That 4th Circuit ruling is one of four decisions over the last decade in which the Richmond, Va.-based appeals court has overturned rulings by three different federal judges in West Virginia to curb mountaintop removal mining. Once considered the most conservative federal appeals court in the country, the 15-judge 4th circuit now has six new members appointed by President Obama.
In their court filing, citizen group lawyers argue, among other things, that Chambers was wrong to conclude that the corps correctly judged existing water quality downstream from the mine site as acceptable and able to absorb pollution from the operation.
The main stream in question, Dingess Run, is listed by the state Department of Environmental Protection as "impaired" and with a "poor" score on DEP's biological health testing system.
"It is simply impossible to square [the corps'] conclusion of good ecosystem health with the fact that the undisputed ... score in Dingess Run shows that its aquatic community is severely biologically impaired," the citizen group lawyers wrote.
The citizen group lawyers also noted that Chambers found they their scientific experts presented "unrefuted evidence" and "compelling" testimony which "thoroughly convinced" Chambers that large-scale surface mining damages downstream water quality and aquatic life. But, the judge ruled for the corps, even though the agency "attempted to deny" such science, without presenting any expert testimony of its own to support the permit issuance, the citizen group lawyers said.
Citizen group lawyers said that Chambers took the 4th Circuit's 2009 ruling requiring judges to defer to reasonable agency permitting decisions too far.
"This means that a court must usually defer to the agency's qualified experts, and need not resolve disagreements among experts," the citizen group lawyers wrote. "Conversely, it means that a court need not defer if the agency has not relied on any experts or expertise for its decision, and if there is no disagreement among qualified experts on the relevant issue. This latter scenario is what occurred here."
Government and company lawyers have until early next week to file responses to the citizen group injunction motion.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.