Coal Tattoo

A dissenting voice …


The latest mountaintop removal case marks a first: For the first time, a judge from West Virginia served on the three-judge panel that considered whether coal companies should be more closely regulated when they want to blow apart the state’s mountains and bury its streams with coal-mining waste. (Thanks to Viv Stockman at OVEC for the photo above).

mblanemichael.jpgJudge M. Blane Michael had previously joined in a dissent (with West Virginia’s other 4th Circuit member, Robert King) when another mountaintop removal case went to a hearing before the entire appeals court.

On Friday, Michael dissented from a key part of the 4th Circuit ruling that overturned Judge Robert C. Chambers March 2007 mountaintop removal decision.

You can read the full dissent starting on page 67 of the 4th Circuit decision, which I’ve posted here.

But here’s just a taste of it:

Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwaters streams is irreversible or that headwater streams provide crucial ecosystem functions.

Further, the cumulative effects of the permitted fill activities on local streams and watersheds are considerable. By failing to require the corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources.

We should rescind the four permits at issue in this case until the corps complies with the clear mandates of the regulations.

First, the corps must adequately determine the effect that the valley fills will have on the function of the aquatic ecosystem. Second, based on this determination, the corps must certify that the fills, after mitigation is taken into account, will result in no significant degradation of waters of the United States and no significant adverse impact to the human environment.