This news story originally provided by The Charleston Gazette

Mountaintop Mining rehearing Denied, 5-3 Two W.VA. Appeals Court Judges Dissent.

By Ken Ward Jr.
Staff writer

A federal appeals court on Wednesday declined to reconsider its decision to overturn a ruling that would have toughened regulation of mountaintop removal mining.

At the same time, two appeals judges from West Virginia agreed to rehear the case and defended the original ruling by U.S. District Judge Joseph R. Goodwin.

By a 5-3 vote, the 4th U.S. Circuit Court of Appeals declined to reconsider a November ruling by a three-judge panel to overturn Goodwin.

Judges Robert B. King and M. Blane Michael of Charleston dissented. Judge Diana Gribbon Motz joined them, in a dissent written by King.

"This case is of exceptional importance to the nation and, in particular, to the states of the Appalachian region," King wrote.

"The Appalachian mountains, the oldest mountain chain in the world, are one of the nation's richest, most diverse, and most delicate ecosystems, an ecosystem that the mountaintop coal mining authorized by the corps' general permit may irrevocably damage," he wrote.

Environmental group lawyers had asked for the rehearing, a process that could allow the full 13-judge circuit to consider the case.

In a series of rulings starting in July 2004, Goodwin had blocked the U.S. Army Corps of Engineers from approving new mines through a streamlined permit process intended for activities that cause minimal environmental damage.

In a November decision, Judges J. Michael Luttig, Paul V. Niemeyer and visiting Judge Robert J. Conrad Jr. ruled that the corps' permitting decisions did comply with the Clean Water Act.

King disagreed, saying the panel decision "undermines the CWA's primary purpose of protecting the environment" and "poses unnecessary risks to one of this nation's great places."

Four federal judges from West Virginia have now ruled that mountaintop removal needs to be more strictly regulated.

The late Chief U.S. District Judge Charles H. Haden II issued a series of rulings that were also overturned by the 4th Circuit.

In its ruling Wednesday, the 4th Circuit disclosed the names of five judges who recused themselves from considering the latest mountaintop removal case.

They were Chief Judge William W. Wilkins and Judges J. Harvie Wilkinson Jr., Karen J. Williams, William B. Traxler Jr., and Roger L. Gregory.

Last year, the 4th Circuit had declined to say which judges recused themselves from hearing a series of mountaintop removal cases.

Mark Zanchelli, chief deputy court clerk, had said a "significant number" of judges recused themselves because of "financial interests" that could have been affected by the case.

Court officials cited those recusal decisions as the reason that Niemeyer and Luttig - two of the court's most conservative members - served on panels that heard all three mountaintop removal cases. Panels are supposed to be chosen randomly.