A county judge in Missouri, in an unprecedented ruling, has blocked two Kansas City newspapers from publishing revelations that a Kansas-based power utility had failed to comply with Clean Air Act pollution-control regulations.
The judge's order even compelled The Kansas City Star and the alternative weekly The Pitch to remove articles about the violation from their Web sites. An attorney for The Star called the order to take down the web articles a clear constitutional violation, but the newspaper complied.
As of 8:25 a.m. CST today, there was still a version of the article on The Pitch web site. Here is a portion of the Pitch article:
Breaking News: BPU Could Face Thousands in Fines
A confidential report reveals the utility didn't follow federal pollution regulations when upgrading its plants.
Justin Kendall
Published: March 1, 2007
The Board of Public Utilities in Kansas City, Kansas, may be liable for thousands of dollars in fines for failing to comply with anti-pollution regulations, according to a confidential document obtained by the Pitch.
The document was prepared November 16, 2004, by lawyer Stanley A. Reigel. It weighs the pros and cons of admitting to the Environmental Protection Agency that upgrades at BPU power plants did not comply with the federal Clean Air Act.
The report was hand-delivered to Marc Conklin, BPU general counsel and human resources director. The report is stamped "CONFIDENTIAL" and warns against duplication without Conklin’s approval. Conklin did not return a call from the Pitch.
. . .
When Reigel’s report was written, the EPA was auditing utility companies to see whether upgrades and repairs made after 1980 at coal-powered power plants followed federal guidelines. The letter indicates that the BPU was preparing to respond if audited by the EPA. However, it’s unclear what action, if any, the BPU took after Reigel delivered his letter.
. . .
According to Reigel’s letter, his report was spurred by a November 14, 2003, analysis of BPU’s coal-fired power plants by Burns & McDonnell Engineers. The engineering firm estimated that upgrades to the plants to make them comply with federal regulations would cost the utility nearly $160 million.
Reigel’s 15-page document identifies 73 repairs or upgrades that may not have followed EPA rules. The work was done at the utility’s three power plants: Nearman Creek Power Station, Quindaro Power Station and the now-closed Kaw Power Station. The work was completed between January 1980 and November 2004. Reigel determined that 15 of those repairs and upgrades were "questionable" and another 15 projects would be "probably not defensible" if the EPA conducted an audit.
The current link to the Pitch story is
here. The Star's story about the judge's ruling is here.
Aside from the assault on the health and safety of hundreds of thousands of people in Missouri and Kansas, this case represents a clear assault on the first amendment. The order to take down the Web articles is particularly chilling. While I hope, with some confidence, that the county judge will eventually be overruled, this is an example of the risk that we face on issues ranging from net neutrality to proposals to define Web-based publishing in a separate category from dead-tree publishing.
This is bad jurisprudence, and Jackson County (Mo.) Circuit Judge Kelly Moorhouse, who issued the ruling, needs to be sharply overruled by a higher court, and soon.