Judge Reverses Ruling, 2 Papers Publish Banned Story

Editor & Publisher, March 6, 2007 | Go to article overview

Judge Reverses Ruling, 2 Papers Publish Banned Story


Fifteen upgrades at power plants operated by a Kansas utility may have violated federal clean air rules, according to an internal document published by two Kansas City newspapers on Tuesday after a judge's ban was lifted.

The document is a legal analysis prepared by a lawyer in 2004 for the Board of Public Utilities of Kansas City, Kan. The attorney examined 73 improvement projects at BPU plants for possible violations of Environmental Protection Agency regulations.

Jackson County, Mo., Circuit Judge Kelly Moorhouse on Friday ordered The Kansas City Star and a weekly newspaper, The Pitch, to remove stories about the document from their Web sites. Both publications had obtained the document independently from an anonymous source.

But the Missouri Court of Appeals on Tuesday prohibited Moorhouse from enforcing her ban on publication. The higher court's brief order agreed with the newspapers that the ban caused them "irreparable harm" with no adequate legal remedy.

In motions filed Monday with the Court of Appeals, the newspapers said Moorhouse's order violated the constitutional prohibition on prior restraint of publications except in the most extraordinary situations.

Lawyers for the BPU responded Tuesday that the document should be protected by rules usually protecting attorney-client communications against being made public.

The document analyzed 73 projects for the risks of penalties by the EPA and concluded that 15 were "probably not defensible" and 15 were "questionable."

Labeled a "liability analysis," the document says the BPU could be subject to thousands of dollars in fines. It points out that the utility has the choice of approaching the EPA to reach a settlement or waiting for the EPA to initiate action.

Leon Daggett, who was the utility's general manager in 2004, said BPU wanted to be prepared in case the EPA asked for the information in the analysis. …

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