by Panagioti Tsolkas

More than three years after a controversial environmental review process for a new federal prison, conducted by the federal Bureau of Prisons and its consulting firm Cardno, attorneys filed suit in November 2018 on behalf of 21 federal prisoners spread across the country. The plaintiffs claim they were not properly informed about plans to construct the $444 million prison on top of a former coal mine in Letcher County, Kentucky, next to an active mine and coal sludge pond, where they could be housed once the facility is built. The Abolitionist Law Center (ALC), an organization that advocates for prisoners’ rights, is listed as both a plaintiff and counsel in the case.

The complaint was filed following multiple delays in the prison construction project caused by challenges from local land owners and advocacy organizations – including the Human Rights Defense Center, PLN’s parent organization – which initially coordinated opposition efforts that generated tens of thousands of public comments opposing the facility. [See: PLN, Oct. 2015, p.30].

The lawsuit states that federal prisoners should have been considered parties with legally-required access to documents, as required by the National Environmental Policy Act (NEPA). The Environmental Impact Statement (EIS) process outlines a wide range of social and environmental issues, including potential health risks and alternatives to construction, which directly affect prisoners who may be held at the proposed Letcher County facility. The final EIS approval occurred in March 2018.

The plaintiffs are asking the court to halt progress on the prison construction until they have received access to documents for review and comment in accordance with NEPA and the Administrative Procedure Act.

The concerns raised in the suit include the BOP’s failure to show an adequate assessment of alternatives, including an accurate indication of an actual need for the project. The complaint states the BOP completed its alternative analysis for the Letcher County prison based on 2005 data, which is now outdated.

The plaintiffs note that the BOP could renovate existing low-security facilities in the Mid-Atlantic region to house high-security prisoners. But instead of considering that option, the lawsuit argues the BOP confined the scope of its NEPA analysis to “actions and alternatives that would promote the construction of a new” penitentiary.
The 56-page complaint also labels the Letcher County site a public health risk, pointing out that mining activity impacts those living nearby even if mining has stopped.

“Several peer reviewed articles have indicated that 1) people living near mountaintop mining have cancer rates of 14.4% compared to 9.4% for people elsewhere in Appalachia; 2) the rate of children born with birth defects was 42% higher in areas near mountaintop removal mining; and 3) the public health costs of pollution from coal operations in Appalachia amount to a staggering $75 billion a year.”

Lastly, the lawsuit expresses concern for the surrounding ecosystem, stating, “Development of the project would permanently degrade the already vulnerable environment ... clear-cutting over 120 acres of forest habitat for endangered bat species, excavating and grading an additional 59 acres, destroying three acres of wetlands, building an entirely new wastewater utility in the region, and emitting thousands of pounds of additional greenhouse gas emissions.”

While this is not the first time that NEPA has been used to challenge prison construction, or that prisoners have attempted to engage in the EIS public comment process, it may be the first example of litigation led by prisoners who are asserting their right to be recognized as impacted parties for purposes of the environmental review.
One prisoner named as a plaintiff in the suit, Manuel Gauna, stated: “I believe that construction of this particular prison is neglecting the people in Letcher and the people in the prison system. We as prisoners should have had the opportunity to participate in this public comment period for this project. Correctional officers are overworked at my facility [FCI Mendota]. I wish that the BOP would spend the money that it wants to use to build a new prison to properly staff this prison.”

Another plaintiff, Mark Jordan, currently incarcerated at USP Tucson, explained, “Just last week President Trump publicly announced his support for the First Step Act, a reform bill aimed at reducing the federal prison population. The Letcher County project flies directly in the face of this reform narrative.”

He continued, “Despite serious environmental and health hazards, the Justice Department solicited public comment from everyone except those most directly impacted by the project, the prisoners themselves. Health and safety issues aside, this is but a needless pork barrel project ushered through by Kentucky Representative Hal Rogers at a time when public opinion and policy-makers are trying to reduce the population of the federal prison system, not build more prisons merely for the sake of building more prisons.”

Prisoners aren’t the only ones concerned about the Letcher County facility. Local resident Elvenia Blair, who lives close to the proposed prison, has been contesting it for several years.

“Eastern Kentucky has the highest cancer rate in the nation. Forcing prisoners, correctional officers and their families to live, work and visit this environment is discrimination,” she declared.

Blair is a board member of Friends of the Lilley Cornett Woods and North Fork Watershed, one of several organizations that have expressed concerns about the impact of prison construction in Letcher County.

“With coal mining on its way out, the natural history of our mountains and wildlife is what we have left to attract people to the area,” she added. “That will be disturbed with barbed wire, shooting ranges, heavy traffic flow of transporting prisoners. We won’t see economic growth from this.”

National groups have also been critical of the potential environmental impacts of the prison. In an interview with Courthouse News, Tom Sexton with the Sierra Club of eastern Kentucky said it was a “travesty” to build a “half-million dollar monument to human misery” in Letcher County next to the rare, old-growth Lilley Cornett Woods.

In nearby Martin County, the Big Sandy federal prison also sits on a former mountaintop mining site. Sexton noted that Big Sandy’s tilting guard towers and partially sunken buildings have earned it the nickname “Sink-Sink” among locals.

“[P]eople are forced to live on these sites and we don’t know anything about the legacy costs,” Sexton said. “Is it really humane to subject people to that?”

Emily H. Posner, an attorney for the Campaign to Fight Toxic Prisons who represents the plaintiffs in the Letcher County suit, alongside the ALC, added, “Federal legislation indicates a downward trend in prison population. My clients are in agreement with local residents who feel that there are much better ways to generate federal support in Appalachian communities than wasting hundreds of millions on an unnecessary prison.”

The lawsuit remains pending. See: Barroca v. Bureau of Prisons, U.S.D.C. (D. DC), Case No. 1:18-cv-02740-JEB. 

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Sources: Courthouse News, www.fighttoxicprisons.org, www.law360.com, The Mountain Eagle

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