“It is often easier in the short run to diminish natural resources, but then environmental degradation is so often the product of short-sightedness.”

— Judge J. Harvie Wilkinson

Today’s decision by the 4th U.S. Circuit Court of Appeals not to reconsider its latest mountaintop removal decision is a loss for environmental groups and citizens who are fighting this  practice.

But the eight-page order from the Richmond, Va.-based court is worth giving a read, especially is you take the time to look at the dissents by Judge M. Blane Michael  (left) and J. Harvie Wilkinson (above), both of whom wanted the full 4th Circuit to rehear the case.

Michael, a Clinton appointtee, noted that U.S. Army Corps of Engineers regulations require the agency to assess both stream structure and stream function before it approves Clean Water Act permits for valley fills that would permanently bury those streams. The Corps’ “failure to assess stream function in this case and its later claim that an assessment of stream structure provides an adequate substitute cannot amount to a permissible construction of the regulations.”

Michael continued:

The ecological impact of filling headwater streams with mining overburden is both profound and irreversible.

As the Corps itself acknowledges, “[i]t is well understood that the health of entire watersheds [is] dependent on functions provided by headwater streams.” The Corps goes on to explain that headwater streams provide a number of  “important functions” including maintenance of natural discharge regimes, regulation of sediment export, retention of nutrients, processing of terrestrial organic matter, and exportation of water nutrients and organic matter to downstream areas. The Corps does not credibly claim to have measured these functions for the permits at issue in this case.

Because the long-term environmental impacts of destroying headwater streams are not yet fully understood, permitting the filling of these streams without requiring the Corps to comply with its clear duty to assess functional impacts fatally undercuts the purpose of the regulation.

Judge Roger Gregory, another Clinton appointee, responded for the 4-3 majority that refused to rehear the case:

I recognize and am sympathetic to the significant impact that surface mining has had on Appalachian ecology, but the panel in this case was not called upon to assess the wisdom of that practice. In fact, the scope of our review of environmental challenges to mountaintop removal mining is exceedingly limited given both the complicated statutory regime put in place to regulate that activity and our own circuit precedent.

But the most interesting stuff was in the dissent written by Wilkinson, a conservative judge appointed by President Reagan. Wilkinson explained his view that, “When one peels away some of the technical language and ‘internal guidance documents,’ it seems to me that the Corps has been fudging on an essential element of its own regulations.” He continued:

Indeed, the government’s protestation that it will only now work to develop a stream function assessment protocol comes mighty close to an admission that it has not been acting properly in its permitting processes. And the potentially irreversible effects that the permitted operations will have on the Appalachian ecosystem make en banc review appropriate in this case.

Wilkinson agreed with Michael that “the Corps’ failure to identify and measure the impact of mining operations on stream function poses a real danger to the vitality of the waterways and ecology of the affected areas.” He went on:

…The requirements of the Clean Water Act are important. It is often easier in the short run to diminish natural resources, but then environmental degradation is so often the product of short-sightedness. Our circuit is experiencing this first-hand. West Virginia is witnessing in the Appalachian headwaters the long, sad decline that Virginia and Maryland have seen with the Chesapeake Bay. Once the ecologies of streams and rivers and bays and oceans turn, they cannot easily be reclaimed. Most often than not, the waterway is simply gone for good.