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Conservative court to decide mountaintop removal case

Last year, The New York Times called the 4th U.S. Circuit Court of Appeals "the boldest conservative court in the United States."

The 4th Circuit rarely grants new hearings in death-penalty cases. It allows states to severely restrict abortion. Its justices frequently clamp down on the federal government in favor of states' rights.

In February 1999, the 4th Circuit threw out one of the best-known Supreme Court decisions of the century, Miranda vs. Arizona, under which criminal suspects are notified of their legal rights.

Several times, the 4th Circuit has been so conservative that the Republican-dominated Supreme Court has overturned it.

Times correspondent Neil A. Lewis declared that the court, which covers five mid-Atlantic and Southern states, "has in recent years evolved into the kind of bench that staunch conservatives had hoped to create at the Supreme Court, but never quite achieved despite 12 years of Republican appointments under presidents Ronald Reagan and George Bush."

This week, this same court will hear an appeal of a West Virginia federal judge's ruling to curb mountaintop removal coal mining.

On Thursday, a three-judge panel from the Richmond, Va.-based court will consider appeals filed by the state, the coal industry and the United Mine Workers union.

No one can say for sure how the court will rule.

Publicly, lawyers in the case won't comment on a group of judges that hasn't made its decision yet. Privately, though, these lawyers say that the 4th Circuit's rightward tilt - not to mention its strong belief in states' rights - could spell trouble for the Haden decision.

Some of the 4th Circuit's rulings in environmental and public health cases do little to encourage the citizen group lawyers who support the Haden ruling.

For example, in a 1998 case called U.S. vs. Wilson, the 4th Circuit offered a very narrow interpretation of the federal government's authority to regulate damage to wetlands.

Over the last few years, the 4th Circuit has led judicial efforts to limit the rights of citizens to go to federal court to enforce environmental laws.

In 1998, the court ruled that an environmental group had no standing to seek civil penalties under the Clean Water Act against the operator of a hazardous waste incinerator who had committed more than 1,800 permit violations.

The court said that once a district judge decided not to ban future violations, the only remaining remedy - a fine - would not benefit the environmental groups because it would be paid to the federal government.

In January 1999, the Supreme Court overturned that decision.

"Congress had found that civil penalties in the Clean Water Act cases do more than promote immediate compliance ... they also deter future violations," Justice Ruth Bader Ginsberg wrote for the court.

Also in 1998, the 4th Circuit gave the tobacco industry a major legal victory. It ruled that the Food and Drug Administration could not regulate nicotine as a drug.

In the Haden appeal, coal industry lawyers cited that case as a precedent in their favor.

In the tobacco case, the court said that the FDA could not suddenly reverse its longstanding position that nicotine was not a drug. In the mining case, coal lawyer R. Hewitt Pate asked the 4th Circuit to ignore the federal government's new stance that the buffer zone rule does apply to valley fills.

Pate wrote that, in the tobacco case, the 4th Circuit "refused to defer to another federal agency that succumbed to political expediency and abandoned a longstanding interpretation with no change in the text being interpreted.

"This case presents even stronger reasons why the new agency position lacks no only entitlement to deference, but even 'the power to persuade,'" Pate wrote.

In their appeal of Haden's ruling, Division of Environmental Protection lawyers cited favorably a 1993 4th Circuit ruling that blocked West Virginia regulators' efforts to shut down a hazardous waste incinerator.

Then-Attorney General Mario Palumbo tried to halt the Waste Technologies Industries incinerator. The facility was built in East Liverpool, Ohio, across the Ohio River from Chester in Hancock County.

The 4th Circuit threw out the case. It said Palumbo had to challenge a federal permit for the waste burner through a U.S. Environmental Protection Agency administrative panel, instead of a citizen suit in federal court.

"This court has refused to allow environmental citizen suits to circumvent the administrative processes for challenging permitting decisions," wrote DEP lawyer Ben Bailey. "This court stressed the dangers of allowing citizen suits to be used to mount collateral attacks on permitting decisions."

Ironically, the conservative 4th Circuit made a ruling that was relied on heavily by citizen groups who filed the suit that led to Haden's mountaintop removal ruling. In 1991, the court upheld a decision by U.S. District Judge John T. Copenhaver that rock and dirt removed to uncover coal seams is "waste" under the federal Clean Water Act.

"The discharge of fill material at issue here is expressly for the purpose of disposing of waste or spoil from the mining operations," the court said in West Virginia Coal Association vs. Reilly.

In his October 1999 decision, Haden cited that case when he blocked the Army Corps of Engineers from issuing further "dredge-and-fill" permits for valley fills.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.


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