HUNTINGTON, W.Va. -- Coal industry lawyers are hoping to combine the results of several recent court cases to significantly narrow the ability of citizen groups to block new mountaintop-removal mining permits in federal court.
Lawyers for Alpha Natural Resources outlined their strategy last week during a hearing before U.S. District Judge Robert C. Chambers, who is considering citizen group challenges to at least two permits issued by the U.S. Army Corps of Engineers.
Shane Harvey, a former Massey Energy Co. general counsel now representing Alpha, argued that a trio of federal court cases leaves Chambers with very little ability to overrule a permit approval from the corps.
The rulings -- a district court ruling, an appeals court decision and a U.S. Supreme Court opinion -- show federal judges should "defer to the corps' review" of applications for Clean Water Act "dredge-and-fill" permits, Harvey said in a legal brief.
Chambers did not immediately agree, and questioned Harvey in detail about parts of the industry's analysis. Obama administration lawyers, representing the corps at the hearing, also argued a similarly narrow view, saying Chambers should not hear detailed evidence from academic experts working with citizen groups in the case.
At issue is a permit the corps granted to Alpha subsidiary Highland Mining for its 635-acre Reylas Surface mine near Ethel in Logan County.
The company hopes to employ about 100 people for six years of mining, and then create a 235-acre site with paved roads and utilities that could be used for temporary housing during flooding and other emergencies. The mine, though, would bury about 2.5 miles of streams beneath a valley fill and associated runoff-control structures.
Citizen groups argue that the mine would add to existing pollution problems in the Dingess Run watershed, and that the corps did not allow public input on the company's proposal to mitigate mining damage. At Alpha's request, Chambers blocked an effort by citizen groups to also argue that the mine would add to existing public health problems recent scientific papers have linked to living near mountaintop-removal mining.
Also pending before Chambers is the Ohio Valley Environmental Coalition's challenge of a corps-issued permit for Loadout LLC to operate its Nellis Surface Mine in Boone County.
Under state and federal laws, mining operations must obtain a variety of permits, including surface-mining and water-discharge permits issued by the state Department of Environmental Protection, and fill permits handled by the corps.
While the Obama administration's crackdown on mountaintop removal slowed the issuance of new strip-mining permits across Appalachia, the U.S. Environmental Protection Agency has given its blessing to some corps-issued permits and not stepped in to block others.