Kentucky Court of Appeals

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Kentucky Court of Appeals upholds “Best Professional Judgment” standard for Clean Water Act permits

May 29, 2015

In its opinion, the Commonwealth of Kentucky Court of Appeals affirmed the order of the Franklin Circuit Court, agreeing that the Kentucky Energy and Environment Cabinet failed to comply with the Clean Water in issuing a permit regulating water discharges.

U.S. Chamber files amicus brief

March 14, 2014

In its coalition brief, the U.S. Chamber asked the Kentucky Court of Appeals to review the Franklin Circuit Court order holding that the Clean Water Act requires the Kentucky Energy and Environment Cabinet to set “Best Professional Judgment” limits in the Kentucky Pollutant Discharge Elimination System. The brief argued that the circuit court incorrectly interpreted and applied the Clean Water Act and related Commonwealth law regarding standards for wastewater discharge permits. The Chamber points out that this interpretation is contrary to competent judicial authorities and longstanding regulatory practice, thus upsetting a national regulatory program. As a result, the order adversely affects the interests of an expansive array of Kentucky businesses, manufacturers, coal producers, local governments, and others who currently hold or must obtain wastewater discharge permits. The Chamber warned that if the order, is allowed to stand, Kentucky will face losing jobs.

The Chamber filed the brief jointly with the Kentucky Chamber of Commerce.

Mindy G. Barfield, Lloyd R. Cress Jr. and John G. Horne, II of Dinsmore & Shohl LLP represented the Chamber as co-counsel to the National Chamber Litigation Center.

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