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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Opposes Abridging Public Rights In OrderTo Attract Gasification Plant  Posted: March 2, 2007


WRITTEN STATEMENT OF KENTCKY RESOURCES COUNCIL, INC.
BEFORE THE SENATE AGRICULTURE AND NATURAL RESOURCES
COMMITTEE ON SENATE BILL 196

MARCH 1, 2007

Mr. Chairman, members of the Committee, KRC has concerns with Senate Bill 196, which are only partially allayed by the committee substitute and committee amendment. KRC indicated to the proponents of the bill that KRC would not oppose a limited bypass of siting board review for facilities that would generate electricity at less than 150 MW as part of a gasification plant, provided that the facility received zoning and planning approval. KRC also indicated that it would not oppose the portion of the bill providing a single point of contact with the agency and a negotiated permit timeframe.

KRC cannot, however, support the elimination of siting board review in those counties without zoning and planning, nor can it support the bypassing of circuit court review of agency permitting decisions. The bill is a "quid pro nothing" where this type of facility is being "incentivized" by special legislation that abridges citizens rights and provides procedural shortcuts that aren't available to other facilities that might be more significant employers or of greater benefit to the state.

While the committee amendment replaced the original language that had bypassed circuit court and placed administrative appeals in the Court of Appeals with new language reinstating circuit court review but transferring venue to the local circuit court rather than Franklin Circuit Court, is an improvement over the original bill in terms of not curtailing public access to a second level of appellate review, KRC believes that a shift of venue for permit appeals for these facilities from Franklin Circuit Court to a local circuit court is unwise for several reasons:

First, such a changed venue will not shorten the time period for judicial review. The applicant or third party seeking local judicial review of a permit determination is, by definition, dissatisfied with the permitting decision. In all likelihood, this appeal would be the only time that the local circuit court will ever hear an air, waste or water permit challenge, so that the learning curve will be very high for that judge and his or her clerk, taking more time and significant effort.

Additionally, having a neutral forum that is familiar with the law and regulations can be of value where there a controversial proposals for siting energy facilities. Typically, it will be the citizen filing a challenge to permit issuance, so that by definition there is some tension in the local community over the project, which will make an elected circuit judge somewhat uncomfortable with having to decide the case. Additionally, that judge will be less inclined to grant deference to the agency's actions due to unfamiliarity with the agency practice and procedure, unlike the Franklin Circuit Court, which has a consistent body of unpublished jurisprudence upholding agency actions except in fairly egregious situations.

The adage of being careful what you ask for fits here pretty well. The Franklin Circuit Court, being removed from the politics of industrial development and quality of life decisions, and being extremely well-versed in administrative procedure and judicial review thereof, may be a better forum for all concerned.

In closing, KRC believes it more appropriate that we incentivize by creating positive incentives rather than creating exceptions to generally-applicable processes and “streamlining” by abridging citizen rights, which invariably tends to create suspicion and resentment.


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