Why Fight When You Can Hide?

Welcome to the biggest fight of 2011! In one corner, Appalachian Voices’ Water Watch team stands poised and ready to fight for clean water. In the other corner, Big Coal tries to defend their polluting ways. The next round of the showdown will begin on Thursday, January 27 at 1:30 pm in a Kentucky courtroom. Who will come out on top?

Read on to get the pre-match rundown.

In October, Appalachian Voices – in partnership with Kentuckians for the Commonwealth (KFTC), the Kentucky Riverkeeper, Waterkeeper Alliance and The Appalachian Citizens’ Law Center – filed a 60-day notice of intent to sue under the Clean Water Act. The contenders were two of the largest coal mining companies in Kentucky: Frasure Creek Mining and International Coal Group (ICG). We found dozens of instances where these companies were falsifying water quality monitoring data; in many cases they had simply cut and pasted all their data from one monitoring period to the next, amounting to 20,000 violations of the Clean Water Act.

At the end of the 60-day notice period, the coal companies chickened out. They refused to face us in federal court, opting instead to run to the State for cover. Rather than remaining a neutral referee in the fight – or staying out of it all together – the Kentucky Energy and Environment Cabinet is trying to shield the coal companies by cutting a deal in state court.

Instead of having a fair fight with the lawbreaking coal companies, we are now forced to contend with the Cabinet as well. If you’re a coal company, why stand and fight fairly when you can run a hide behind your protectors in state government?

In an attempt to preempt and prevent our lawsuit from going forward, the Kentucky Energy and Environment Cabinet proposed a settlement that gives the two coal companies a slap on the wrist fine of $660,000, which is less than 0.1% of the maximum penalty of $740 million that we sought! We have asked the court to allow us to intervene in the Cabinet’s case against the polluters. Although the companies and the Cabinet reached an agreement, the Judge did not immediately approve the settlement; he ordered the Cabinet to give the public the chance to comment on its adequacy. The Lexington Herald-Leader covered the state’s motion to intervene and printed some of the citizen comments.

And boy did the public have a lot to say. Thank you to 300 Kentuckians who sent individual letters or signed on to KFTC’s letter asking for full prosecution and greater protection for clean water.

Last week, we took some major swings at both our opponents. First we landed a solid jab during the public comment period. Appalachian Voices, Waterkeeper Alliance and Kentucky Riverkeeper submitted 35 pages of comments detailing even more evidence of intentional fraud, calling into question the Cabinet’s ridiculous assertion that the coal companies’ lawless acts were “transcription errors.” Kentuckians for the Commonwealth landed a left hook with the strong comments they submitted to Judge Shepherd. The Cabinet and coal companies were then peppered by repeated hits from the many citizens of Kentucky who wrote scathing rebukes about the insufficiency of the settlement agreements.

Finally, our outstanding legal team from Citizens’ Appalachian Law Center, Pace University, Capua Law Firm and Waterworth Law landed the heaviest blows. Federal law prohibits states from opposing citizen groups’ intervention. Our legal team provided the judge with a detailed argument explaining why the state legally cannot oppose us, and why they should act like a referee and get out of the way.

Now that the first round is complete, come see the rest of the match. Join us this Thursday at the Franklin Circuit Courthouse in Frankfort at 1:30. Judge Phillip Shepherd will decide whether the coal companies will be allowed to hide behind the Cabinet.

About Eric Chance

An expert kayaker with a serious passion for protecting our waterways, Eric served as our Water Quality Specialist for the Appalachian Water Watch team from 2010 to 2015.