Federal Court Hears Corps, Industry Appeal of Our Major Victory

On Sept. 23, the 4th U.S. Circuit Court of Appeals in Richmond, Va. heard the U.S. Army Corps of Engineers’ and coal companies’ appeal of our 2007 legal victory.

In a 75-minute hearing, a three-judge panel heard arguments regarding U.S. District Judge Robert C. Chambers’ 2007 rulings.

One ruling said the corps had not fully evaluated potential environmental damage before approving four Massey Energy valley fill permits.

The other concluded that the Clean Water Act does not allow coal operators to build in-stream sediment ponds at the bottom of valley fills. Both rulings represent major legal victories for OVEC, Coal River Mountain Watch and the West Virginia Highlands Conservancy, represented by the Appalachian Center for the Economy & the Environment and Earthjustice.

The corps told the appeals court that it was meeting all legal requirements in issuing valley fill permits. Appalachian Center lawyer Joe Lovett disagreed, arguing that Judge Chambers was correct in his rulings. Lovett said the corps failed to perform required functional analyses of how streams would be affected over time by mining activities.

A corps attorney contended the agency did perform structural analyses and that those provided all the information needed in order to issue permits. The attorney said the agency could rely on its "best professional judgment" because it doesn’t have the funds to conduct the functional analyses.

The Associated Press reported that Judge M. Blane Michael seemed unswayed by that argument, saying the lack of funding "does not give you a pass."

As Winds of Change went to print, the appeals court had not yet ruled.