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U.S. court hears appeal on W.Va. valley fills

By Staff, wire reports

RICHMOND, Va. - A lawyer for the U.S. Army Corps of Engineers told a federal appeals court Tuesday that the agency met all the legal requirements for issuing permits to a coal company to fill valleys with rubble from blasting the tops off West Virginia mountains.

An attorney for an environmental group disagreed, arguing that a federal judge correctly ruled that the corps failed to adequately assess possible environmental damage before issuing mountaintop removal permits to four mines operated by subsidiaries of Richmond, Va.-based Massey Energy.

The corps and the coal companies are appealing U.S. District Judge Robert C. Chambers' 2007 ruling to the 4th U.S. Circuit Court of Appeals. A three-judge panel heard from both sides during a 75-minute hearing. The court usually takes several weeks to rule.

The lawsuit was filed by the Ohio Valley Environmental Coalition and two other environmental groups, which said the corps should have performed more extensive environmental reviews before issuing permits allowing Massey to fill valleys with dirt, rocks and other material blasted from mountaintops to expose coal seams.

Joe Lovett, an attorney for the environmental groups, said the permits allowed 23 valley fills and affected 12 miles of streams. He said the corps was required to conduct both a structural analysis - which he described as "a snapshot'' - and a functional analysis of how streams would be affected over time. The corps conducted only the former, he said. "The corps simply failed in its duty to assess function,'' Lovett said.

Corps attorney Michael Gray countered that the structural analysis provided all the information that was needed to determine whether a permit should be issued. He said the corps was allowed to rely on its "best professional judgment'' because it lacked funding to conduct the functional analysis.

Judge M. Blane Michael seemed unswayed by that argument, telling Gray the lack of money "does not give you a pass.''

Michael's participation Tuesday marks the first time that one of West Virginia's 4th Circuit judges has taken part in a three-judge panel hearing a mountaintop removal case. The other two judges on Tuesday's panel were Roger Gregory and Dennis Shedd.

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.

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 Michael and Judge Robert B. King, also from West Virginia, 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 mountaintop removal cases, in large part because many of the other judges recused themselves, court officials have said.

King and Gregory were appointed by 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.

Also Tuesday, the two sides disagreed on whether the corps properly assessed the cumulative effect of the valley fills. Gray said the corps concluded that the cumulative effect would be insignificant, but Lovett argued that there was no evidence in the record to support such a conclusion.

- From staff, wire reports


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