NLG Weinglass Fellow Fights Construction of Toxic Kentucky Prison

By Emily Posner, NLG Weinglass Fellow

Over the past two years, the Letcher Governance Project (LGP), Coalition to Fight Toxic Prisons (CFTC) and Abolitionist Law Center (ALC) have worked in collaboration to stop the Bureau of Prisons’ (BOP) proposal to build a new penitentiary on top of a former mountain top removal site used for coal mining in Letcher County, Kentucky.

The proposal initiated an environmental review process required by the National Environmental Protection Act (NEPA). In turn, the BOP has held multiple public meetings and comment periods about its Environmental Impact Statement (EIS). The EIS outlines the actions taken by the agency in considering all of the environmental consequences of a project prior to finalizing its decision to move forward. With its appendixes, the EIS was well over 1,000 pages. The BOP made it available online and at public libraries in Letcher County. The NEPA process for this project will conclude once the BOP issue a record of decision (ROD) concerning the EIS.

At each opportunity for public participation, LGP, CFTC and ALC submitted in-depth comments that outlined our opposition to the project due to its serious environmental, social and economic impacts. We also organized the submission of expert comments from a prison administrator, environmental engineer, and endangered bat surveyor.

We also asked 500+ federal inmates to submit comments to the BOP about how they did not have access to the EIS, which made it impossible for them to submit any form of meaningful comment to the BOP about this project that will deeply impact them.

We hold that both NEPA’s implementing regulations and the BOP’s internal policies required the agency to make the EIS available to inmates at their facilities’ law libraries. By not making the EIS accessible to federal inmates, we believe that the BOP did not comply with the process mandated by NEPA.

To date, the BOP has not published an ROD. If the BOP does publish an ROD, the release of that document allows those individuals and organizations who commented on the EIS the opportunity to sue the agency under NEPA.

Meanwhile, through the support of a Weinglass Fellowship, the NLG has supported my firm in coordinating with the federal inmates who are opposed to this project. While there is no judicial precedent on this issue, we believe that the Prison Litigation Reform Act (PRLA) adds an additional administrative process on inmates who may wish to challenge the legality of the EIS. Consequently, through the support of the NLG, we are maintaining contact with approximately 50 inmates as they administratively exhaust their grievances with this proposed project.

As we wait for an ROD, our attention has also turned to Congress to put pressure on its members to pull the funding for this project. In 2016, at the behest of Kentucky Representative Hal Rogers, Congress allocated $444 million to build this unnecessary prison in a location that puts at risk the health of inmates, correctional officers and their families.

Recently, the Department of Justice (DOJ)(who also oversees the BOP) informed Congress in its proposed FY2018 Performance Budget that there is no longer a need to build this particular prison due to a declining federal prison population and the availability of more “efficient and cost-effective ways” to expand prison capacity than building a massive new facility. The DOJ’s perspective calls into question the BOP’s purported purpose and need for this project. Above all, it demonstrates that in reality this prison exemplifies unnecessary pork barrel spending on the part of the federal government.

Please don’t hesitate to call the US Capitol switchboard at 202-224-3121 to voice your support of rescinding funding for the Letcher prison to your Senator and Representative.