A federal appeals court declined Friday to reconsider its decision to overturn a lower-court ruling that would have toughened permit reviews for mountaintop-removal coal mining.
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CHARLESTON, W.Va. -- A federal appeals court declined Friday to reconsider its decision to overturn a lower-court ruling that would have toughened permit reviews for mountaintop-removal coal mining.
The 4th U.S. Circuit Court of Appeals voted 4-3 not to have the full circuit rehear a three-judge panel decision that overturned the lower-court ruling by U.S. District Judge Robert C. Chambers.
"I recognize and am sympathetic to the significant impact that surface mining has had on Appalachian ecology, but the panel in this case was not called upon to assess the wisdom of that practice," Judge Roger Gregory wrote for the majority.
Gregory was part of a 2-1 majority that voted in February to overturn a series of 2007 orders by Chambers that required the federal Army Corps of Engineers to conduct more rigorous permit reviews before approving the burial of streams beneath valley-fill waste piles.
Judge M. Blane Michael, one of two West Virginia judges on the 4th Circuit, dissented in that February case and in the court's Friday ruling not to reconsider the matter.
Michael explained that the Corps did not comply with its own regulations requiring agency officials to consider potential lost stream function before approving mining activity that would bury streams.
"Because the long-term environmental impacts of destroying headwater streams are not yet fully understood, permitting the filling of these streams without requiring the Corps to comply with its clear duty to assess functional impacts fatally undercuts the purpose of the regulations," Michael wrote in Friday's decision.
Joining Michael in dissenting on the rehearing denial were J. Harvie Wilkinson and Diana Motz.
Wilkinson, a Reagan appointee, wrote his own spirited dissent, in which he compared the damage done by mountaintop removal to the pollution-caused declining health of Chesapeake Bay.
Read more in Coal Tattoo
Read the ruling
CHARLESTON, W.Va. -- A federal appeals court declined Friday to reconsider its decision to overturn a lower-court ruling that would have toughened permit reviews for mountaintop-removal coal mining.
The 4th U.S. Circuit Court of Appeals voted 4-3 not to have the full circuit rehear a three-judge panel decision that overturned the lower-court ruling by U.S. District Judge Robert C. Chambers.
"I recognize and am sympathetic to the significant impact that surface mining has had on Appalachian ecology, but the panel in this case was not called upon to assess the wisdom of that practice," Judge Roger Gregory wrote for the majority.
Gregory was part of a 2-1 majority that voted in February to overturn a series of 2007 orders by Chambers that required the federal Army Corps of Engineers to conduct more rigorous permit reviews before approving the burial of streams beneath valley-fill waste piles.
Judge M. Blane Michael, one of two West Virginia judges on the 4th Circuit, dissented in that February case and in the court's Friday ruling not to reconsider the matter.
Michael explained that the Corps did not comply with its own regulations requiring agency officials to consider potential lost stream function before approving mining activity that would bury streams.
"Because the long-term environmental impacts of destroying headwater streams are not yet fully understood, permitting the filling of these streams without requiring the Corps to comply with its clear duty to assess functional impacts fatally undercuts the purpose of the regulations," Michael wrote in Friday's decision.
Joining Michael in dissenting on the rehearing denial were J. Harvie Wilkinson and Diana Motz.
Wilkinson, a Reagan appointee, wrote his own spirited dissent, in which he compared the damage done by mountaintop removal to the pollution-caused declining health of Chesapeake Bay.
"The requirements of the Clean Water Act are important," Wilkinson wrote. "It is often easier in the short run to diminish natural resources, but the environmental degradation is so often the product of short-sightedness.
"Our circuit is experiencing this first-hand," he wrote. "West Virginia is witnessing in the Appalachian headwaters the long, sad decline that Virginia and Maryland have seen with the Chesapeake Bay.
"Once the ecologies of streams and rivers and bays and oceans turn, they cannot be easily reclaimed," Wilkinson wrote. "More often than not, the waterway is simply gone for good."
Also voting not to reconsider the matter were Judges Paul Niemeyer, Dennis Shedd and Allyson Duncan.
Four other judges recused themselves from the case. They were Chief Judge Karen Williams and Judges William Traxler, Robert B. King and Steven Agee.
King, the other West Virginia judge on the court, had joined Michael in dissenting three years ago when the 4th Circuit voted not to reconsider a previous panel decision overturning a ruling by U.S. District Judge Joseph R. Goodwin to more tightly regulate mountaintop removal.
In that dissent, King wrote, "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."
On Friday, King declined to explain his specific reasons for disqualifying himself from the new case.
In mountaintop removal, coal operators use explosives to blow up mountains and uncover valuable low-sulfur coal reserves. Leftover rock and dirt -- the stuff that used to be the mountains -- is dumped into nearby hollows, burying streams.
Between 1985 and 2001, mine operators buried 724 miles of Appalachian streams, according to a government study published in 2003. A more recent study found that permits issued between October 2001 and June 2005 would likely bury another 357 miles of the region's waterways.
In his 2007 rulings, Chambers found that the corps' methods for examining permit applications were severely lacking, especially in how the agency measures the ecological loss of burying small headwater streams. Chambers blasted the corps for consistently finding -- without any scientific basis -- that sediment ditches built on mine sites can be turned into man-made streams that adequately replace headwater creeks buried by mining.
When the 4th Circuit overturned that decision, Gregory acknowledged that the corps lacked a clear-cut protocol for assessing these matters. But, the judge wrote, the agency is entitled to simply use "the best professional judgment of its staff to assess aquatic impacts and potential mitigation measures."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.
In West Virginia, mining companies are literally moving mountains to uncover valuable, low sulfur coal reserves.
Mountaintop removal has become the dominant form of surface mining in the state. Coal operators are blasting off hilltops, and dumping leftover rock and dirt into nearby valleys.
An untold amount of the state has been flattened, and hundreds of miles of streams have been buried. Find out more in this Special Report.
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in April 1865?
Well that's what happens when you have the corruption that is WV politics. We have the best legislature that money can buy.
Just because something is "legal" doesn't make it right. Not too long ago it was "legal" to own people. Thankfully, it was fought in the courts (yes, I said the courts) and those laws were overturned. Hopefully, the same can be said of the ones shielding the coal companies.
You people want to convict people for driving 70 even though it's perfectly legal simply because we would all be better off if everyone drove under the OLD guidelines of the law, 55 mph.
How dumb can smart people be?
But until then they can pillage and plunder pretty much at will.