A federal appeals court on Wednesday threw out U.S. District Judge Charles H. Haden II's second effort to strictly limit mountaintop removal coal mining.
In doing so, the 4th U.S. Circuit Court of Appeals paved the way for more permits to bury Appalachian streams beneath huge valley fill waste piles.
The court overturned an injunction, issued by Haden in May 2002, that blocked the U.S. Army Corps of Engineers from authorizing valley fills not proposed as part of post-mining land development plans.
In a 44-page decision, the 4th Circuit concluded that the federal Clean Water Act does not prohibit such fills.
Writing for the court, Judge Paul V. Niemeyer said that Haden's ruling not only exceeded a district court's authority, but also misinterpreted the law.
In a concurring opinion, Judge J. Michael Luttig criticized what he called Haden's "utterly bewildering treatment of this relatively straight-forward case.
"It misses the mark to say ... that the district court's injunction was 'overbroad,'" Luttig wrote in his 11-page opinion. Judge Clyde Hamilton also took part in the case, and signed onto Niemeyer's opinion.
Wednesday's decision is the second time in as many years that the appeals court has overruled Haden in a major mountaintop removal case.
The first ruling, issued by Haden in October 1999, said that a rule that prohibits mining with 100 feet of certain streams outlawed valley fills in those streams.
In April 2001, Luttig and Niemeyer were part of a three-judge panel that overturned that decision. The 4th Circuit threw out that ruling on technical grounds over which court the case belonged in, and never decided if Haden was right or wrong on the merits.
Both of Haden's decisions have been harshly criticized by the coal industry and many West Virginia political leaders.
Nearly two-thirds of West Virginia's coal production still comes from underground mining. But in the state's Southern coalfields, many major operators favor mountaintop removal to extract the region's valuable low-sulfur reserves.
In mountaintop removal, coal companies blast off entire hilltops to uncover these reserves. Giant shovels and trucks move in to remove the coal. Leftover rock and dirt - the stuff that used to be the mountains - is shoved into nearby valleys, burying streams.
As part of a still-unpublished study, federal agencies found that, between 1985 and 1999, mountaintop removal buried at least 562 miles of Appalachian streams.
In drafts of the study, government experts found that, without tougher regulation, mountaintop removal will eventually destroy 350 square miles of the region's forests.
The West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition have aggressively fought mountaintop removal.
But Haden's latest ruling involved a lawsuit filed by a Kentucky group, Kentuckians for the Commonwealth.
In August 2001, lawyers for KFTC sought to block a mining application that would bury more than 6 miles of streams in Martin County, Ky.