Panel selection for mountaintop removal cases has become controversial, after the same two conservative judges - Paul V. Niemeyer and J. Michael Luttig - ended up on panels that overturned three previous district court rulings aimed at limiting the mining practice.
Appeals court panels are supposed to be chosen randomly. Three-judge panels are chosen ahead of time, but not publicly announced until the morning of argument hearings.
After the third appeal was heard, the court revealed that at least five of the court's 13 judges had recused themselves because of financial interests in the case.
Since then, Luttig has left his lifetime appointment to the court. He resigned in 2006 to take a job as general counsel for Boeing, after being passed over by President Bush for two open Supreme Court slots.
Connor refused Thursday to say if any of the current judges have recused themselves from the latest mountaintop removal appeal.
The two West Virginia judges on the 4th Circuit, Robert B. King and M. Blane Michael, have never served on an appeals panel in a mountaintop removal case. But in February 2006, King and Michael joined in a dissent when the full 4th Circuit declined to rehear one of the appeals.
"This case is of exceptional importance to the nation, and in particular, to the states of the Appalachian region," the dissent said. "The Appalachian mountains, the oldest mountain chain in the world, are one of the nation's richest, most diverse, and most delicate ecosystems, an ecosystem that the mountaintop removal coal mining authorized by the corps' general permit may irrevocably damage."
To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.