Politics & Government

Ky. Supreme Court finds in favor of environmentalists

Environmental groups and private citizens may intervene in a lawsuit to object to a settle in the case, brought by Kentucky against a mining company, the Kentucky Supreme Court ruled Thursday.

The high court unanimously found that Judge Phillip Shepherd did not err in allowing Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, Waterkeeper Alliance and three citizens to take part in a suit brought by the Kentucky Energy and Environment Cabinet against Frasure Creek Mining.

The groups sought to intervene to object to a settlement between the state and Frasure Creek, which operates coal mines in Pike County, over the discharge of pollutants into the Kentucky, Big Sandy and Licking rivers and their tributaries.

Justice Lisabeth Hughes Abramson concluded that Shepherd had the authority to allow the intervention.

"Clearly the regulations contemplate citizen intervention in an agency's state-court enforcement action, such as this one, and to that extent these regulations would be meaningless if such intervention were pre-empted," Abramson wrote.

She wrote that if the state or Frasure Creek Mining were unhappy with the final settlement after objections were heard, they could avail themselves of the appeals courts.

"Merely adding a party to the suit, after all, generally at least, will not deprive any other party of the ability to assert and vindicate his or her rights in the ordinary course of trial and appeal," Abramson wrote.

The issue arose in December 2010, when Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, Waterkeeper Alliance and three citizens threatened to sue Frasure Creek and ICG Coal for violations of the federal Clean Water Act. The state Energy and Environment Cabinet went to Franklin Circuit Court in December seeking to settle the issue.

But the environmental groups asked to intervene, and Shepherd ordered the cabinet and two coal companies to submit to discovery and depositions by the environmentalists.

The cabinet and Frasure Creek asked the Court of Appeals to order Shepherd to reverse his order.

In October 2010, the environmentalists announced their intent to sue Frasure Creek and ICG for what they said were 20,000 violations that could result in as much as $740 million in fines.

They also alleged the cabinet looked the other way rather than adequately monitoring the discharges into streams. After the cabinet investigated and found 2,700 violations, it and the coal companies submitted a consent judgment that fined each company more than $300,000. That prompted the environmentalists to ask Shepherd not to approve the settlement and allow them to intervene, arguing the cabinet was not representing the public's interest in protecting the safety and cleanliness of Kentucky streams and drinking water.

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