Judge wants more time to decide Alpha permit's fate

Links at top: Read more: http://blogs.wvgazette.com/coaltattoo/ CHARLESTON, W.Va. -- A federal judge wants more time to decide if he will block an Alpha Natural Resources mountaintop removal permit while citizen groups appeal the permit to a higher court.U.S. District Judge Robert C. Chambers said Thursday he would continue a legal stay on the permit until he can consider new legal briefs and arguments made during a telephone conference call hearing.Alpha had already said that mining under the permit would not begin until the end of the day Monday, but Chambers said he might not rule until later in the week.At issue is the Aug. 10 ruling by Chambers not to block a U.S. Army Corps of Engineers' Clean Water Act permit for Alpha's 635-acre Highland Reylas Surface Mine near Ethel in Logan County.Lawyers for the Ohio Valley Environmental Coalition and other groups hope to appeal the decision to the 4th U.S. Circuit Court of Appeals.The Richmond, Va.-based court has in the last decade overturned rulings by three different federal judges in West Virginia to curb mountaintop removal mining. But once considered the most conservative federal appeals court in the country, the 15-judge 4th Circuit now has six new members appointed by President Obama.Citizen groups could also ask the 4th Circuit to stop mining until an appeal is heard, but it's not clear if such a request could be heard in time to stop the company from moving forward if Chambers doesn't act.
During Thursday's hearing, Chambers said he needs more time to decide which legal test he should apply in determining whether to grant to citizen groups an injunction pending appeal.Lawyers for Alpha and the Corps of Engineers want Chambers to use a new and strict test that requires the citizen groups to prove they are highly likely to succeed in their appeal.Derek Teaney, an Appalachian Mountain Advocates lawyer for the citizen groups, told the judge the standard legal test -- which allows an injunction pending appeal if the case raises "serious questions" of law -- is appropriate in this instance.Teaney said the more strict test would turn such appeals into "an exercise in futility," because it's so unlikely that trial court judges would rule they are likely to be overturned by an appeals court panel.Chambers said Thursday that he's almost certain that citizen groups have raised a "serious question," but that he needs to determine which of the tests he should apply to the injunction request.In his Aug. 10 ruling, Chambers said scientific evidence clearly shows mountaintop removal is damaging water quality and aquatic life downstream from mining operations. But the judge said a previous appeals court ruling tied his hands, forcing him to defer to the Corps of Engineers' permit approval.Chambers made clear he was bound by a 2009 ruling in a case involving Aracoma Coal Co., in which the 4th Circuit said he overstepped his authority in throwing out four permits issued by the corps.
While the ruling by Chambers applies specifically to the Alpha permit, it also sets a standard for how other permit decisions might be made moving forward.Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.
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