Legal Punt - The Missourian: Editorials

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Legal Punt

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Posted: Saturday, August 2, 2014 6:30 pm

If you were hoping for some illuminating guidance from the Missouri Court of Appeals on the Ameren coal ash landfill legal saga you were probably disappointed.

Last week’s 2-1 decision was intriguing but ultimately unsatisfying. Citing the general importance of the legal issues, the appellate court transferred the case to the Missouri Supreme Court.

Another way to say it is that the court of appeals punted. “Punting” is the traditional legal term for a decision not to decide. It’s really not that uncommon. Courts do it all the time.

As a practical matter, it means the case will drag on even longer, which is a victory for a group of landowners who live in the vicinity of Ameren’s power plant in the Labadie Bottoms.

Led by the Labadie Environmental Organization (LEO), the property owners have been relentless in their opposition of the landfill. Every day that passes without the landfill in existence is a blessing for the plucky group, which has battled Franklin County and Ameren at every turn in this protracted controversy.

The case before the appellate court involved the county’s land use regulations that were passed to allow coal ash landfills, if conditions are met, like the one Ameren is proposing adjacent to its power plant.

The landowners challenged the ordinance on several grounds, but it is their claim that county commissioners had unfairly limited testimony at public hearings where the zoning regulation was debated that caught the attention of the majority of the appellate court judges.

Was it “fair” that opponents were barred by the commissioners from specifically mentioning Ameren’s proposal because the utility had not filed an application yet?

A majority of the appellate court panel felt there was enough questions on this point that the case should be remanded back to the trial court for a ruling on the fairness of the hearing. A dissenting judge, Gary Gaertner Jr., found that the hearings were fair and that everyone had an opportunity to express their concerns over the landfill despite admonishments from the commission.

Judge Gaertner’s analysis of the issue is correct. Although it’s not surprising that his colleagues seized on the fairness issue. It was ridiculous to prevent people from mentioning the Ameren proposal directly when the whole reason for the hearing was Ameren’s proposal.

Our guess is that if the commissioners had to do it over, they might have done away with that prohibition. They looked heavy-handed and ridiculous.

But there also is no denying that residents were allowed to get their two cents in on the landfill, prohibition or no prohibition. In fact, the county held a total of five public hearings on the landfill and hours upon hours of testimony were taken. To say that the hearings weren’t fair misses the mark.

The county could schedule more public hearings and they ultimately may be compelled to do so by the Supreme Court. But we doubt if that is going to change the outcome of this case.

It’s hard to see how additional testimony would sway the commissioner’s view or the trial judge who already ruled that the county’s zoning amendment allowing utility landfills is legal and supported by the evidence in the record.

/opinion/editorials

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