘ENVIRONMENTALLY RESPONSIBLE AND IN COMPLIANCE’

Company spokespeople have pointed out that Formosa Plastics Corporation USA is a legally distinct entity from Formosa Plastics Group, which is headquartered in Taiwan. The Livingston office focuses on its operations in Baton Rouge, Louisiana and Point Comfort, Texas.

The plastics manufacturing company employs hundreds of workers at their Livingston location, who provide the majority of its “business support operations” such as management, marketing, sales, legal and logistics.

After the August 2024 protest, Formosa USA spokespeople told Patch that the company is using programs to prevent resin loss by implementing stringent containment measures throughout its facilities. These programs focus on “minimizing pellet, flake, and powder loss at every stage of production and transportation.”

“In Point Comfort, where our only pellet production operations are located, we've implemented state-of-the-art technologies to control the release of plastics into the environment,” spokespeople continued, sharing a video with more details (view it online here).

“We remain committed to conducting our business in a manner that is environmentally responsible and in compliance with all applicable U.S. regulations,” spokespeople concluded. “We are open to engaging in dialogue with concerned parties about our practices here in the United States and welcome the opportunity for constructive conversations.”

On its website, Formosa Plastics says that “improved efficiency” has allowed it to reduce emissions by 50 percent over 10 years.

“Formosa seeks to reduce the impact of our operations by constantly improving and reducing water use, energy, emissions and waste,” the company’s website states. “Goals are set every year and all facilities track their progress in detail. Independent organizations like BSI audit our facilities to the ISO 14001 Environmental Management System Standard every six months and conduct a full recertification every two years.”

The solar power project at Formosa Plastics headquarters in Livingston has produced more than 4.60GWh of power to date, according to the company’s website.

“Beyond 2022, Formosa Plastics Corporation U.S.A. has plans across our facilities to convert over 100 vehicles to EV/hybrid, and provide more than 100 charging stations,” the company says.

Electric vehicle charging stations are already available for use by associates at the headquarters in Livingston, the company adds.

ACTIVISTS: 'THIS BEHAVIOR IS UNACCEPTABLE'

Despite the company’s assurances, activists in New Jersey continue to accuse Formosa of thumbing its nose at the people who live in the communities it operates in. Ongoing protests against the company have also been taking place in Louisiana and Texas.

A 2021 report from the Center for International Environmental Law (CIEL), the Center for Biological Diversity, and Earthworks claimed that Formosa Plastics Group’s six-decade track record is “riddled with environmental, health, safety and labor violations, including devastating accidents and persistent pollution in multiple countries.”

“From Point Comfort, Texas, to Ha Tinh, Vietnam; Illiopolis, Illinois; and Yunlin County, Taiwan, the Formosa Plastics Group has left a global track record that demonstrates how the rights and safety of local communities and workers, as well as the environment and public health, have become casualties of corporate profit,” the report alleged.

In 2021, Formosa Plastics agreed to pay $2.85 million in civil penalties and to improve its risk management program to resolve alleged violations of the Chemical Accident Prevention Provisions of the Clean Air Act at its petrochemical manufacturing plant in Point Comfort, Texas.

In 2022, advocacy groups persuaded Louisiana’s 19th Judicial District Court to cancel 14 air pollution permits granted by the state's Department of Environmental Quality, which would have allowed Formosa Plastics to build the largest plastics plant in the world.

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