Coal Tattoo

Supreme Court review sought in MTR case

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Environmental groups announced today that they are asking the U.S. Supreme Court to review the latest federal court ruling on mountaintop removal coal mining.

Lawyers from Earthjustice and the Appalachian Center for the Economy and the Environment filed this petition. They want the Supreme Court to review a 4th Circuit Court of Appeals decision that overturned a ruling by U.S. District Judge Robert C. Chambers.

Citing the “alarming cumulative stream loss” to valley fills, Judge Chambers had ruled in March 2007 that the federal Army Corps of Engineers failed to conduct proper environmental reviews before issuing Clean Water Act permits for valley fills.  In February, the 4th Circuit ruled that Chambers wrongly did not defer to the Corps’ own judgment on those environmental reviews.

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“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.

mblanemichael.jpgBut 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.

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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.

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Obama administration officials better figure out pretty soon what their game plan is for dealing with mountaintop removal coal mining … because a federal appeals court today gave them a deadline.

By April 14, Obama’s lawyers from the Department of Justice must respond to a motion for a rehearing of the 4th U.S. Circuit Court of Appeals’ decision overturning a mountaintop removal ruling by U.S. District Judge Robert C. Chambers.

Questions about Obama’s position and his plans for regulating mountaintop removal have been growing since the 4th Circuit’s decision on Feb. 14 — and have reached new levels in the last week, after the U.S. EPA announced plans for much closer reviews of Clean Water Act permits for valley fills.

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Mountaintop removal: Back to Richmond?

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The Lewis F. Powell U.S. Courthouse, Richmond, Va.

The mountaintop removal fight might be headed back to Richmond, Va. — one way or the other.

First, coal industry officials seem likely to appeal today’s decision by U.S. District Judge Joseph R. Goodwin.  It will be most interesting to see what the Obama administration does — whether they appeal and, even if they don’t, what position the Justice Department takes in any industry appeal, given President Barack Obama’s stated opposition to this mining practice (see here and here).

Next, environmental group lawyers on Monday filed their formal request that the full 4th U.S. Circuit Court of Appeals reconsider a three-judge panel’s decision to overturn the previous mountaintop removal decision by U.S. District Judge Robert C. Chambers.

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That other mountaintop removal case

U.S. District Judge Robert C. Chambers isn’t the only federal judge in West Virginia with a mountaintop removal case pending in his courtroom.

jgoodwin.jpgThere’s still a lawsuit against the U.S. Army Corps of Engineers pending before U.S. District Judge Joseph R. Goodwin in Charleston.

Under the Clean Water Act, the corps has been approving valley fills through two different kinds of permits: Individual permits and nationwide (also called general or regional permits).

The suit before Chambers concerns  individual permits, or IPs. The case before Goodwin involves nationwide permits, in particular Nationwide Permit 21 for coal-mining operations.

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Court ruling redraws lines of power

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The federal government can’t overrule state decisions to reject new electric transmission lines, under a new appeals court decision.

A three-judge panel from the 4th U.S. Circuit Court of Appeals threw out the Federal Energy Regulatory Commission’s  rulemaking to allow federal preemption of power line siting decisions. The decision, issued last week, was written by Judge M. Blane Michael.

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A dissenting voice …

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The latest mountaintop removal case marks a first: For the first time, a judge from West Virginia served on the three-judge panel that considered whether coal companies should be more closely regulated when they want to blow apart the state’s mountains and bury its streams with coal-mining waste. (Thanks to Viv Stockman at OVEC for the photo above).

mblanemichael.jpgJudge M. Blane Michael had previously joined in a dissent (with West Virginia’s other 4th Circuit member, Robert King) when another mountaintop removal case went to a hearing before the entire appeals court.

On Friday, Michael dissented from a key part of the 4th Circuit ruling that overturned Judge Robert C. Chambers March 2007 mountaintop removal decision.

You can read the full dissent starting on page 67 of the 4th Circuit decision, which I’ve posted here.

But here’s just a taste of it:

Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwaters streams is irreversible or that headwater streams provide crucial ecosystem functions.

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A word about the judges

For those who are wondering…the three judge panel that heard the mountaintop removal case included:

M. Blane Michael from West Virginia,  a Clinton appointee

Roger L. Gregory of Virginia, another Clinton appointee

–  Dennis W. Shedd of South Carolina, who was appointed as a district court judge by the first President Bush and to the appeals court by President George W. Bush.

In this case, Judge Gregory wrote the 2-1 majority decision. Judge Michael dissented in part.

This was the first time that an appeals court judge from West Virginia has taken part in one of the mountaintop removal appeals.

I’ve written before about how the previous three cases drew very similar panels of conservative judges because of an unusually large number of recusals by members of the circuit.