Group's Legal Rights Under Attack by Power Company and State

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The opinions expressed in these articles and features are those of their author and do not necessarily reflect the positions of McANA or the opinion of its Directors or Officers.

Group's Legal Rights Under Attack by Power Company and State
by Andy Knott
[Air and Energy Policy Director, Hoosier Environmental Council]

One might wonder how a waste dump at a power plant on the Ohio River might affect the legal rights of groups like McANA all across Indiana.

Well, an appeal of that waste dump’s permit has now turned into a battle over whether any membership organization has the right to represent its members in legal matters.

It started when three groups, Hoosier Environmental Council (HEC), Citizens Action Coalition (CAC), and Save the Valley (STV) appealed a permit for the open dump at the Indiana Kentucky Electric Corporation’s (IKEC) Clifty Creek power plant in Madison.

IKEC uses the unlined dump to dispose of coal combustion wastes. The Indiana Department of Environmental Management (IDEM) had issued a renewal of the dump’s permit without a public hearing, and despite evidence that the landfill might be causing contamination problems.

HEC, CAC and STV thought that a more thorough review of the permit was prudent given that the landfill sits atop the aquifer that supplies drinking water to Madison and Hanover, and discharges to the Ohio River.

IKEC challenged the groups’ legal standing to represent its members in the Madison area, claiming that Indiana law does not allow groups to represent its members, and that the groups could only appeal the permit if they showed harm to property owned by the groups, or harm to employees of the groups. The right of groups to represent their members is known as “associational standing.”

At the administrative level, a judge sided with HEC, CAC and STV. The company, IKEC, then appealed that decision to the Marion County Environmental Court. Astonishingly, IDEM then joined the company in claiming that Indiana law does not allow for associational standing.

On November 2, Judge Michael Keele of the Environmental Court ruled in favor of IKEC and IDEM, agreeing that associational standing does not exist in Indiana law.

If it is allowed to stand, this ruling would have far-reaching effects. Members of citizen organizations know that there is strength in numbers. This attack on standing is an attack on one of the fundamental reasons why citizens join together to improve their communities, their government and their environment.

Here is what the Louisville Courier-Journal said in an editorial on August 6:
“Hoosiers...should be appalled. The only government (these legal challenges) threaten is bad government. Citizens access to the courts...must be preserved.”

The US Supreme Court has ruled that associational standing is protected under the US Constitution. HEC, CAC and STV will appeal the November 2 ruling to a higher court. If you would like more information on this issue and how your organization can get involved in helping combat this attack on our basic rights, please contact Andy Knott at HEC at 317-685-8800.