Environmental group lawyers had been more hopeful this time, with six new judges appointed by President Obama sitting on the court.
But the case drew a panel of three judges appointed to the federal bench by Republican presidents. The judges included Niemeyer, who had written two of the previous 4th Circuit rulings supporting mountaintop removal practices.
"It's always been frustrating for us to watch the 4th Circuit rulings on these cases," said Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy. "Time and time again we have these experts come in an talk about the impacts, and it just seems to go right over the head of the corps and the 4th Circuit just takes and accepts that."
Appeals court panels are supposed to be selected randomly. But in previous mountaintop removal cases, the pool of judge was greatly limited by the recusal of judges with potential financial interests in the outcome.
In 2006, two of the judges who heard the Reylas case -- J. Harvie Wilkinson and William B. Traxler -- recused themselves when the full 4th Circuit reconsidered a mountaintop removal appeal.
It was not immediately clear if any of the 4th Circuit's judges recused themselves before the panel that heard the Reylas case was selected.
In the majority opinion, Niemeyer found "no merit" to the allegation that the corps "misapprehended" the baseline conditions in Dingess Run when concluding it was a healthy stream without existing mining impacts.
Concerning conductivity pollution, Niemeyer wrote that the corps "grappled with the issue extensively" and "rationally" determined that "the connection between conductivity and stream impairment was not strong enough to preclude a permit."
In a concurring opinion, Wilkinson said that he found EPA concerns and questions about the current condition of Dingess Run "troubling" aspects of the corps' permit review. But, Wilkinson said, those issues were "not enough to reverse," the corps or Chambers.
"Of course, the judiciary is not a rubber stamp on agency action, and there are times when contrary evidence will either not support or will actively undercut an agency's decision," Wilkinson wrote. "But this is not one of those cases."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.