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JUDGES GRILL LAWYERS IN MINING CASE

RICHMOND, Va. - Federal appeals judges on Monday offered mixed reviews of the latest court decision more strictly regulating mountaintop removal coal mining.

A three-judge panel of the 4th U.S. Circuit Court of Appeals grilled lawyers in the challenge of a July 2004 ruling by U.S. District Judge Joseph R. Goodwin in Charleston.

Judges Paul V. Niemeyer and J. Michael Luttig led the questioning, with criticism of the way the U.S. Army Corps of Engineers issued its permit for mountaintop removal valley fills.

Both wondered aloud whether the corps had ever determined that mountaintop removal mining causes the minimal impacts required for it to be approved through a streamlined permitting process.

"When did the [corps] make that determination?" Niemeyer asked Elizabeth Kessler, a lawyer for the corps. "You didn't look at a single fact to make that determination."

Luttig expressed frustration when Kessler could not immediately recite exactly when and on what basis the corps determines that mining fills have only minimal impacts.

"Otherwise, this looks like it is just a complete sham," Luttig said.

Over the last four years, Niemeyer and Luttig - appointees of the first President Bush and two of the 4th Circuit's most conservative judges - have twice sat on panels that overturned decisions that would have limited mountaintop removal. Niemeyer wrote both of those decisions, which threw out 1999 and 2002 rulings by the late U.S. District Judge Charles H. Haden II.

On Monday, U.S. District Judge Robert J. Conrad filled in the third spot on the appeals court panel. Conrad, a judge in the Western District of North Carolina, was appointed to the federal bench earlier this year by President George W. Bush.

The judges heard arguments for about 75 minutes in the federal courthouse across the street from the state Capitol in Richmond.

In the case, the Bush administration and the coal industry are challenging Goodwin's ruling that the corps can no longer approve mountaintop removal valley fills through a streamlined process that allows little public scrutiny.

Under the federal Clean Water Act, the corps can issue two types of fill permits: individual and nationwide, or general, permits.

Individual permits cover specific fill proposals. Before issuing them, the corps conducts "case-by-case" evaluations of potential environmental impacts.

General permits cover categories of activities, and are issued on a regional, statewide or nationwide basis. When it issues general permits, the corps spells out the general conditions that a particular category of activity should meet. Then, companies seek authorization for specific projects. If they promise to meet the general conditions, their projects are authorized with much less review than individual permits.

Under the law, general permits are allowed to be used only for activities that "will cause only minimal adverse effects when performed separately, and will have only minimal cumulative effects on the environment."

For years, the corps approved coal mining valley fills through a general permit called Nationwide Permit 21.

In a series of rulings starting July 8, 2004, Goodwin blocked that practice. The judge ruled that the corps could not use NWP 21, because it had never concluded that mining fills caused only minimal impacts.

As a result, coal companies have been forced to undergo more rigorous review to obtain individual permits. Coal production is up in 2005 and so far this year, the corps has issued nearly two dozen individual permits for mining operations.

But the industry and the administration appealed, with government officials arguing that Goodwin's ruling would "substantially curtail" coal production in West Virginia.

In arguments Monday, Luttig said the corps has supported its actions with a "nonsensical argument" - that mining fills will not cause greater than minimal impacts, because if they did that would violate the law, and the corps would never allow anything that violated the law.

"History doesn't support you, because people operate outside the law all the time," Luttig said. "Even by Washington standards, that's pretty incredible."

Niemeyer tried to offer the corps a way out of the situation, noting that the Clean Water Act says the agency can approve nationwide permits "if" the environmental effects are minimal.

In this case, Niemeyer said, the word "if" may not necessarily mean "before." That would mean the corps would not have to make a minimal-effects determination before approving the nationwide permit, Niemeyer said.

Michael Shebelskie, a lawyer for various coal industry groups that intervened in the case, agreed.

"'If' is ambiguous," Shebelskie said. "'If' allows administrative flexibility in determining the sequencing of it."

Jim Hecker, a lawyer for the Ohio Valley Environmental Coalition, argued that the corps has never - either before or after issuing NWP 21 - determined that the cumulative effects of valley fills are minimal.

"If you look through that document, they say 23 times that they are not making a determination," Hecker said, pointing to the corps' permit documents.

Niemeyer responded that the corps is doing case-by-case analysis of each mining project that seeks authorization under NWP 21 to ensure that the effects are minimal.

"Why are you in court if the corps is clearly doing more than it is required to do?" Niemeyer said.

Conrad noted that this process by the corps does not allow for the same sort of public review and comment as required for individual permits.


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