Kentucky Resources Council - Annual Report 2020

KENTUCKY RESOURCES COUNCIL

ANNUAL REPORT CALENDAR YEAR 2020 KRC's 36th year of protecting Kentucky's natural and built communities from pollution and environmental harm has seen important work with positive outcomes for Kentuckians and the environment.

BY THE NUMBERS

We provided legal representation for communities who struggle with finding the justice they so rightly deserve as they fight to protect their homes, health, and quality of life in their corner of the Commonwealth from environmental threats.

KRC provided over $1,393,250 worth of legal assistance that defended Kentucky against an array of environmental issues, despite keeping expenses for our Defense program to $158,341.10.

We added to our caseload a number of new cases and issues, working hard to achieve beneficial outcomes to Kentucky's most pressing environmental and energy issues. As has always been the case, we don’t charge for our representation, and take no government or corporate monies, so that our work is the direct result of the support and faith of our donors and members.

ENVIRONMENTAL & COMMUNITY DEFENSE Settled

$1,393,250+

68% INCREASE

In fact, the Environmental and Community Defense program has experienced a substantial increase over the already large amount of services provided the year before.

21 COUNTIES

KRC assisted the Appalachian Citizens Law Center in representing Estill County residents regarding the unlawful disposal of oilfield radioactive wastes in the local landfill. A settlement provides for funded perpetual care of the landfill cap after the landfill closes and is released from funded responsibility by the state.

A decades-long fight to secure closure of a mine haul road resulted in a settlement for Pike County families that closed the road and reclaimed a landslide.

In addition to participating in impact litigation in statewide efforts, KRC provided direct litigation service to 20 Kentucky counties.

2 AMICUS BRIEFS

KRC provided expert legal guidance for two impact cases, providing information on the solid waste crisis and protecting Kentucky's viewsheds.

502-875-2428 | INFO@KYRC.ORG | KYRC.ORG PO BOX 1070, FRANKFORT, KY 40602

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Tackling New Issues

Representation of the Mountain Association, Kentuckians for the Commonwealth, and the Kentucky Solar Energy Society as Joint Intervenors in Kentucky Power Company’s pending rate case before the Kentucky Public Service Commission (PSC). This is the first case in which a PSC-regulated electric utility has proposed to end 1:1 net metering credit for rooftop solar, and to significantly reduce the value of the electricity fed into the grid from rooftop solar.

Challenging the permit for a less-than-one-acre construction / demolition debris landfill in Powell County, Kentucky. With 86 known less-than-one-acre landfills being approved with minimal permit review, the challenge could have a precedential effect on the permitting of all other similarly-situated landfills.

Providing assistance to Louisville’s Shelby Park Neighborhood Association in addressing air pollution and nuisance sewer odors from industrial operations in the area, and to Louisville’s Butchertown neighborhood on industrial air pollution problems. KRC is working to develop a multi-neighborhood air quality monitoring program for downtown and western Louisville neighborhoods.

Continued to Fight for Justice through Representation of...

A community group fighting a strip mining permit that could adversely affect a cave system and Lake Cumberland headwaters.

A Winchester, Kentucky resident working to bring a scrap yard into compliance with local zoning laws.

Western Kentucky citizens in administrative litigation against a land farming operation.

Butler County Citizens concerned with potential air quality and groundwater hazards from a proposed residual landfill that would accept aluminum dross and baghouse dust from an industrial facility.

The Metropolitan Housing Coalition (MHC) in challenging the denial of intervention for low-income advocates like MHC, in a rate case filed by LG&E/KU. The case has significant ramifications for the scope and availability of judicial review of intervention decisions by PSC. Scott County Government in attempting to resolve odor problems from a local landfill. Working with the Scott County Judge Executive and County Attorney, KRC has assisted the county in determining how it will manage its solid waste going forward. KRC will continue assisting the County in litigation that has been filed by the landfill after the County determined to amend its solid waste plan to cease hosting solid waste landfills within its borders.

Isaac Bernheim Foundation as they oppose a proposed natural gas pipeline that LG&E is seeking to construct across Bernheim and adjoining properties in Bullitt County. KRC represents Bernheim in the defense of a condemnation action filed by LG&E, and also in challenging the sufficiency of a water quality certification and stream construction permits issued for the project by the Energy and Environment Cabinet (EEC).

Eastern Kentucky family as they pursue abandoned mine land funding for their land affected by underground mining.

Provided Expert Legal Support

Assisted in the briefing of a case in which Plaintiffs are challenging the determination of the PSC to deny intervention to two landowners whose properties abut a proposed cell tower site before the Kentucky Court of Appeals and is awaiting decision. Litigation has potential precedential effect on future cell tower cases and in intervention issues before the Public Service Commission.

KRC has written most of the briefs and responses to PSC motions on behalf of MHC, Association of Community Ministries, and the Community Action Council, to protect low-income advocates' role in utility rate cases. The PSC has taken the extreme position that a denial of a request for intervention cannot be reviewed by any court.

The Franklin Circuit Court ruled on behalf of the advocates, and the PSC has appealed that decision.

Writing a “friend of the court (amicus curiae)” brief in support of the Kentucky Billboard Act, in a pending 6th Circuit case considering a District Court decision striking down the entire billboard act.

Authoring an amicus curiae brief opposing a state law that disrupts solid waste planning in Jefferson County, Kentucky by allowing up to 83 cities in that county opt out of the county solid waste planning with no obligation to create their own plan.

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Developing Ordinances for Local Communities

Drafted a transfer station siting ordinance for Scott County, which was adopted by the Fiscal Court notwithstanding opposition by one waste disposal company.

Proposed revisions to Trimble County Zoning Ordinance in response to concerns from Fiscal Court members regarding restrictions on residential land use, and also to help strengthen existing zoning controls over the land application of sludges and wastewaters. Residents credit KRC’s negotiations with helping the zoning ordinance to survive efforts to repeal it.

Developed the Kentucky Model Solar Zoning Ordinance in response to the increasing interest in the development of solar energy resources in Kentucky. KRC developed this Ordinance to assist localities in adopting provisions to regulate the siting of solar energy facilities in their communities. This Ordinance is based upon a review of best practices from across the United States and is tailored to meet the unique needs of Kentucky, with the goals of encouraging appropriate siting of solar facilities and protection of the correlative rights of landowners to the use and enjoyment of their lands. The Ordinance offers a “menu” of options in certain areas, to allow local officials in conjunction with county residents, to select the options that best meet their needs.

WHERE WE SERVED IN 2020

7

11 20 15

9

14

1

8 5

3

17

2 1. Madison 2. Graves 3. Casey 4. Robertson 5. Butler

6. Breathitt 7. Pendleton 8. Hopkins 9. Clark 10. Harlan

4

18

11. Trimble 12. Powell 13. Perry 14. Mercer 15. Bullitt

12

16 19 6 13 10

16. Estill 17. Pulaski 18. Scott 19. Wolfe 20. Jefferson

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CENTER FOR ENVIRONMENTAL POLICY During the 2020 session, KRC worked on several pieces of proposed legislation, seeking changes or registering our opposition to bills. Among those were: House Bill 44

Drafted language removing references that could have damaged protected rights of speech and assembly through the enactment of criminal penalties.

House Bill 247 Negotiated language requiring more accountability and transparency when local governments bypass competitive negotiation.

House Bill 365 Drafted language on pesticide reform statute to assure that lawn care application and notices would continue to be regulated.

House Bill 505 Negotiated language clarifying that 100-foot setback for solar projects of 5MW or greater can be waived by adjoining landowner or by siting board.

House Bill 575 Obtained language protecting the Public Service Commission’s (PSC) jurisdiction in a bill aimed at preventing local government natural gas bans for new buildings.

House Bill 570 Obtained language in the bill requiring that all interlocal agencies are subject to Open Meetings and Open Records laws and may not create a new agency for electric or gas utilities.

House Bill 352 Successfully secured amendments to the state budget restoring the fund levels for the Kentucky Office of Nature Preserves to current levels and providing an exemption for the PSC from the new prohibition on expending unbudgeted restricted funds absent legislative approval. This was needed to allow the state siting board to review requests for siting merchant power plants. Since the session began, two utility-scale solar plants have been proposed in Kentucky and others are expected.

Senate Bill 251 Lobbied to amend a bill that would have exempted remining of coal refuse piles from the state's mine safety statues.

In addition to bills that KRC worked to amend, KRC opposed several bills, including: House Bill 379 Would have expanded billboard proliferation.

House Bill 68

Would have imposed cost-benefit analyses on many regulations.

House Bill 574 Would have weakened protections of zoning overlay districts and make adoption of such districts more difficult.

House Bill 580 Would have imposed a graduated fee on cars for highway infrastructure funding, effectively penalizing fuel efficiency.

Senate Bill 86

Would have allowed local governments to opt out of public water fluoridation programs.

The Center for Environmental Policy also authored 15 bill analyses reports during the 2020 General Assembly, as well as briefing papers during 2020. These papers included: 20-01 Planning and Zoning and Hazardous Liquids Pipelines This background paper discusses the use of local land use planning and zoning to assist local communities to better plan for siting and conversion of pipelines transporting natural gas liquids that are co-produced with natural gas (methane).

20-02A Kentucky Model Solar Zoning Ordinance The model solar zoning ordinance is intended to provide a template for local communities to consider in revising land use planning and zoning to assure that utility-scale solar arrays proposed to be sited in Kentucky are located in a manner compatible with protecting of nearby land uses and minimizing adverse effects on prime farmland productivity.

20-02B Solar Zoning and Siting Board Interaction This background paper explains the interaction of local planning and zoning, and the Kentucky Electric Generation and Transmission Siting Board, which reviews proposals for non-utility ("merchant") power plants, including solar arrays rated at 10 MW or greats in capacity. The interaction of setbacks under state law and in local zoning ordinances, and the importance of communities having planning and zoning to adopt solar-specific zoning regulations, is explored.

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KENTUCKY ENVIRONMENTAL LEADERSHIP INSTITUTE (KELI) KELI, KRC's newest program, demonstrated great flexibility in the face of being launched during a global pandemic. Originally planned as a one-day, in-person workshops to be held in spring 2020, the KELI team quickly and safely adapted, in light of the COVID-19 pandemic, to providing much of the same information through the Kentucky Resources Council podcast (available wherever you listen to podcasts). The first season has concluded and a second season is under development.

By fall 2020, the team was prepared and transformed the in-person workshops to a digital space. The first session will be provided to Jefferson County residents, and the webinar will be continued for additional Kentucky counties.

Liz Edmondson, KRC Staff Attorney, taught Careers in Environmental and Energy Law, KELI's first webinar, providing information for University of Louisville law students on professional opportunities to practice environmental law.

"I want to continue to say thank you for all you do.

Our community will never be able to thank you enough.

Thanks to everyone at KRC for helping Kentucky!" - Sean

FINANCES 2.4%

Outreach Funding provided outreach materials, attendance at events, and digital communication resources.

5.5%

Kentucky Environmental Leadership Institute Funding provided research, curriculum development, and podcast production and publication.

16.3%

Administration Funding secures administrative support, professional and membership fees insurance, technology fees, postage, and travel across the Commonwealth.

16.8%

Center for Environmental Policy Funding secures a professional, registered environmental and energy lobbyist, research, writing, lobbying actions, weekly bill analyses during session, and development of scholarly articles and in 2020, two model ordinances available to all Kentucky counties.

59%

Environmental & Community Defense Funding secures attorneys, expert witnesses, legal research, legal insurance, and vital expenses like filing fees and trainings.

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OUR TEAM At KRC's small, but mighty team had a busy year in 2020. The KRC team is led by Director, Tom "Fitz" FitzGerald, who is also KRC's senior counsel and lobbyist. Liz Edmondson, Staff Attorney, supports a variety of KRC's litigation, policy advocacy, and education programs. Amy Carpenter, Office Manager, manages KRC's administration, finances, and communications.

In 2020, KRC welcomed two new faces. First, Ben Childress joined the team during the summer as KRC's 2020 intern. Ben provided valuable legal research for two model ordinances KRC developed for the benefit of Kentucky communities.

Next, KRC expanded its staff with Donna Counts, Development Associate for Major Gifts. Donna assists with cultivation and stewardship of major gifts from individuals and family foundations.

Of course, the KRC team is not complete without our dedicated volunteers who have helped provide vital legal research and our amazing Board of Directors.

2020 Board of Directors A huge thanks to our Board of Directors who provide incredible guidance, assistance, and support for KRC. Betsy Bennett Alison Brotzge-Elder Joe Childers Sarah Lynn Cunningham Madison Carter Dr. Larry Cook Arnita Gadson

Jim Hays Dr. Lauren Heberle Adam Johnson Jane Richards Roger Shott Hannah Weinstein

REMEMBERING THOSE WE LOST KRC joins family and friends in mourning the passing and celebrating the lives of several KRC supporters and environmental advocates who we lost in the past year.

Irvin Abell Lloyd Croft Winnie Hepler

Bob Logan Mary Margaret Mulvihill Judy Nichols

Stanley Campbell Nickell Jacqueline Noonan Marty Solomon