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This article originally provided by
The
Associated Press
By LARRY O'DELL
Associated Press Writer
RICHMOND, Va. (AP) -- A lawyer for the U.S. Army Corps of Engineers told a federal appeals court Tuesday that the agency met all the legal requirements for issuing permits to a coal company to fill valleys with rubble from blasting the tops off of several West Virginia mountains, a mining practice called mountaintop removal.
An attorney for an environmental group disagreed, arguing that a federal judge correctly ruled that the corps failed to adequately assess possible environmental damage before issuing so-called valley fill permits to four mines operated by subsidiaries of Richmond, Va.-based Massey Energy.
The corps and the coal companies are appealing U.S. District Judge Robert C. Chambers' 2007 ruling to the 4th U.S. Circuit Court of Appeals. A three-judge panel heard from both sides during a 75-minute hearing. The court usually takes several weeks to rule.
The lawsuit was filed by the Ohio Valley Environmental Coalition and two other environmental groups, which said the corps should have performed more extensive environmental reviews before issuing permits allowing Massey to fill valleys with dirt, rocks and other material blasted from mountaintops to expose coal seams.
Joe Lovett, an attorney for the environmental groups, said the permits allowed 23 valley fills and affected 12 miles of streams. He said the corps was required to conduct both a structural analysis - which he described as "a snapshot" - and a functional analysis of how streams would be affected over time. The corps conducted only the former, Lovett said.
"The corps simply failed in its duty to assess function," Lovett said.
Corps attorney Michael Gray countered that the structural analysis provided all the information that was needed to determine whether a permit should be issued. He said the corps was allowed to rely on its "best professional judgment" because it lacked funding to conduct the functional analysis.
Judge M. Blane Michael seemed unswayed by that argument, telling Gray the lack of money "does not give you a pass."
The two sides also disagreed on whether the corps properly assessed the cumulative effect of the valley fills. Gray said the corps concluded that the cumulative effect would be insignificant, but Lovett argued that there was no evidence in the record to support such a conclusion.
Gray also said much of the regulation sought by the plaintiffs falls under state mining laws. Rejecting the permits would have amounted to a veto of the state's authority, he said.
"The corps has to be very careful how it exercises its jurisdiction when you have this extensive state overlay," he said.
Lovett said mining laws do not affect the corps' Clean Water Act authority.
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