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State judge among those to hear mining case

By Staff, wire reports

RICHMOND, Va. -- A West Virginia judge who previously joined in criticism of lax federal regulation of mountaintop removal coal mining is part of the three-judge panel hearing a review of the latest court ruling on the issue.

Judge M. Blane Michael and two other judges heard oral arguments on the case today in Richmond, Va. The other two judges on the panel were Roger Gregory and Dennis Shedd.

Bush administration lawyers, Massey Energy and coal industry groups are appealing two 2007 rulings by U.S. District Judge Robert C. Chambers to toughen regulation of mountaintop removal.

Chambers concluded in one ruling that the U.S. Army Corps of Engineers had not fully evaluated the potential environmental damage before approving four Massey permits. In the second order, Chambers ruled that the Clean Water Act does not allow coal operators to build in-stream sediment ponds at the bottom of valley fills.

This is the fourth major mountaintop removal ruling by a federal judge in West Virginia to go before the 4th Circuit. Appeals court panels in the three other cases overturned rulings that would have more strictly policed the practice.

Neither Michael nor the other West Virginia judge on the 4th Circuit -- Robert B. King -- served on panels that heard the previous three mountaintop removal cases.

But in 2006, the entire court was asked to reconsider a three-judge panel's decision to overturn a ruling by U.S. District Judge Joseph R. Goodwin that mandated more complete environmental reviews of mining permits considered by the corps.

The court voted 5-3 not to reconsider the case. But King and Michael issued a dissent that criticized lax regulation of mountaintop removal. They were joined in the dissent by Judge Diana Gribbon Motz.

"This case is of exceptional importance to the nation and, in particular, to the states of the Appalachian region," said the dissent, written by King.

"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 coal mining authorized by the corps' general permit may irrevocably damage," the dissent said.

During that case, Shedd voted not to reconsider the panel's ruling. Gregory was among five of the court's judges who recused themselves because of unspecified "financial interests" that could have been affected by the case.

Two of the court's most conservative judges -- Paul V. Niemeyer and J. Michael Luttig -- both served on all three previous panels, in large part because many of the other judges recused themselves, court officials have said.

King and Gregory were appointed to President Clinton. Shedd was appointed to a district court by President George H.W. Bush, and to the 4th Circuit by President George W. Bush.


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