Coal Tattoo

Breaking news: Rehearing denied in MTR case


Photo by Antrim Caskey

Just in from Richmond, Va. — The 4th U.S. Circuit Court of Appeals has denied a petition from environmental groups to reconsider its ruling overturning a lower court decision that would have curbed mountaintop removal coal mining.

I’ve posted a copy of the 4th Circuit’s decision here.

To briefly catch readers up:

Back in March 2007, U.S. District Judge Robert C. Chambers in Huntington has issued a ruling that required the federal Army Corps of Engineers to perform more detailed environmental reviews before it issued Clean Water Act permits for mountaintop removal valley fills.  The coal industry and the Bush administration appealed (with help from a friend of the court brief from West Virginia Gov. Joe Manchin). And in February, a three-judge panel of the 4th Circuit overturned Chambers’ decision.

After that, citizen groups filed a petition asking the full 4th Circuit to rehear the case. That’s what today’s ruling deals with.

The vote to not rehear the case was 4-3, with the other four judges (of 11 full-time appeals court members) not participating.

Those voting in favor of rehearing were: J. Harvie Wilkinson III, M. Blane Michael, and Diana Motz. Those voting against rehearing were: Paul V. Niemeyer, Roger Gregory, Dennis Shedd, and Allyson Duncan.

The judges who didn’t participate were: Chief Judge Karen Williams, William Traxler, Robert B. King, and G. Steven Agee.

A couple of interesting things about this:

— Gregory and Shedd were the two judges on the three-judge panel who voted to overturn Chambers’ decision. Both voted against rehearing the case.

— Michael, one of the court’s two West Virginia members, dissented in that 2-1 vote to overturn Chambers. Michael voted to rehear the case.

— King, the other West Virginia member of the court, did not participate in consideration of the rehearing. This seems odd, given that King previously wrote an eloquent dissent (joined in by Michael and Motz) on a motion to rehear a 4th Circuit ruling overturning a previous mountaintop removal ruling by U.S. District Judge Joseph R. Goodwin.

— The 4th Circuit’s opinion issued today does not explain why King, Williams, Traxler and Agee did not participate. But I’ve written before about how a large number of recusals have led to very conservative panels hearing mountaintop removal cases over in Richmond.

— Don’t forget that the Obama administration supported the Bush administration’s appeal, by urging the 4th Circuit not to reconsider this case.