Commonwealth v. Shepherd, Nos. 2011–SC–000482–MR, 2011–SC–000485–MR.

• Decision Date: 26 April 2012
• Docket Number: Nos. 2011–SC–000482–MR, 2011–SC–000485–MR.
• Citation: 366 S.W.3d 1
• Parties: COMMONWEALTH of Kentucky, ENERGY AND ENVIRONMENT CABINET, Appellant, v. Honorable Phillip J. SHEPHERD, Judge, Franklin Circuit Court; Frasure Creek Mining, LLC; ICG Hazard, LLC; ICG Knott County, LLC; ICG East Kentucky, LLC; and Powell Mountain Energy, LLC, Appellees, and Appalachian Voices, Inc., et al., Real Parties In Interest, and Frasure Creek Mining, LLC, Appellant, v. Honorable Phillip J. Shepherd, Judge, Franklin Circuit Court; Commonwealth of Kentucky, Energy And Environment Cabinet; ICG Hazard, LLC; ICG Knott County, LLC; ICG East Kentucky, LLC; and Powell Mountain Energy, LLC, Appellees, and Appalachian Voices, Inc., et al., Real Parties In Interest.
• Court: United States State Supreme Court — District of Kentucky

366 S.W.3d 1

COMMONWEALTH of Kentucky, ENERGY AND ENVIRONMENT CABINET, Appellant,

v.Honorable Phillip J. SHEPHERD, Judge, Franklin Circuit Court; Frasure Creek Mining, LLC; ICG Hazard, LLC; ICG Knott County, LLC; ICG East Kentucky, LLC; and Powell Mountain Energy, LLC, Appellees,andAppalachian Voices, Inc., et al., Real Parties In Interest,

and

Frasure Creek Mining, LLC, Appellant,

v.Honorable Phillip J. Shepherd, Judge, Franklin Circuit Court; Commonwealth of Kentucky, Energy And Environment Cabinet; ICG Hazard, LLC; ICG Knott County, LLC; ICG East Kentucky, LLC; and Powell Mountain Energy, LLC, Appellees,andAppalachian Voices, Inc., et al., Real Parties In Interest.

Nos. 2011–SC–000482–MR, 2011–SC–000485–MR.

Supreme Court of Kentucky.

April 26, 2012.

Mary Alma Stephens, John G. Home, II, Joshua Wayne Nacey, Energy and Environmental Cabinet, Environmental Protection Legal Division, Frankfort, KY, Counsel for Appellant/Appellee Commonwealth Of Kentucky Energy And Environment Cabinet.

Phillip James Shepherd Judge, Frankfort, KY, Counsel for Appellee.

Anne Adams Chesnut, John Clarence Bender, Richard Clayton Larkin, Greenebaum, Doll & McDonald, PLLC, Lexington, KY, Counsel for Appellant/Appellee Frasure Creek Mining, LLC.

Kevin Michael McGuire, Laura Patterson Hoffman, Jackson Kelly, PLLC, Lexington, KY, Counsel for Appellees ICG Hazard, LLC, ICG Knott County, LLC, ICG East Kentucky, LLC, and Powell Mountain Energy, LLC.

Mary Varson Cromer, Appalachians Citizens' Law Center, Whitesburg, KY, Lauren H. Waterworth, Waterworth Law Office, PLLC, Boone, NC, Counsel for Real Parties In Interest Appalachian Voices, Inc., Waterkeeper Alliance, Inc., Kentuckians For The Commonwealth, Inc., Kentucky Riverkeeper, Inc., Pat Banks, Lanny Evans, Thomas H. Bonn, and Winston Merrill Combs.

Opinion of the Court by Justice ABRAMSON.

The Commonwealth of Kentucky's Energy and Environment Cabinet and Frasure Creek Mining, LLC, appeal from a July 19, 2011 Order of the Court of Appeals denying their separate but consolidated petitions for writs of mandamus and prohibition against Franklin Circuit Court Judge Phillip J. Shepherd. The Cabinet and Frasure Creek are before Judge Shepherd in an enforcement action under Kentucky's analog of the federal Clean Water Act, and as a resolution of that action they have jointly moved the trial court to enter a consent judgment which they have negotiated. They object to the trial court's decision to allow the real parties in interest—Appalachian Voices, Inc.; Kentuckians For The Commonwealth, Inc.; Kentucky Riverkeeper, Inc.; Waterkeeper Alliance, Inc.; Tom Bonny; Winston Merrill Combs; Pat Banks; and Lanny Evans (collectively the “Citizen Plaintiffs”)—to intervene in the Cabinet's action, and so they petitioned the Court of Appeals for writs forbidding the intervention and compelling entry of the consent judgment. Because we agree with the Court of Appeals that the trial court is proceeding within its jurisdiction and that the Cabinet and Frasure Creek have an adequate remedy by appeal for the errors they allege, we affirm the Court of Appeals' denial of extraordinary relief.

RELEVANT FACTS

Although as usual the record is sparse in this appeal from original actions in the Court of Appeals, it appears that Frasure Creek owns and operates coal mines, primarily in Pike County, Kentucky. In the course of its operations it discharges pollutants into one or more of the Kentucky, Big Sandy, and Licking Rivers, and their tributaries. The discharges are regulated pursuant to a National Pollutant Discharge Elimination System (“NPDES”) permit issued by the Cabinet.

On October 7, 2010, the Citizen Plaintiffs gave notice of their intent to sue Frasure Creek and another coal mining company pursuant to the citizen suit provision in section 505 of the federal Water Pollution Control Act Amendments of 1972, commonly known as the Clean Water Act. 33 U.S.C. § 1251 et seq.Section 402 of the Clean Water Act, 33 U.S.C. § 1342, provides for the issuance, by the Administrator of the Environmental Protection Agency (EPA) or by EPA authorized states—Kentucky among them—of NPDES permits. Such permits allow for, but impose limits on, the discharge of pollutants into the navigable waters of the United States. They also establish related monitoring and reporting requirements. Noncompliance with a permit constitutes a violation of the Clean Water Act. 33 U.S.C. § 1342(h).

Under § 505(a) of the Clean Water Act, a suit to enforce any limitation in an NPDES permit may be brought by any “citizen,” defined as “a person or persons having an interest which is or may be adversely affected.” 33 U.S.C. §§ 1365(a), (g). Sixty days before initiating a citizen suit, however, the would-be plaintiff must give notice of the, alleged violation to the EPA, to the State in which the alleged violation occurred, and to the alleged violator. 33 U.S.C. § 1365(b)(1)(A). It was this sixty-day notice of intent to sue (NOI) that the Citizen Plaintiffs issued on October 7, 2010. The purpose of the notice is at least twofold: to give the alleged violator a chance to bring itself into compliance and thus to render the citizen suit unnecessary, Friends of the Earth, Incorporated v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987)), and to give the EPA or the affected State a chance to initiate an enforcement action, which, as long as it is “diligently prosecuted,” will preclude commencement of the citizen suit. 33 U.S.C. § 1365(b)(1)(B).

At the very close of the sixty-day notice period in this case, on December 3, 2010, the Cabinet brought the instant enforcement action against Frasure Creek and thus invoked the statutory bar to the Citizen Plaintiffs' suit. Together with its complaint, the Cabinet filed the proposed consent judgment, and one week later, on December 10, 2010, the Cabinet and Frasure Creek filed a joint motion to have the consent judgment entered. With that motion pending, on December 14, 2010 the Citizen Plaintiffs moved to intervene, attaching a proposed intervening complaint. Both the Cabinet and Frasure Creek opposed the intervention. On February 11, 2011, after the parties had briefed and argued the issue, the trial court issued a carefully circumscribed order granting intervention to allow the Citizen Plaintiffs an opportunity to voice their objections to the proposed consent judgment, but holding in abeyance any consideration of the Citizen Plaintiffs' own purported claims under the Clean Water Act. It was that order granting intervention that prompted the Cabinet and Frasure Creek's quest for extraordinary relief. They maintain, as they did before the Court of Appeals, that the trial court's intervention order runs counter both to jurisdictional limits imposed by Congress and to state law rules and standards for granting intervention and approving consent judgments. We begin our analysis of these contentions by restating the high hurdle an applicant for extraordinary relief must clear.

ANALYSIS

In Cox v. Braden, 266 S.W.3d 792 (Ky.2008), we emphasized that to prevent the disruption of trial court proceedings and the waste of appellate court resources occasioned by interlocutory appeals, extraordinary relief under Kentucky Rule of Civil Procedure (CR) 81 in the form of writs compelling or prohibiting some act by the trial court is limited to two narrow circumstances. Such relief may be granted, we reiterated, only

upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

Id. at 796 (quoting Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004)). There is a limited exception to the second class of writs where the court is acting within its jurisdiction but erroneously, i.e., if there is no adequate remedy by appeal, the showing of great and irreparable harm can be dispensed with if the case involves “a substantial miscarriage of justice” and “correction of the error is necessary and appropriate in the interest of orderly judicial administration.” Cox, 266 S.W.3d at 797 (quoting Hoskins v. Maricle, 150 S.W.3d at 10). As for this Court's role on direct appeal from the Court of Appeals in a writ case, we review the Court of Appeals' legal rulings de novo, its factual findings for clear error, and ultimately its decision to grant or deny extraordinary relief for abuse of discretion. Grange Mutual Insurance Company v. Trude, 151 S.W.3d 803 (Ky.2004).

I. The Trial Court is Proceeding Within its Jurisdiction.

In the first type of writ case referred to above, the “jurisdiction” at issue is the trial court's subject matter jurisdiction, i.e., its authority to address the matter or the question before it. Goldstein v. Feeley, 299 S.W.3d 549 (Ky.2009). The Cabinet and Frasure Creek contend that the federal courts have exclusive subject matter jurisdiction over citizen suits under the Clean Water Act and thus by allowing the Citizen Plaintiffs to intervene in this state—court proceeding, the trial court is purporting to exercise a subject matter jurisdiction that federal law preempts. As the parties note, the federal Circuit Courts of Appeal which have addressed the question of federal preemption—usually in the context of the Resource Conservation and Recovery Act (RCRA), the citizen suit provisions of which are similar to those of the Clean Water Act—have split, the First, Third, Seventh, and Eighth Circuits having held or indicated that federal jurisdiction over citizen suits is exclusive, the Sixth Circuit...