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This news story originally provided by The Charleston Gazette September 20, 2005 Court hears appeal in mountaintop mining case By LARRY O'DELL U.S. District Judge Joseph Goodwin last year revoked 11 permits issued by the U.S. Army Corps of Engineers under the Nationwide Permit 21 process, which is intended for activities that cause no more than minimal environmental damage. In mountaintop mining, hilltops are blasted away to uncover coal seams and the leftover rock and dirt is dumped into valleys, burying streams. Goodwin ruled that the corps never concluded that valley fills had only a minor environmental impact. James Hecker, an attorney for the Ohio Valley Environmental Coalition, told a three-judge panel of the 4th U.S. Circuit Court of Appeals that Goodwin correctly concluded that coal companies proposing to bury streams should go through individual permit reviews. He also said the streamlined process shut out the public comment that is otherwise required in Clean Water Act permit applications. U.S. Department of Justice lawyer Elizabeth Kessler argued that Congress deliberately authorized the corps to determine that the cumulative effect of valley fills would be minimal without examining individual operations. "The record shows the corps did make the minimal adverse effect determination before it issued the general permit," Kessler told the judges. Lawyers for both sides were vigorously questioned. Judges were especially focused on where, if anywhere, in the process the corps determined environmental impact would be minimal. Judge J. Michael Luttig said the government seemed to operate under the "nonsensical" assumption that it would never issue a permit in violation of the law. "Even by Washington standards, that's pretty incredible," Luttig said. Coal industry attorney Michael Shebelskie said after the 70-minute hearing that the case centers on how much leeway should be given to the agency administering the statute. "The court gave a fair hearing to both sides and asked tough questions of everyone," Shebelskie said. "It's clear they're giving close scrutiny to this issue." Said Hecker: "I think the court was extremely skeptical of the government's argument. They were searching the record for where a determination (of minimal environmental impact) was made and couldn't find it." Joining Luttig on the panel were Judge Paul V. Niemeyer and visiting U.S. District Judge Robert J. Conrad Jr. of North Carolina. The court usually issues a ruling several weeks after hearing oral arguments. |
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