by Daniel E. Estrin
Supervising Attorney, Pace Environmental Litigation Clinic, Inc.
Adjunct Professor of Law, Pace Law School
I have blogged over the past few months about a case the Pace Environmental Litigation Clinic and our co-counsel have attempted to bring against the two largest mountaintop removal coal companies operating in Kentucky. Most recently, I posted about our legal intern Peter Harrison’s trip to Kentucky to participate in the oral argument to a Kentucky state court judge in support of our motion to intervene in the State’s enforcement case against these same companies.
As a refresher, 58 days into the statutory 60-day notice period, the State brought its own purported enforcement action in a transparent effort to preempt the citizen suit we intended to commence on behalf of our clients. On the very same day that it filed its complaints against the coal company defendants, the State also submitted proposed consent judgments (settlement agreements that require court approval) with those companies to be approved by the court. We and our co-counsel moved to intervene in those cases, arguing that for a number a reasons the entry of the proposed consent judgments would not be fair, reasonable or consistent with the public interest.
I am pleased to report that on Friday, February 11, Judge Phillip Shepherd issued an Order granting our clients’ motion to intervene. A copy of Judge Shepherd’s Order can be viewed here.
Judge Shepherd summed up the key reasons for granting the intervention in his Order, stating,
The Cabinet, by its own admission, has ignored these admitted violations for years. The citizens who brought these violations to light through their own efforts have the legal right to be heard when the Cabinet seeks judicial approval of a resolution of the environmental violations that were exposed through the efforts of these citizens. In these circumstances, it would be an abuse of discretion to deny those citizens and environmental groups the right to participate in this action, and to test whether the proposed consent decree is ‘fair, adequate, and reasonable, as well as consistent with the public interest.’
Judge Shepherd’s Order also provided the Clinic’s clients with an opportunity to conduct discovery from both the State and the coal companies on these issues, including an opportunity to demand documents, serve interrogatories and conduct depositions. One of the most significant areas of disagreement between our clients and the State concerns the coal companies’ level of knowledge and intent with respect to their repeated submission of false data on their pollutant discharge monitoring reports. The State has taken the position in its submissions to the court that the coal companies’ false and inaccurate submissions over a period of years were no more than mistakes or clerical errors. The discovery that the court has ordered should allow the Clinic’s clients to shine a bright light on the facts concerning the false submissions by the coal companies, including upon what facts the State based its determination that the false submissions by the coal companies were not intentional.
Below are links to a few news stories, blogs and press releases about this ongoing saga:
Kentuckians for the Commonwealth (under heading “Background Materials for the ICG / Frasure Creek case”)
Pace Law School (press release)
Louisville Courier-Journal (quoting PELC legal intern Peter Harrison)
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