Coal Tattoo

Groups seek to block Alpha permit during appeal

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HUNTINGTON, W.Va. — Handed a negative ruling from U.S. District Judge Robert C. Chambers on an Alpha Natural Resources mountaintop removal permit, citizen groups are now hoping the judge will block the mine temporarily — at least long enough for them to have a chance to get an appeal heard by the 4th U.S. Circuit Court of Appeals.

This morning, lawyers for the Ohio Valley Environmental Coalition and other groups asked Judge Chambers to issue an emergency injunction in the matter, arguing that if work begins at Alpha’s Highland Reylas Surface Mine, an appeal concerning the operation’s Clean Water Act “dredge-and-fill” permit might be pointless. Once the stream is buried, they feared, the case would be moot.

Alpha has apparently agreed to hold off any mining until Aug. 27, giving Judge Chambers time to schedule a more detailed injunction hearing next Thursday morning.

I’ve posted a copy of OVEC’s legal brief seeking the injunction here. The other parties — The U.S. Army Corps of Engineers and Alpha — have until early next week to file their responses.

Keep in mind that to get this type of injunction, OVEC’s lawyers will have to show: They are likely to succeed on the merits of their appeal, they are likely to suffer irreparable harm in the absence of the injunction, that the balance of equities tips in their favor, and that the injunction is in the public interest.

Long-time followers of mountaintop removal litigation know that the 4th Circuit has been where previous West Virginia court rulings — by Judges Charles Haden, Joseph R. Goodwin and Judge Chambers — aimed at curbing mountaintop removal go to be overturned (see here, here, here and here).   But remember that the 4th Circuit now has six new members appointed by President Obama. The Baltimore Sun explained in a story late last year:

The federal appellate court that covers Maryland has for years been considered one of the more right-leaning in the nation, finding that women can be banned from a military institute, that the FDA can’t regulate tobacco and that confessions count even when suspects haven’t been read their rights, among other conservative opinions.

But the 4th Circuit U.S. Court of Appeals now appears to have taken a left turn.

“There’s been a marked change,” said Ilya Shapiro, a senior fellow at the Cato Institute, a libertarian think tank in Washington. “Historically, this has been one of the most, if not the most, conservative circuits. Now it’s almost one of the most liberal.”