Kentucky’s Constitution, adopted in 1891 and in force today, is clear in proclaiming that “absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” Not even a supermajority. (Getty Images)

To the average person, “venue” is the place where some organized event happens — a concert, a conference, or (particularly in March) a basketball game.

To a person who suffers a legal wrong or injury, it is the court where the law says a criminal or civil case must be filed.

The general rule on venue for civil lawsuits claiming personal injury or property damage is that a lawsuit is filed where the injury arose, or where the defendant resides.

And because of that general venue rule, Franklin Circuit Court has historically been the venue for most constitutional challenges because Frankfort is the seat of the Kentucky government.? And just as the federal District of Columbia Circuit has developed some familiarity with challenges involving constitutional issues by virtue of the frequency and number of cases, so too the Franklin Circuit Court judges have, in my 44 years of experience and observation, developed a particular familiarity with those sorts of challenges among their peers.

Under Kentucky law, a party sued in a particular circuit court may request that venue be changed, and if it can be shown that a fair and impartial civil trial cannot be had because of the nature of the claim, or because of other circumstances, then a change of venue will be granted. There are also rules requiring recusal of individual judges for bias, prejudice or conflicts of interest.

There is an inherent and healthy tension among the branches of government. It is natural that the legislative branch doesn’t like legislative acts being questioned in court cases, and so have constrained the ability of the public to challenge the enactment of its laws. But some in the legislative branch particularly don’t like Franklin Circuit Court’s decisions upholding some of those challenges, even though those lower court decisions are most often affirmed by Kentucky’s higher courts.

And so, in recent years, there have been serial legislative efforts designed to move the venue for constitutional challenges to laws, to regulations and to state agency orders, out of Franklin Circuit Court.

Kentucky’s Constitution confers on the General Assembly the power to assign the venue for civil actions. Yet that power, and indeed all legislative power, is neither absolute nor without constitutional constraints when exercised arbitrarily.

In 2022, the venue for constitutional challenges to statutes, regulations and agency orders was changed by the General Assembly to the county in which the plaintiff resides, or for nonresidents, Franklin County. Eliminated, for only those types of cases, was the option to bring suit where the injury arose, or where the defendant legislature or agency resided. The argument in support of the change? was the convenience of the plaintiff.

Kentucky Supreme Court strikes down ‘random’ change of venue law

Dissatisfied that some constitutional challenges were still being brought in Franklin Circuit Court under those revised rules, the General Assembly passed Senate Bill 126 in 2023, providing an automatic right of any party to engage in a? “change of venue roulette.” By merely filing a motion and without any basis or reason, a party could force a change of venue to a circuit court somewhere else in the state that would be assigned randomly by the Supreme Court clerk.

Last year, the Kentucky Supreme Court struck that law as a violation of the separation of powers and an intrusion into the role of the circuit court to determine whether recusal or a change of venue was needed and justified.

House Bill 804, now pending in the Kentucky Senate, is this year’s entry in the “anywhere but Franklin Circuit Court” crusade. For civil actions challenging state laws, regulations and agency orders, the bill mandates that venue be moved on demand to an adjacent judicial circuit, without any reason or justification.

It delegates unchecked power to a party to a lawsuit to move a case to a new court and new judge, inviting forum shopping by a party without requiring any demonstration that the case cannot be fairly heard in the initial forum in which it was filed.

It singles out cases involving constitutional challenges, while still requiring for all other civil cases that there be a showing of undue influence, or inability to obtain a fair trial.

And it lays bare the fact that the justification for the 2022 change, which was supposedly for the convenience of the plaintiff, was wholly about preventing one circuit court from hearing these constitutional cases.

For under HB 804, a plaintiff filing a constitutional claim in the county of his or her residence under that 2022 law, can be forced to try the case in another forum upon a motion of any other party, with no showing that the court the plaintiff filed with cannot or will not fairly adjudicate the challenge.?

?HB 804 is all about assuring that those remaining constitutional claims that under the 2022 law are filed by nonresidents or by resident plaintiffs in Franklin Circuit Court can be moved on demand by any other party, such as the Attorney General, who typically defends the enactments of the General Assembly.??

Kentucky’s Constitution, adopted in 1891 and in force today, is clear in proclaiming that “absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” Not even a supermajority.

It is past time for the General Assembly to end the crusade, and to recognize that perhaps, just perhaps, the “fault lies not in our stars.” The problem may really not be the particular judicial forum in which challenges to state laws, regulations and orders have been brought in the past, but instead the occasional lapse of restraint and respect for constitutional boundaries in the enactment of laws that fuels successful court challenges.?

The legislature's move to preempt local efforts to create a more equitable and vibrant land use future will accomplish little but to further fuel cynicism and disaffection with the legislature and government, writes Tom FitzGerald. In this photo, the Louisville skyline is photographed from across the Ohio River just after sunset. (Getty Images)

It is said that a foolish consistency is the hobgoblin of a small mind.? That is nowhere more apparent than with the Kentucky General Assembly and its occasional respect for local governance.

Lawmakers purport to respect “local control” and to value home rule — the idea that, within limits, communities and their local elected officials are in the best position and should have the flexibility and latitude to weigh and decide issues uniquely affecting quality of life in their communities. But when it comes to local decisions affecting Metro Louisville (and Lexington to a lesser extent), some in Frankfort seem all too willing to selectively override local authority and second-guess decision making by elected officials.

The late Howard Baker Jr., Tennessee congressman and later U.S. senator, often recalled his father’s advice which helped to make him such a successful moderate who helped navigate our nation through the difficult issues of his day: “Always go through life working on the assumption that the other guy might be right.”

Seemingly not afflicted by that assumption, the General Assembly has intruded into local governance issues in several ways this session.

Homelessness a problem?? Frankfort knows best — just criminalize it.

Managing the most diverse and complex student body and school system in the commonwealth? Frankfort knows best — just split it up.

Reforming zoning to make housing options more affordable and neighborhoods more diverse and vibrant? Frankfort knows best — just impose a selective moratorium on further action and order more studies.

Prevent landlords from discriminating against veterans and folks with fixed or lower incomes by categorically refusing housing assistance vouchers? Frankfort knows best — just preempt communities from addressing such invidious discrimination.

The most recent example is a Senate committee change to House Bill 388, adopted with no notice to the public, that would impose a one-year partial moratorium on residential zoning reform efforts that have broadly involved the public in Metro Louisville, blocking any changes to zoning regulations that might increase the allowed density of housing units per acre, or the number of inhabitants in a building. Exclusionary zoning has long been the handmaiden of racial and economic discrimination. This move to preempt local efforts to create more affordable rental and owner-occupied housing for a more equitable and vibrant land use future will accomplish little but to further fuel cynicism and disaffection with the legislature and government.

If Frankfort really believes that those who are closest to issues uniquely affecting their communities — their health, their safety, their quality of life— should be empowered to make those hard decisions, subject to the ballot box and constitutional limits, then it should stop enabling those who turn to Frankfort to override local government decisions with which they disagree.

Don’t impose selective zoning bans, don’t criminalize homelessness, don’t meddle in local school system management, don’t interfere with local air pollution control and solid waste planning, and by resisting the calls to do so, send a clear message of respect for the ideas of civic engagement and home rule. Embrace restraint and occasionally, even humility.? Otherwise, be prepared to become embroiled in micromanaging every local controversy, as befits an entity that believes it always “knows best.”

Senate Bill 16 could potentially be used to charge someone with trespass for filming or recording an industrial hog operation while standing on their own property. (Scott Olson/Getty Images)

We expect, as a commonwealth, that when lawmakers propose to make activity criminal, that they choose their words carefully. We also expect that government will take action to assure that our food supply is safe, and that workers in the workplace will not be exposed to hazards due to employer negligence.

Yet pending before the House of Representatives is a bill that does not tread carefully in protecting these interests, and which could criminalize a worker or state inspector photographing unsafe working conditions or unsanitary food production conditions and could criminalize a neighbor standing on their own property, filming an industrial hog operation next door engaged in pollution or animal cruelty.

Kentucky Senate takes aim at ‘harassing’ drones photographing livestock, food production

In 2018, the General Assembly created a separate criminal offense for trespass involving a “key infrastructure asset,” which made unlawful entry or occupation on the property of a list of infrastructure assets such as refineries, pipelines, water plants, electrical facilities, and the like, a criminal trespass. Also made criminal were drone overflights of key infrastructure properties with the intent to surveil without consent and with intent to do harm or damage.

Senate Bill 16, pending before the House for a floor vote since March 7, would unreasonably expand the criminal activities where food production plants and animal feeding operations are involved, and create a separate and overbroad set of rules for those two types of facilities.

Using imprecise new language limited to those two types of facilities, the bill would criminalize the taking of photographs or video and audio recordings, by a government inspector or a worker lawfully on the premises of a food manufacturing plant or in a confined animal feeding barn, unless the owner specifically authorized that photography or filming. The law could create a new defense for a negligent manufacturer that the evidence collected by a worker or inspector documenting unsafe or unhealthy workplace conditions was unlawfully collected and could not be used.

So too, whether intentional or not, the overbreadth of the new language would make it a crime for a neighbor, standing on their own property, to make an audio, video or photographic recording of an air, water or waste violation occurring at a food manufacturing or packaging plant, or of a confined animal feeding operation located next door.

Though explained in committee hearings as being intended to prevent drone overflights, the bill does much more, greatly expanding criminal liability by covering actions both in the air and on the ground, both on and off the property.

By including actions “on or above” rather than limiting the changes in the law to unmanned aerial overflights without permission, the changes unintentionally make criminals out of workers, inspectors and neighbors who take photos, videos or audio recordings.?

The taking of a photograph by a worker in a food manufacturing plant of a safety violation; the taking of a photograph by a state or local food, safety, or environmental inspector during a routine or emergency inspection of a food plant or an animal feedlot operation; and the taking of a photograph or air or water sample by a neighbor on his or her own property, of a suspected odor or nuisance violation from an intensive hog farm or food manufacturing plant, would all be subject to criminal prosecution.

And although it was not the intent of the bill as explained by the sponsor in committee, because the new language would cover all properties where any number of horses, ducks, chickens or hogs are housed, stabled, or confined and fed for 45 days or more in any 12-month period, the taking of photographs or videos by persons lawfully visiting agritourism venues and racetracks would be criminal, unless the owner specifically consented to those actions.??

The imprecise language and likely unconstitutional overreach of the bill could be corrected by adopting two House floor amendments that have been filed. They would limit the new language to unauthorized trespass onto and unauthorized drone overflights above the properties and would specifically protect the rights of workers to document noncompliance of a federal, state, or local law or regulation and to be protected against retaliation or discrimination. Food safety, workplace safety, and safeguarding the rights of neighbors who live downhill, downwin, and downstream, demand no less.

“The cheapest kilowatt hour is the one you don't have to produce in the first place,” said Byron Gary, a Kentucky Resources Council attorney. (Photo by Scott Olson/Getty Images)

For many years, Kentucky’s three-person, non-partisan Public Service Commission (PSC) has presided over Kentucky’s investor-owned and co-operative electric utilities.

It has been guided by two principles — that utilities should meet the energy needs of residential, commercial, industrial and institutional customers using the reasonable least-cost alternative. And that those utilities, for the privilege of having a geographic monopoly over providing that service, should deliver adequate, safe and reliable energy to customers.

These principles have worked, for the most part, delivering electricity at rates that are among the nation’s lowest and which, even considering extraordinary weather events like Winter Storm Elliott, are highly reliable in delivering electricity to customers. The outages from that storm event were a function of problems with delivery and operation at fossil-fueled power plants, and not renewable energy.

In recent years, a number of market and other forces have led those utilities to diversify their portfolio of generating units, as natural gas and renewable energy costs have trended lower while the costs of coal-fired electricity have increased due to pollution controls, production and transportation costs, and maintenance costs for an aging fleet of coal-fired plants.

The result is that, based on the least-cost principles that once favored coal, other fuels are displacing coal as the fuel of choice for new electricity generation. And the PSC is managing that transition, requiring that a high standard of reliability be maintained, and that the least expensive and most reasonable portfolio of strategies be used on both sides of the meter to best meet customers’ needs going forward.

Clinging to coal: Kentucky utilities could have more hurdles to clear before retiring power plants

It is understandable that coal interests would want to maintain their market share, and that their supporters might want to change the rules to extend the life of uneconomic power plants while creating roadblocks to diversifying the mix of sources of electricity that utilities own or contract with to meet Kentucky consumer needs.

But changing the rules, as Senate Bill 349 proposes, will not stop the transition that is occurring in how and where electricity is generated, transmitted and used.? It will only make the transition more chaotic, more inefficient and more costly to Kentucky’s ratepayers. And in so doing, it will further burden Kentuckians, many of whom already struggle to meet utility costs and to address other essential needs for food, clothing and shelter.

Kentucky’s utilities interact with the Public Service Commission, and the public, in three major ways. They have to plan for the projected needs of their customers and how they will meet them, including the combination of new generation, energy efficiency and energy demand management that produces the highest value, lowest cost to customers. They need to ask permission before they build any new generation and show that it is the most reasonable approach, including the type of fuel to be used (coal, natural gas, nuclear, hydro, wind, solar or a combination). And they need to seek approval for the rates they propose to charge for the electricity, showing those rates to be fair, just and reasonable.

That has been our energy utility policy for many years — meeting Kentuckians’ electricity needs at the lowest reasonable cost while providing highly reliable energy at rates deemed fair, just, and reasonable.

To assure that the Public Service Commission can continue to do its critical work as gatekeeper and regulator of these monopoly utilities it needs four things — four things that SB 349 fails to support or provide but could provide if amended.

First, the PSC needs a staff adequate in number and sufficient in salary to address the many complex cases that come before it, from electric, gas, water and wastewater utilities to wholesale solar plants to cell towers. Right now it lacks sufficient staff and must in some cases rely on advice from outside consultants.??

Senate Bill 349 would make using consultants more difficult by subjecting them to cross-examination as if they were witnesses. PSC decisions are based only on evidence in the record, and the consultants do not provide evidence but only assist agency staff in analyzing the incredibly complex evidence produced by utilities. If lawmakers don’t want the commission to use consultants, they should fund it to hire technical staff to address increasingly complex issues. It is doing far more with less than it had years ago and loses dedicated staff to the regulated community due to inadequate pay and heavy workload.

The second thing the commission needs is adequate time to hear and decide cases. Many utility cases involve numerous parties, from businesses to industries to government intervenors and those representing persons with low-income and environmental concerns. To assure that utility requests for new construction or higher rates are thoroughly vetted, months of discovery and analysis of testimony are needed. Yet SB 349 would impose an unworkable and unwise six-month deadline on commission action, resulting in more hasty or less positive outcomes. One or two outlying cases do not justify imposition of unworkable deadlines, and those provisions should be removed from the bill.

Third, the commission needs to be able to analyze utility plans and proposals for delivering highest value, most reliable and lowest cost power without the rules being gamed in order to favor or pick winners and losers. Yet SB 349 as written would skew the planning and replacement process against expanding use of renewable sources and towards keeping older, higher-cost, fossil-fueled power plants.?

The PSC would be hamstrung in its gatekeeper function by having to allow uneconomic fossil-fueled electric generation units to continue for longer periods rather than be retired, and by not being able to approve renewable energy to replace retired coal units even if shown to be as reliable, as dispatchable and lower cost to the public in both pollution and utility rates than the older units being replaced. The General Assembly is right in wanting to assure highly reliable utility service but should not attempt to dictate the mix of resources or to skew the resource planning process.??

Fourth, the new energy policy commission created by the bill would not produce what is needed to guide Kentucky’s energy policy. The new commission proposed by the bill, stacked with representatives of special interests, would not produce the objective, high quality studies and analyses needed to help guide regulatory and utility decisions into the future.?

Rather than interjecting an industry-heavy commission into specific Public Service Commission cases, where its involvement would add little value and raise due process concerns, SB 349 could charge and empower the Center for Applied Energy Research at the University of Kentucky and the Conn Center at the University of Louisville, in conjunction with related academic resources from other state universities, in a new Energy Policy Institute. The legislature could create an advisory panel to guide it, made up of the interests identified in SB 349 and representatives of environmental interests and of residential, commercial and other ratepayers. The institute could generate high quality energy policy research to help guide Kentucky’s path forward, considering many of the issues identified in SB 349 that are not within the PSC’s role and other matters directly affecting ratepayers, such as pollution, climate change and affordability for low- and fixed-income Kentuckians.

SB 349 as written is not what Kentucky’s ratepayers need. But with modifications, it could fund and allow the Public Service Commission to continue to do its critically important job of requiring utilities to produce the most reliable, safest, and most reasonable, lowest cost electricity without undue preference for any fuel or fuels. It could harness the brainpower and expertise of our centers for applied and renewable energy, to assure maintenance of our energy competitiveness and to make and keep energy affordable, reliable and sustainable for Kentucky’s ratepayers.

The sludges remaining from municipal waste treatment contain nutrients for crops and pastures. They may also contain heavy metals and chemical contaminants that are taken up into the food chain and may harm the safety of crops and the health of livestock like these beef cattle grazing in Jessamine County. (Photo by Robert Pokorny)

On March 11, the Administrative Regulations Review Subcommittee will consider a set of revisions to Energy and Environment Cabinet regulations that weaken protections for farmers, farmland and the public from the application of contaminated sludges from municipal wastewater treatment plants.

Called “biosolids,” the sludges remaining from city treatment of residential, commercial and industrial wastes contain nutrients of value to crops and for growing livestock forage. They may also contain heavy metals and chemical contaminants with no value to agriculture, including contaminants that are taken up into the food chain and may harm the health of livestock, the safety of crops and the health of the consuming public.

Kentucky farmers, already in difficult economic circumstances in a “cheap food” economy that undervalues their essential work and the importance of their crop and livestock production, often use these sludges as fertilizers as a cost-cutting measure in lieu of commercial fertilizers.

And they rely on the cabinet to require permits and set standards and enforce testing requirements on these city treatment plant sludges to assure that if the sludge is sold or given to farmers for use as fertilizers it will not damage the productivity of their farmlands, contaminate their crops, or harm their livestock and ability to sell those products.

The land application of sewage sludges from cities has been subject to regulation by the cabinet for many years. Those cities have also been subject to federal regulations known as the 503 Regulations, adopted by the U.S. Environmental Protection Agency (EPA) in 1992.???

Complaints from a few cities of alleged delays in getting approvals for land applying their sewage sludges led to the enactment of Senate Bill 213 by the General Assembly in 2023.? SB 213 required the cabinet to revise its regulations to adopt standards “in conformance” with federal regulations that require routine monitoring for only nine pollutants.?

According to EPA’s own Inspector General in a 2018 report, EPA has failed to study the risks of and to set standards and require monitoring for 352 other pollutants detected in sludges by EPA, including 61 designated as acutely hazardous, hazardous or priority pollutants in other programs. The report concluded that EPA’s controls over the land application of sewage sludge (biosolids) may not fully protect human health and the environment.?

The cabinet’s proposed administrative regulations go much further than necessary to address SB 213 and significantly weaken accountability for applying this category of special wastes to Kentucky land. The cabinet’s regulations, if finalized without significant improvement, will result in:

• Less accountability for cities with respect to their wastewater treatment plant sludges that are land applied;
• Greater risk of contamination of farmland and potentially of crops and livestock;
• Creation of a new generation of state superfund sites where future remedial costs could be imposed on farmers and cities for cleanup of any lands where contaminated sludges were applied.

The cabinet knows that so-called “forever chemicals,” PFAs and PFOAs, are likely to be present in the sewage treatment plant sludges of cities whose municipal wastewater treatment plants (MWWTPs) accept industrial and commercial wastewaters in addition to residential and institutional wastewaters.

The key flaw among many is that there is no requirement for city testing of the sludges prior to land application for all known contaminants and no obligation to inform farmers if these sludges contain pollutants that may harm their health or land and soil productivity.

The cabinet knows that the EPA is moving forward to establish standards to limit public exposure to these forever chemicals due to known and suspected adverse health outcomes.

Yet despite this knowledge, the cabinet is moving forward with regulation changes that fail to require cities to test the sludges thoroughly and to inform farmers of the contents and that also fail to limit the land application of contaminated sludges. These regulations invite repetition of catastrophic situations such as have occurred in other states from such land applications, and which caused Maine to ban such actions.

The key flaw among many in the proposed regulations is that there is no requirement for city testing of the sludges prior to land application for all known contaminants of concern, including emerging contaminants such as PFAs and PFOAs, and no obligation to inform farmers if these sludges contain, in addition to nutrients, pollutants that may harm their health or land and soil productivity, and at what levels they are present.? The only thing that the city must tell the farmer is that the “biosolids may contain constituents from an industrial pretreatment program.” What pollutants are present and how much, are not required to be tested for or shared even if known.

And when that contamination of farmland occurs, it will be only by happenstance that it? is discovered, and there will be no obligation under these proposed regulations, to remedy the contamination.?The burden of the contamination of land and groundwater resources will fall on the farmer, and not the cities whose systems generated the sludges.

The cabinet admits that it is aware of instances in other states where long-term application of biosolids containing emerging contaminants has been “determined to be impactful to public health and the future viability of the land on which it was applied.” Yet knowing this, it proposes to allow that practice here until and unless federal rules are developed that limit such practices.

The?interests of the farming community in assuring that the sludges that they get from the cities are not contaminated with PFAs and other chemicals that have no agricultural use or value — but have a real and proven potential for contamination of land, crops, and livestock — is being sacrificed to accommodate the short-term interests of cities in cheaper disposal of their wastewater treatment sludges.?

The long-term interests of the cities and of the commonwealth — in the protection of farmers and farmland, public health, and avoidance of future cleanup liability — are served by shelving the proposed regulations and proposing a more responsible and vigorous set of requirements for testing and informed consent.

The short-term interests of the cities in finding a way to inexpensively dispose of their municipal wastewater treatment sludges appears in the proposed regulations to have trumped the protection of public health, the environment, agricultural land and those who receive and apply the wastes.??

If the cities cannot control or address the contamination through pretreatment or other means to assure that the sludges they sell or give to farmers are?in fact?only “nutrient-rich,” “organic,” and will “improve” or “maintain” productivity of the soils — rather than contaminate and render them unusable — then the cities should utilize other more responsible and accountable approaches to special waste management.