Judge Blocks Permit for Clay-Nicholas Co. Coal Mine: Fola Coal Can Continue Mining in Interim, Though 

Excerpted from an Oct. 31 Charleston Gazette article by Ken Ward Jr. 

A federal judge blocked a U.S. Army Corps of Engineers permit for a Fola Coal Co. mountaintop removal mine along the Clay-Nicholas County line.

But U.S. District Judge Robert C. Chambers also suspended parts of his own preliminary injunction to allow Fola Coal to continue producing coal until a full trial on the case.

And in a 12-page opinion, Chambers suggested additional actions by lawmakers or executive agencies are needed to resolve continuing debates over mountaintop removal…

Chambers (said) he suspended parts of his injunction against Fola in the hope that "some degree of clarity" would be provided soon by the 4th U.S. Circuit Court of Appeals "or, perhaps, a separate branch of government."

At the Fourth Circuit, a three-judge panel is considering an appeal of a March 2007 decision by Chambers that the Corps of Engineers did not properly consider the environmental impacts before issuing Clean Water Act permits for mountaintop removal mines to bury streams. …Chambers (wrote), "While some may decry the loss of jobs for the sake of a handful of valleys and streams, there is a real and substantial public interest in maintaining the quality of natural resources… (The judge wrote that permanent destruction of the streams may result in) "an environmental catastrophe, arrived at one small step at a time."

… "While environmental damage from the burial of streams is real and imminent, the relationship between Fola Coal and Clay County is unique," Chambers wrote. "Fola is the only mining operation in the county, and as such is the foundation of the economy."

(By suspending part of his injunction and granting continuation of only two of the 11 valley fills in question, Fola can continue operating "well into 2009.")

… "The partial stay of this injunction alleviates most, if not all, of Fola’s economic harm in the near term," Chambers wrote.

"The court would expect to resolve the case on the merits and benefit from the guidance of the Fourth Circuit by the time the substantial economic harm would be felt by Fola."