Read the ruling here.
CHARLESTON, W.Va. -- A federal appeals court has upheld a decision that cleared the way for a Clean Water Act permit needed for a new mountaintop removal mine in Logan County.
On Wednesday, a 4th U.S. Circuit Court of Appeals panel affirmed an August 2012 ruling in which U.S. District Judge Robert C. Chambers did not revoke the permit issued by the federal Army Corps of Engineers.
Judge Paul V. Niemeyer said the agency decision satisfied federal legal requirements that it take a "hard look" at the potential impacts of mining.
"Our review is limited, and we may not use review of an agency's environmental analysis as a guise for second-guessing substantive decisions committed to the discretion of the agency," Niemeyer wrote.
The "dredge-and-fill" permit is part of Alpha subsidiary Highland Mining's proposal for the 635-acre Reylas Surface Mine near Ethel in Logan County.
"It's rewarding to us to see that the courts have multiple times cast aside the unfounded arguments of a small number of special interest groups who wish to stop coal at all costs," said Ted Pile, a spokesman for Alpha. "Who wins in this ruling are really the communities of Appalachia that are able to preserve high-paying mining jobs and enjoy the economic benefits that come with a properly run, well-regulated business."
The Alpha permit ruling comes three weeks after a pair of federal appeals court mountaintop removal decisions -- concerning the U.S. Environmental Protection's veto of the Spruce Mine in West Virginia and a broad permit challenge out of Kentucky that went to the Cincinnati-based 6th Circuit -- that went against the coal industry.
At its Reylas Mine, Alpha 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.
Chambers refused to allow the Ohio Valley Environmental Coalition and other citizen groups to introduce as evidence peer-reviewed studies that show residents living near mountaintop removal face increased risk of serious illnesses, including cancer and birth defects.
After a four-day trial in May 2012, Chambers found citizen groups presented "un-refuted evidence" about mining's damage to water quality and raises serious questions about whether such damage can be mitigated. But, Chambers said his hands were tied by a 2009 ruling in which the 4th Circuit said he should have deferred to the corps, rather than overturn four mountaintop removal permits issued by the corps.
That 2009 ruling marked the fourth time between 2001 and 2009 that the Richmond, Va.-based appeals court had overturned three different federal judges from West Virginia in rulings that would have curbed mountaintop removal.