2. COAL: Appeals court tosses new mountaintop mine rules (E&ENews PM, 02/13/2009)

Eric Bontrager, E&E reporter

The Army Corps of Engineers can issue permits for mountaintop coal mining without requiring more extensive environmental reviews, a federal appeals court ruled today.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., in a 2-1 vote, overturned a lower court's ruling that said the Army Corps was not performing adequate environmental analyses before issuing permits for mountaintop removal operations.

Judge Roger Gregory wrote for the majority that U.S. District Court Judge Robert Chambers in the Southern District of West Virginia should have deferred to the corps' interpretation of its responsibilities under the Clean Water Act when he issued a 2007 injunction against four corps permits for Massey Energy Co. subsidiaries.

Chambers had ruled that the corps "gave no more than lip service" to the environmental consequences when it issued the permits allowing the strip-mining of about 3,800 acres and the burial of more than 12 miles of streams with rock waste (Greenwire, March 26, 2007).

But Gregory said that the corps had authority to permit the mining operations, explaining that it was the agency's responsibility to balance the Clean Water Act with other federal laws, such as those allowing mineral development.

"The Corps is attempting to harmonize the two statutes' goals: ensuring that mining operations can proceed while maintaining the highest level of water quality possible outside of the mining area," Gregory wrote.

In his dissent, Judge M. Blane Michael wrote that while he agreed with the majority on the scope of the corps' responsibility, the agency was wrong to conclude that the permits would have no significant environmental impact.

Today's decision also reverses another 2007 ruling by Chambers that found the Clean Water Act does not allow the use of settling ponds to remove sediment from streams buried by rock debris.

Army Corps spokesman Eugene Pawlik said the agency had no comment on today's decision.

The ruling is a blow for mountaintop-mining foes, who say waste from mining operations does irrevocable damage to mountain ecosystems. More than 1,200 miles of streams have already been buried by mining, and opponents say mountaintop operations could destroy as much as 1.4 million acres by 2020.

"The court gave blanket deference to Corps bureaucrats, and none to the contrary opinions of stream scientists," Jim Hecker, environmental enforcement director for the group Public Justice, said in a statement. "The court's decision will open the floodgates to many more mountaintop removal mining permits that will destroy streams and threaten communities in Appalachia."

Steve Roady, an attorney with Earthjustice, which filed the lawsuit that led to today's ruling, said environmental groups it represented in the case were reviewing the decision. "We believe the decision is wrong on the law and the science," he said in a statement. "This fight is not over until mountaintop removal mining is over."

The coal industry praised the ruling. The mining technique contributes about 10 percent of 1 billion or so tons of U.S. coal every year, according to the National Mining Association. It is responsible for 40 percent of the coal mined in West Virginia and Kentucky.

"Even though we have not had an opportunity to fully review the 4th Circuit's decision, we are pleased with the fact it has rejected Judge Chambers' previous ruling," Massey spokesman Jeff Gillenwater said in an e-mail. "This should put an end to much of the uncertainty regarding the issuance of surface mine permits."

Click here to read the ruling.

Reporter Katie Boyle contributed.

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