Asking the Highest Court in the Land to Hear Our Case

On August 27, the Appalachian Center for the Economy & the Environment and Earthjustice filed a petition to the U.S. Supreme Court, asking for an appeal of a recent decision made by the Fourth Circuit Court of Appeals over one of our lawsuits.

"The Supreme Court must intervene in a case that strives to provide essential protections for Appalachian mountain streams under the Clean Water Act," said Joe Lovett, executive director of the Appalachian Center. "The Corps has not adequately controlled mountaintop removal mining activity and has allowed for the wholesale destruction of our vital waterways."

The lawsuit, filed by OVEC, West Virginia Highlands Conservancy and Coal River Mountain Watch in 2005, claims that the U.S. Army Corps of Engineers has violated the Clean Water Act by issuing permits which allow coal companies to dump waste from mountaintop removal mining into waterways without following basic requirements of federal law designed to prevent irreversible harm to the nations waterways.

In March 2007, we won that lawsuit before U.S. District Judge Robert C. Chambers. The ruling would have

required the Corps to conduct more extensive environmental reviews before issuing permits to coal companies wanting to bury streams.

In February, a panel of federal judges in the U.S. Court of Appeals for the Fourth Circuit ruled 2 to 1 in favor of the Corps in the case, with a strong dissent from one judge on the panel.

We then requested rehearing by the full court of appeals, but in late May, by a close vote of 4 to 3, with 4 additional judges abstaining from the vote, the court denied that petition. Two judges filed strong dissenting opinions this time.

In his dissent from the denial of rehearing, Judge M. Blane Michael, who also had dissented from the panels February decision, explained that: "The ecological impact of filling headwater streams with mining overburden is both profound and irreversible No permit should be issued until the Corps fulfills each distinct obligation under the controlling regulations. And this court should not defer to the Corps until the agency has done its job."

"Were constantly hearing about the decreasing amounts of clean water within our nation as well as water wars between states," said OVEV member Carolyn Van Zant. "Yet the coal industry is recklessly burying and polluting our headwater streams under millions of tons of mining waste in central Appalachia. We hope that the Supreme Court realizes how vital, urgent and necessary their input is on this matter."