CHARLESTON, W.Va. -- For the fourth time in eight years, a federal appeals court has overturned a court ruling that would have required more thorough permit reviews of mountaintop removal coal-mining operations.
The 4th U.S. Circuit Court of Appeals decision, issued Friday in Richmond, Va., was a major victory for the coal industry, and a huge setback for environmental groups that want to stop or seriously limit large-scale strip mining across Appalachia.
By a 2-1 vote, a 4th Circuit panel concluded that U.S. District Judge Robert C. Chambers wrongly did not defer to the federal Army Corps of Engineers' decision to issue Clean Water Act permits for four Massey Energy operations to bury streams.
"In matters involving complex predictions based on special expertise, a reviewing court must generally be at its most deferential," wrote Judge Roger Gregory in a 74-page opinion on behalf of himself and Judge Dennis Shedd.
Gregory and Shedd also ruled that Chambers wrongly determined the corps should have considered environmental effects beyond the direct impacts on the streams being filled. Those other effects - on surrounding valleys and forests - are best left to be regulated by state agencies under the federal strip mine law, Gregory and Shedd concluded.
Judge M. Blane Michael of West Virginia dissented from parts of the decision that found the corps had rightly concluded the mining operations in question would cause no significant environmental degradation.
"Today's decision will have far-reaching consequences for the environment of Appalachia," Michael wrote. "It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions."
Bill Raney, president of the West Virginia Coal Association, called the 4th Circuit decision "good news" for the industry and its employees.
"It's news that is most welcome to all of the families who depend on the coal industry," Raney said Friday afternoon.
Jeff Gillenwater, a spokesman for Richmond-based Massey, also praised the decision.
"This should put an end to much of the uncertainty regarding the issuance of surface mine permits," Gillenwater said.
Steve Roady, an Earthjustice lawyer who represented citizen groups in the case, said efforts to stop mountaintop removal would continue, despite the legal setback.
CHARLESTON, W.Va. -- For the fourth time in eight years, a federal appeals court has overturned a court ruling that would have required more thorough permit reviews of mountaintop removal coal-mining operations.
The 4th U.S. Circuit Court of Appeals decision, issued Friday in Richmond, Va., was a major victory for the coal industry, and a huge setback for environmental groups that want to stop or seriously limit large-scale strip mining across Appalachia.
By a 2-1 vote, a 4th Circuit panel concluded that U.S. District Judge Robert C. Chambers wrongly did not defer to the federal Army Corps of Engineers' decision to issue Clean Water Act permits for four Massey Energy operations to bury streams.
"In matters involving complex predictions based on special expertise, a reviewing court must generally be at its most deferential," wrote Judge Roger Gregory in a 74-page opinion on behalf of himself and Judge Dennis Shedd.
Gregory and Shedd also ruled that Chambers wrongly determined the corps should have considered environmental effects beyond the direct impacts on the streams being filled. Those other effects - on surrounding valleys and forests - are best left to be regulated by state agencies under the federal strip mine law, Gregory and Shedd concluded.
Judge M. Blane Michael of West Virginia dissented from parts of the decision that found the corps had rightly concluded the mining operations in question would cause no significant environmental degradation.
"Today's decision will have far-reaching consequences for the environment of Appalachia," Michael wrote. "It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions."
Bill Raney, president of the West Virginia Coal Association, called the 4th Circuit decision "good news" for the industry and its employees.
"It's news that is most welcome to all of the families who depend on the coal industry," Raney said Friday afternoon.
Jeff Gillenwater, a spokesman for Richmond-based Massey, also praised the decision.
"This should put an end to much of the uncertainty regarding the issuance of surface mine permits," Gillenwater said.
Steve Roady, an Earthjustice lawyer who represented citizen groups in the case, said efforts to stop mountaintop removal would continue, despite the legal setback.
"This fight is not over until mountaintop removal mining is over," Roady said. "We will continue to litigate and, in addition, the new administration must take immediate steps to curb the terrible practice of mountaintop removal and undo the mistakes of the past."
In mountaintop removal, coal operators use explosives to blow up mountaintops and uncover valuable, low-sulfur coal reserves. Leftover rock and dirt - the stuff that used to be the mountains - is dumped into nearby hollows, burying streams.
Between 1985 and 2001, mine operators buried 724 miles of Appalachian streams, according to a federal government study published in 2003. A more recent study found that permits issued between October 2001 and June 2005 would likely bury another 357 miles of the region's waterways.
Chambers had ruled in March 2007 that the corps did not properly consider the environmental impacts before issuing Clean Water Act permits for mountaintop removal mines to bury streams.
The judge had found that the corps' methods for examining permit applications were severely lacking, especially how the corps measures the ecological loss of burying small headwaters streams. Chambers blasted the corps for consistently finding - without any scientific basis - that sediment ditches built on mine sites can be turned into man-made streams that adequately replace the headwaters creeks that are buried by mining.
In its Friday ruling, the 4th Circuit acknowledged that the corps lacks a clear-cut protocol for assessing these matters. But Gregory and Shedd ruled that the agency is entitled to simply use "the best professional judgment of its staff to assess aquatic impacts and potential mitigation measures."
"The problem is that the corps and the court are not listening to the scientists," said Jim Hecker, environmental enforcement director for Public Justice, which also represented the citizen groups.
"The scientists tell us that the plans to mitigate stream losses have no scientific basis," Hecker said. "The court gave blanket deference to the corps bureaucrats, and none to the contrary opinions of stream scientists."
Environmental groups could ask for a rehearing by the entire 4th Circuit, and could also appeal to the U.S. Supreme Court.
Reach Ken Ward Jr. at kw...@wvgazette.com
or 304-348-1702.
In West Virginia, mining companies are literally moving mountains to uncover valuable, low sulfur coal reserves.
Mountaintop removal has become the dominant form of surface mining in the state. Coal operators are blasting off hilltops, and dumping leftover rock and dirt into nearby valleys.
An untold amount of the state has been flattened, and hundreds of miles of streams have been buried. Find out more in this Special Report.
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