This news story originally provided by The Charleston Gazette

Appeals court sets argument in mining case

By Ken Ward Jr.
Staff writer

A federal appeals court has scheduled a September oral argument in a challenge to the latest ruling to limit mountaintop removal coal mining.

The 4th U.S. Circuit Court of Appeals scheduled the argument for Sept. 19 in Richmond, Va., court records show.

Under court rules, the names of the three judges who will hear the case will not be announced until that morning.

In the appeal, coal industry groups and the Bush administration seek to overturn a ruling that blocked the streamlined permitting of new mountaintop removal coal mines.

U.S. District Judge Joseph R. Goodwin issued the July 2004 ruling, the third in a series of federal court decisions to curb large-scale strip mining in Appalachia.

In 2001 and again in 2003, the 4th Circuit — dubbed the nation’s most conservative appeals court by The New York Times — overturned the earlier rulings by the late U.D. District Judge Charles H. Haden II.

As with Haden’s two rulings, the case before Goodwin dealt with complicated questions about how the federal Clean Water Act and Surface Mining Control and Reclamation Act police strip mining.

Specifically, the Goodwin ruling examined the U.S. Army Corps of Engineers’ historic practice of approving valley fill waste piles through a Clean Water Act authorization called Nationwide Permit 21, or NWP 21.

Under the law, such permits are supposed to be used only to approve categories of activities that, cumulatively, would have minimal environmental effects.

In October 2003, the Ohio Valley Environmental Coalition, Coal River Mountain Watch and the Natural Resources Defense Council sued the corps over this practice. Lawyers for those groups argued that the corps could only approve valley fills through individual permits, which receive more detailed reviews.

In his July 8, 2004, opinion — as well as in a series of related rulings — Goodwin found that the corps had never concluded that valley fills caused minimal adverse impacts.

Without such a finding, the judge said, the corps cannot use NWP 21 for any new mining permits.

Coal industry lawyers argued in their appeal brief that Goodwin’s decision is the “latest unwarranted and impermissible dismantling” of mountaintop removal regulations by federal judges in Southern West Virginia.

Bush administration lawyers said Goodwin’s ruling was the third legal effort by environmental groups to “halt the practice of valley fill mining.”

Since Jan. 1, the corps has approved 23 individual Clean Water Act permits for surface mining operations, agency spokesman Chuck Minsker said Thursday.

Through July 9, coal production in West Virginia in 2005 was up nearly 2 percent over the same period in 2004, according to the U.S. Department of Energy.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.