This just in: The 4th U.S. Circuit Court of Appeals has upheld a lower court ruling that refused to block a permit for Alpha Natural Resources’ Highland Reylas Surface Mine in Logan County, W.Va.
You can read the full opinion here. There’s background on this case available here, here and here. The opinion was written by Judge Paul V. Niemeyer (who also upheld mountaintop removal practices in the 4th Circuit’s Bragg and KFTC rulings), and other members of the panel that heard the case were Judges William B. Traxler Jr. and J. Harvie Wilkinson. All three were originally appointed to the bench by Republican presidents.
The court concluded:
… Contrary to the Environmental Coalition’s contention that the Corps failed to take a hard look at conductivity and stream impairment, the record amply shows that the Corps grappled with the issue extensively, rationally finding that (1) the connection between conductivity and stream impairment was not strong enough to preclude a permit and (2) the compromise measures agreed to by the EPA and Highland Mining would successfully mitigate the potential for adverse effects.
With the inability to demonstrate that the Corps failed to take a “hard look,” the Environmental Coalition’s arguments are reduced to no more than a substantive disagreement with the Corps. But our review is limited, and we may not “use review of an agency’s environmental analysis as a guise for second-guessing substantive decisions committed to the discretion of the agency.”