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Coal Gets Dirty Again

February 20, 2009

Appeals Court Overturns Mountaintop Removal Ruling

by Ken Ward Jr.

CHARLESTON, W.Va. – A federal appeals court today overturned a judge’s 2007 decision to require more thorough permit reviews of mountaintop removal mining operations.

[Sludge pond in West Virginia, 400 yards from an elementary school. (flickr photo by daniel shea used under Creative Commons license)]Sludge pond in West Virginia, 400 yards from an elementary school. (flickr photo by daniel shea used under Creative Commons license)

In a victory for the coal industry, the 4th U.S. Circuit Court of Appeals in Richmond, Va., rejected the decision by U.S. District Judge Robert C. Chambers in Huntington. 

By a 2-1 vote, a 4th Circuit panel concluded that Chambers wrongly did not defer to the federal Army Corps of Engineers interpretation of its own rules when granting Clean Water Act permits for mountaintop removal coal operations.

“In matters involving complex predictions based on special expertise, a reviewing court must generally be at its most deferential,” wrote Judge Roget Gregory in a 74-page opinion on behalf of himself and Judge Dennis Shedd.

Read the ruling here.

Gregory and Shedd also ruled that Chambers wrongly determined the corps should have considered environmental effects before the direct impacts on the streams being filled. Those other effects — on surrounding valleys and forests — are best left to be regulated by state agencies under the federal strip mine law, Gregory and Shedd concluded.

Judge M. Blane Michael of West Virginia dissented from parts of the decision that found the corps had rightly concluded the mining operations in question would cause no significant environmental degradation.

Chambers had ruled in March 2007 that the federal Army Corps of Engineers did not properly consider the environmental impacts before issuing Clean Water Act permits for mountaintop removal mines to bury streams.

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