KY Supreme Court allows NGOs to participate in settlement discussion on Clean Water Violations

May 2, 2012-Editorial in the Lexington Herald Leader

Mountain Top Removal mining destroys streams and rivers as tops of mountains are disposed into them in order to access a seam of coal. The resulting water violations have been loosely dealt with under numerous Kentucky administrations. The Supreme Court ruling allows the organization which complained about the violations to participate in the settlement which they said was too small to have an impact. Photo © 2010 near Pikeville, KY by John Blair.

In a unanimous rebuff of the Beshear administration’s environmental cabinet, the Kentucky Supreme Court has upheld citizens’ rights to be heard in clean water enforcement actions.

“Federal law encourages the states to permit interested citizens to intervene and be heard in state court enforcement proceedings.” Justice Lisabeth Hughes Abramson wrote for the seven justices.

The unanimous opinion also cites “Congress’s express declaration that public participation in efforts to control water pollution is a priority of the Clean Water Act.”

Yet, the Beshear administration, which is responsible for enforcing the Clean Water Act in Kentucky, had insisted it would be “an unwarranted burden” to allow interested citizens groups and individuals to object to a settlement between the Cabinet for Energy and Environment and two of the state’s largest coal companies.

The administration tried to exclude the citizens groups even though they uncovered the massive violations and filed a notice to sue, which, under federal law, triggered the state investigation that led to the proposed settlement.

Franklin Circuit Judge Phillip Shepherd issued “a carefully circumscribed order” granting Kentuckians for the Commonwealth, Appalachian Voices, Kentucky Riverkeeper, Waterkeeper Alliance and four individuals an opportunity to voice their objections to the settlement proposed by the cabinet and Frasure Creek Mining and International Coal Group.

The citizens contended the $660,000 in fines agreed to by the cabinet were inadequate for years of inaccurate water monitoring by the companies.

Altogether, 2,765 violations by 103 mines were acknowledged in the settlement.

The cabinet’s attempt to exclude the citizens groups was defeated in the Court of Appeals and now the Supreme Court.

This has been one of the most shameful chapters in the long and shameful history of state government’s cozy relationship with the coal industry.

First, there were the revelations that state regulators had been asleep at the wheel for years and that the state had no way of knowing whether the coal companies had violated their water pollution permits.

Then the administration tried to make the embarrassment go away with a settlement in which the groups that discovered the state’s massive dereliction of duty could not even be heard.

It’s what we’ve come to expect from an administration and an agency culture that seem to care more about serving the coal industry than serving the public.

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