I just got off the phone after listening in to a conference call hearing held by U.S. District Judge Robert C. Chambers concerning the effort by citizen groups to block Alpha Natural Resources from beginning the mining work under its Clean Water Act permit for the Highland Reylas Surface Mine in Logan County, W.Va.

Recall that Judge Chambers ruled against the Ohio Valley Environmental Coalition and other groups, refusing — despite what he called “unrefuted evidence” about this type of mining’s impact on water quality — to block the Section 404 “dredge-and-fill” permit for the Alpha mine. Now, lawyers for OVEC, the Sierra Club, the West Virginia Highlands Conservancy, and Coal River Mountain Watch, are hoping to keep mining from starting long enough to appeal to the 4th U.S. Circuit Court of Appeals, where a significantly changed lineup of judges could perhaps rule differently than the old 4th Circuit that has overturned repeated lower court rulings aimed at curbing mountaintop removal.

But the appeal could be made moot, if mining moves forward before legal arguments can be made in Richmond, Va.  As Derek Teaney, an Appalachian Mountain Advocates lawyer for the citizen groups pointed out during today’s hearing, “This valley fill can’t be unconstructed.” Once the damage to the environment is done, the case really becomes kind of pointless.

And that’s where the problem comes in … because the issue now has become which legal test Judge Chambers should apply when deciding if he’ll block the mining until an appeal can be heard.

During in discussion of the recent court ruling throwing out the EPA water quality guidance, some Coal Tattoo readers advanced the notion that court decisions are wrong if they are based on a lack of following proper procedure — especially in the face of strong scientific evidence such as Judge Chambers had before him in the Highland Reylas matter. (See discussion thread here)

Wouldn’t everyone be better off trying to understand the importance of procedural protections, and to understand and advocate for appropriate legal standards that allow good decisions based on sound science to be made? If there’s one thing that following more than a decade’s worth of mountaintop removal litigation has taught this reporter it’s that a little bit of understanding of the legal standards we have in place for deciding such cases goes a long way to understanding the challenges we face in ensuring good public policy is made.

So stick with me for just a minute here and maybe we’ll all see more clearly the importance of the decision Judge Chambers now faces.

For years, the test used to decide if judges would issue a preliminary injunction — meaning one issued prior to hearing the full case, to maintain the status quo while the wheels of justice grind forward — was based on a case called Blackwelder Furniture Co. v. Seilig Mfg. Co. The four-part tests looks at these factors:

— The likelihood of irreparable harm to the plaintiff if the injunction is not granted;

— The likelihood of harm to the defendant if the injunction is granted;

— The plaintiff’s probability of success on the merits; and

— The public interest.

Importantly, courts are supposed to also use something called the “balance of equities” test when deciding those first two facts. If the balance of equities strongly favors the plaintiff (the party asking for the injunction) , then a sliding scale allows them not to have to make as strong a showing of success, but instead only have to demonstrate that a “substantial question” of law exists.

It’s not hard to imagine why this “sliding scale” is important in a situation where the injunction being sought is post-trial, pending appeal, as this one is. Without it, a judge basically has to be willing to admit he’s probably going to be overturned on appeal before he an injunction can be granted to allow time for that appeal.

That’s where things get interesting in the Highland Reylas case. You see, Alpha Natural Resources and the Obama administration (through the U.S. Army Corps of Engineers) are arguing that a different standard be applied by Judge Chambers in determining whether to grant an injunction pending appeal. They rely on a case called, interestingly enough, The Real Truth About Obama vs. FEC. Citing a U.S. Supreme Court ruling called Winter v. NRDC, the 4th Circuit threw out its longstanding sliding scale (read more about this here, here and here). Alpha lawyers argued in their brief to Judge Chambers:

After Real Truth About Obama, the issue is not whether Sierra Club has simply raised a “serious question,” but rather whether it will likely prevail. As the Fourth Circuit in Real Truth About Obama noted, “[t]he Winter requirement that the plaintiff clearly demonstrate it will likely succeed on the merits is far stricter than the Blackwelder requirement that the plaintiff demonstrate only a grave or serious question for litigation.”

Teaney and the other citizen group lawyers disagree. In their legal brief and at today’s hearing, they argued that the new test for injunctions involves only requires for pre-trial injunctions at the district court level, not to situations like this, where a judge who ruled against an injunction is being asked for a post-trial injunction to allow time for appeal. They note that the Federal Rules of Appellate Procedure require parties seeking injunctions pending appeal to go first to the trial court that ruled against them, before trying to convince the appeals court to step in. Applying the rigid, “success on the merits” standard to this sort of situation, the citizen group lawyers say, would make this step pointless — because how often is a trial court judge going to admit they are probably going to be overturned? The citizen group brief noted:

In other words, to extend the Real Truth standard from the preliminary injunction context to the injunction pending appeal context would force F.R.App.P. 8 to require a futile act. District courts would be burdened with perfunctory motions for relief pending appeal, none of which would ever be granted.

In short, the continued vitality of the “serious question” test for injunctions pending appeal is not irreconcilable with a stringent, Winter based test for preliminary injunctions. This Court can apply the serious question test because no Fourth Circuit case prohibits it and powerful reasons cut in favor of its continued application in this context.

During today’s conference call hearing, Judge Chambers said he is pretty sure he would rule that the citizen groups have raised a “serious question” in their appeal, but not that they are likely to prevail. So the crucial question for him, the judge said, is to decide this matter of which test must be applied.

The judge apparently wants to take some additional time to decide. Alpha had previously agreed that no mining under the permit would take place through the end of the day on Monday, Aug. 27. But today, Judge Chambers said he would continue a stay that blocks mining until he issues a ruling on this issue. He said he hopes to do so sometime next week, perhaps by the middle of the week. Stay tuned …