Coal Tattoo


Obama administration officials better figure out pretty soon what their game plan is for dealing with mountaintop removal coal mining … because a federal appeals court today gave them a deadline.

By April 14, Obama’s lawyers from the Department of Justice must respond to a motion for a rehearing of the 4th U.S. Circuit Court of Appeals’ decision overturning a mountaintop removal ruling by U.S. District Judge Robert C. Chambers.

Questions about Obama’s position and his plans for regulating mountaintop removal have been growing since the 4th Circuit’s decision on Feb. 14 — and have reached new levels in the last week, after the U.S. EPA announced plans for much closer reviews of Clean Water Act permits for valley fills.


The Lewis F. Powell U.S. Courthouse, Richmond, Va.

Over the last eight years, the Richmond, Va.-based 4th Circuit — considered the most conservative appeals court in the country –  has overturned four district court rulings from West Virginia that would have curbed mountaintop removal or at least required much more scrutiny of the process.

In fact, all five federal judges from West Virginia who have weighed in on mountaintop removal have all concluded the law requires much more rigid regulation of the practice. District Judges Charles H. Haden II, Joseph R. Goodwin, and Chambers have ruled that way at the trial court level. In Richmond, Judges M. Blane Michael and Robert B. King have done so.

(For those who don’t recall — most federal appeals court rulings are made by three-judge panels that are alleged selected randomly. After a panel decision, the losing party can ask for a rehearing “en banc.” The French term means “on the bench,” but in this case is refers to a rehearing by the full 4th Circuit, which is now 11 judges and 3 senior status judges).

Anyway, citizen groups lawyers filed a motion on Monday asking the full 4th Circuit to rehear an appeal of Judge Chambers’ March 2007 ruling.  On Feb. 14, a three-judge panel overturned Chambers’ decision, which essentially required more scrutiny by the Corps of Engineers before it issued valley fill permits. That panel ruled on a 2-1 vote, with Judges Roger Gregory, a Clinton appointee, and Dennis Shedd, a George W. Bush appointee, voting in the majority, and Michael, another Clinton appointee, voting to uphold Chambers’ decision.

Under federal appeals court rules, neither the government nor the coal industry would typically be allowed to file a response to this motion for rehearing. The rule actually reads:

Unless the court requests, no answer to a petition for panel rehearing is permitted. But ordinarily rehearing will not be granted in the absence of such a request. 

If the 4th Circuit were to grant a rehearing — and there is certainly no guarantee (far from it) that they will — the court then does one of three things: (a)make a final disposition of the case without reargument; (b) restore the case to the calendar for reargument or resubmission; or (c) issue any other appropriate order.

So far, though, all that has happened is that the 4th Circuit entered this order today, giving the other side (government and coal industry lawyers) until April 14 to respond to the rehearing petition.

For the record, environmental group lawyers sought rehearings in two of the three previous mountaintop removal cases. In neither case did the 4th Circuit ask the government and the industry to respond. Environmental groups lost both rehearing requests.

Stay tuned …