Emerging Issues, Litigation and Dispute Resolution

PELC Update: Pace Clinic Intern Argues For Citizen Intervention in Kentucky Enforcement Case

by Daniel E. Estrin
Supervising Attorney, Pace Environmental Litigation Clinic, Inc.
Adjunct Professor of Law, Pace Law School

I previously posted (here and here) about our cases against the two largest mountaintop removal coal companies operating in Kentucky.  As a refresher, our clients discovered last year that International Coal Group (ICG) and Frasure Creek Mining had falsified their discharge monitoring reports (DMRs) to state agencies by falsely repeating identical and inaccurate data in successive reporting periods over a period of at least two years.  Review of the DMRs also showed numerous violations of pollutant discharge limits set forth in the coal companies’ NPDES permits.  PELC served notices of intent to sue these coal companies in October 2010, in which we alleged over 20,000 Clean Water Act violations.  Upon a finding of liability for all of these violations, the maximum civil penalty (payable to the U.S. Treasury) would be approximately $740 million.

However, two days before the statutory 60-day notice period elapsed, the State of Kentucky announced that it had commenced enforcement actions in state court, and simultaneously submitted proposed consent judgments to the court for approval.  If the State’s enforcement actions satisfy the “diligent prosecution” standard under Section 505(b) of the Clean Water Act (33 U.S.C. § 1365), they could preempt our clients from commencing their intended citizen suits.  After a careful review of the proposed settlements, our clients filed objections in state court, arguing essentially that the settlements were based upon fictional and utterly irrational conclusions (e.g., that the repeated false reports were no more than “transcription errors”); that they amounted to no more than a “slap on the wrist” (far less than one percent of the maximum allowable penalty under the Clean Water Act) for very serious violations of state and federal law; and that they did not contain adequate injunctive relief to ensure that the false reporting (and the State’s abysmal failure to detect it) would not recur in the future.  After filing these objections, we filed a motion to intervene in the State’s enforcement actions.  Both the State of Kentucky and the target coal companies filed papers opposing our clients’ intervention.

Yesterday, Peter Harrison, a Pace Law 3L and one of PELC’s legal interns, appeared with our local counsel before Judge Phillip Shepherd in Frankfort, Kentucky Circuit Court to argue in support of our clients’ motion to intervene.  Judge Shepherd devoted over two hours of the court’s time to the hearing.  Peter handled the concurrent jurisdiction portion of the argument, i.e., whether the state courts have concurrent jurisdiction (with the federal district courts) over Clean Water Act citizen suits.  Regardless of the ultimate outcome (the Court reserved decision on the motion to intervene but promised a “prompt” decision), the Clinic congratulates Peter on a fantastic job, and for what we know will be the first of many first-rate appearances he will make before tribunals around the United States!

Below are links to a few independent news stories and blogs about this ongoing saga.  Peter Harrison is actually quoted in the Ashland Daily Independent article, although he is incorrectly referred to as an “attorney.”  Not quite yet, Pete, but we certainly understand how the reporter could make that mistake!

Huffington Post

Lexington Herald-Leader

Louisville Courier-Journal

Ashland Daily Independent

2 Comments

  1. Paul Hirsch

    Has the court decided “whether the state courts have concurrent jurisdiction (with the federal district courts) over Clean Water Act citizen suits”? I see that Judge Shepard reserved decision on this issue in his 2/11/11, order, but wonder is he has finally reached it. (Sounds like he was leaning toward “yes.”)

    • Prof. Estrin, Daniel E.

      Mr. Hirsch: Thank you for your interest in this case. The court has not yet decided the concurrent jurisdiction issue. The court held an evidentiary hearing in late August concerning whether the proposed consent judgments submitted for judicial approval by the Cabinet and the coal companies are fair, reasonable, adequate and in the public interest (“FRAPI”), and has now reserved decision on that question. Pursuant to the 2/11/11 order, the court will not take up the question of concurrent jurisdiction until after it rules on the FRAPI question. Best, Daniel E. Estrin

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