Yesterday the Kentucky State Supreme Court ruled in favor of Appalachian Voices and our partners KFTC, Waterkeeper and the Kentucky Riverkeeper. The ruling upheld lower court rulings allowing us to intervene in a lawsuit between Frasure Creek Mining and the Kentucky Energy and Environment Cabinet.
That case was brought about in October 2010 when we filed a Notice of Intent to Sue against Frasure Creek Mining, and International Coal Group (Now an Arch Coal subsidiary) for 20,000 violations of the Clean Water Act with potential penalties of over $700 million. The bulk of these violations relate to false and potentially fraudulent reporting of water pollution levels. Under the Clean Water Act companies have limits on the amount of pollution they are allowed to release, and they are required to monitor their pollution to make sure they meet these limits.
In an effort to keep us from being able to bring a case in federal court, the coal companies reached settlements with the Kentucky Energy and Environment Cabinet, but those settlements needed to be approved by a state court. The settlements amounted to little more than a slap on the wrist; they have minimal fines and no meaningful measures to ensure that the same problems will not continue. Through the citizen suit provision of the Clean Water Act, citizen are allowed to participate in legal actions to protect public waters. Using this provision, we intervened in the state court case in order to argue that the state’s settlement was not fair, adequate and in the public interest.
Yesterday’s Supreme Court decision upheld the lower court’s decision to allow us to intervene in that case, and provides clarification for citizens wishing to intervene in future Clean Water Act enforcement cases in Kentucky.
In September of 2011 a three day trial, for the case in which we intervened, was held to determine whether or not the settlement should be entered. The court has yet to rule on that matter, and ordered all the parties to mediation. Settlement talks are still ongoing.
The Kentucky Energy and Environment Cabinet’s role in this case has been an interesting one. They opposed our intervention (contrary to federal law), and they joined Frasure Creek in appealing the decision to allow us to intervene. It seems odd that an agency whose duty is to protect citizens from pollution has been spending its limited resources trying to prevent citizens from intervening to protect streams they use and enjoy. Yesterday’s Ruling even stated, “an interested citizen’s not being permitted to so intervene can be a factor casting doubt upon the ‘diligence’ of the state’s enforcement efforts.”
We hope that this case will be a step towards cooperation between the Cabinet, Kentucky coal companies and citizens, so Kentucky can have coal jobs and clean, safe water.