Published on
the Charleston Gazette (West Virginia)

Appeals Court Overturns Mountaintop Removal Ruling

Ken Ward Jr.

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

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.

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.


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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

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

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