Court allows green groups to join suits
Madison case said to 'broaden' law
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By Lesley Stedman Weidenbener
lstedman@courier-journal.com
The Courier-Journal


INDIANAPOLIS — The Indiana Court of Appeals, in a case involving the Clifty Creek power plant near Madison, has opened the door for environmental groups to intervene in administrative and legal disputes on behalf of their members.

The court's decision "broadens Indiana law" on who can and can't challenge state permits and other actions, said Linda Runkle, an attorney for the Indiana Department of Environmental Management.

The agency — which got a new management team this week after the inauguration of Gov. Mitch Daniels — is still reviewing the ruling's public-policy ramifications, Runkle said. But she called the decision "very important."

However, an attorney for the power plant said yesterday that the company will either ask the appeals court to reconsider its decision or petition the Indiana Supreme Court to hear the case.

At issue is whether Save the Valley, the Hoosier Environmental Council and the Citizens Action Coalition can appeal a Clifty Creek landfill permit issued by the Department of Environmental Management if they have members who are affected by the plant.

The groups claim the plant's coal-ash landfill could be polluting the local aquifer, which supplies drinking water to Madison and Hanover.

Indiana-Kentucky Electric Corp., which owns the plant, maintains that it is in compliance with all permits, rules and laws and that the landfill permit was properly issued, said its attorney, Tony Sullivan.

Regardless, the company argued that the environmental groups could not appeal the permit decision in any event. Sullivan said the groups did not have standing in the case because state law only allows individuals to intervene in such decisions.

A Marion County judge sided with the power plant in 2003, ruling essentially that the office buildings, property or employees of Save the Valley and the other groups must have been affected by the permit to have standing in the case.

But the appeals court ruled this week that the groups do have standing under a 1977 U.S. Supreme Court decision.

That decision, in a case from Washington state, created the doctrine of "associational standing" — a group's right to represent their members. About 20 states have since adopted the doctrine.

In this week's ruling, the Court of Appeals said "we see no reason" why the doctrine shouldn't also apply in the Clifty Creek case.

The court said that because the individual members appeared to have standing in their own right, the groups could represent them.

Mike Mullett, an attorney representing the three groups involved in the case, applauded the decision.

"This is the reason that most people join citizens' groups, particularly those that focus on environmental matters and utility matters," Mullett said. "These are the types of things where individual citizens are mismatched against major corporations in terms of time and expertise and resources."

Environmentalist John Blair called the ruling "a victory for Hoosiers across the state."

But Sullivan said the appeals court erred in applying the federal standards to a state case.

He said state law specifies that only someone with a "direct injury" can appeal administrative decisions.

"That's been state law for the last 100 years," he said. "The court did not look at that very closely."

Environmental management officials said originally that allowing special-interest groups to appeal the hundreds of permits the agency issues each year "would lead to multiple, burdensome challenges."

But Runkle said that when the case was before the appeals court, the agency argued only that "we did not believe associational standing was enabled specifically by statute or the case law."

She said this week's decision amounted to a "clarification" of the law for the agency.

Runkle said it was premature to say whether the agency also would ask the Supreme Court to take up the case