Coal Ash - Elephant in the Courtroom

Coal Ash - Elephant in the Courtroom

By: Andrew Skomorowsky

Just as cigarette ash is what remains after a cigarette is burned, coal ash is the residue from the burning of coal. Coal, it will surprise no Kentucky readers to learn, is used in the production of electrical energy. Coal ash is toxic – it contains arsenic, boron, lead and mercury – all known carcinogens and capable of causing organ damage in humans.[1] A recently published article in The New York Times reports that approximately 110 million tons (2 x 1011 pounds) of coal ash is produced each year. 

The politics of energy production notwithstanding, Kentucky is very much involved in this problem. According to the Kentuckians for the Commonwealth (KFTC) website, Kentucky power plants generate 8.6 million tons of coal ash.[2]  Of that, KFTC, says, 4,800 tons are toxic metals.

To create a sense of the scale of the problem, consider the following: the website of the Louisville, Kentucky Zoo states that each of their two adult African elephants weighs approximately 5 tons.[3] Imagine the outcry if 960 dangerous elephants (combined, weighing in at approximately 4,800 tons) were roaming the Kentucky countryside, poisoning local water supplies.

Of course this is a ludicrous analogy, but the matter at its core is still valid. Elephants are dangerous, heavy animals.[4] Now, mentally construct an elephant made of toxic metals and drop it in the water supply.  If that seems too silly, imagine a pile of toxic metals the size and shape of an adult elephant. Now, do it 959 more times. This is what KFTC alleges occurs on a yearly basis.[5]

Whimsical pachyderm models aside, the potential for real harm to real people brought about legislation in the Sixth Circuit court. In Ky. Waterways All. v. Ky. Utils. Co., Plaintiffs contended that the Respondent was polluting groundwater, which then goes on to pollute a nearby lake.[6] (Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238 (6th Cir. Sep. 24, 2018)).

Plaintiffs’ argument was two-pronged; they argued first that the Respondent’s actions were in violation of the Clean Water Act (CWA). [7] The CWA is noted for its authority in the area of water pollution. The CWA is limited however, in that it does not “extend liability to pollution that reaches surface waters via groundwater.”[8] Because the Plaintiffs’ arguments included this vector for contamination, the CWA prong failed.[9]

The second argument proffered by the Plaintiffs was that the actions by the Respondent violated the Resource Conservation and Recovery Act (RCRA).[10] It is this prong that successfully earned the Appellate Court’s attention: “Top of FormBut RCRA does govern this conduct, and because the plaintiffs have met the statutory rigors needed to bring such a claim, the district court must hear it.”[11]

But initially, the RCRA argument met a strange fate in the District Court: while the initial lawsuit was being prepared, the Commonwealth of Kentucky’s Energy and Environment Cabinet entered into an agreement with the plant operator to mitigate the harm addressed by the lawsuit.[12] Aware of this agreement, the District Court determined that the Plaintiffs lacked standing with regard to their RCRA argument, specifically because the court could not redress a claim already being remedied by the Commonwealth.[13]

Accordingly, the Respondent filed for summary judgment for dismissal, which motion was granted.  The story does not end there.  An appeal was filed with the Sixth Circuit, and the Appellate court had a slightly different opinion.

The Appellate Court affirmed the dismissal of the CWA argument, agreeing with the District Court’s findings.[14] The RCRA argument got a second chance in the Appellate Court, however. On appeal the court held that while it was not unreasonable for the District Court to make the finding they did, that they were in error to do so.[15]

The Appellate Court held that there was no lack of standing in the District Court, and that the federal courts do in fact have jurisdiction in this case:

For the foregoing reasons, we AFFIRM the district court's dismissal of Plaintiffs' CWA suit. The CWA does not impose liability on surface water pollution that comes by way of groundwater. However, we REVERSE the district court's dismissal of Plaintiffs' RCRA claim. Plaintiffs have met the statutory requirements to bring that suit, and the district court must entertain it. The case is REMANDED for further proceedings on that claim.

Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238, at 34 (6th Cir. Sep. 24, 2018)

The dissent and concurrence in this case (by the same judge) would have the court go even further:

Because the majority's conclusion is contrary to the plain text and history of the CWA, I respectfully dissent from the majority's conclusion that Plaintiffs' CWA claim was properly dismissed. Meanwhile, I concur in the majority's determination that the district court erred by dismissing Plaintiffs' claim under the Resource Conservation and Recovery Act ("RCRA").

Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238, at 34 (6th Cir. Sep. 24, 2018)

From an environmentally-friendly perspective, both the majority opinion and this dissent and concurrence is a win-win (albeit in part nonbinding).  In an age of increasing concern for humanity’s impact on the environment, having even a minority of a panel of judges expressing well-founded concerns for the environmental impact of American industry is, not to put too fine a point on it, a breath of fresh air. At the same time, it is also, of course, only a drop in the bucket.

[1] https://www.nytimes.com/2018/09/21/us/coal-ash-spill-dam-breach.html

[2] http://kftc.org/campaigns/coal-ash

[3] https://louisvillezoo.org/africa/harry-frazier-family-elephant-encounter/caring-for-10000-pound-elephants/

[4] https://www.theguardian.com/environment/2017/mar/06/can-elephants-and-humans-live-together

[5] http://kftc.org/campaigns/coal-ash

[6] Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238 (6th Cir. Sep. 24, 2018)

[7] 33 U.S.C.S. § 1251 (LexisNexis, Lexis Advance through PL 115-253, approved 10/3/18)

[8] Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238, at 2-3

[9] Id.

[10] 42 U.S.C.S. § 6901 (LexisNexis, Lexis Advance through PL 115-253, approved 10/3/18)

[11] Ky. Waterways All. v. Ky. Utils. Co., at 3

[12] Id. at 14

[13] Id.

[14] Id. at 29-30

[15] Id. at 32