Fourth Circuit Denies Rehearing in Mountaintop Removal case

This past week, the Fourth Circuit issued another opinion in the ongoing controversy over mountaintop removal, refusing to rehear its earlier opinion in Ohio Valley Environmental Coalition,, et al, v. Aracoma Coal Company, No. 07-1355. The effect is to lift an injunction issued by the District Court which prohibited the issuance of permits by the US Army Corps of Engineers.

OVEC and other conservation groups brought suit in the US District Court for the Souther District of West Virginia over the issuance of permits by the U.S. Army Corps of Engineers ("Corps") which "allowed the filling of West Virginia stream waters in conjunction with area surface coal mining operations."

The District Court granted summary judgment and rescinded the permits, finding they violated the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq. (2000), the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. (2000), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. (2000), and enjoined "all activity under those permits and remanded to the Corps for further proceedings consistent with its order."

The Fourth Circuit reversed the District court's decision in an opinion filed on February 13, 2009. http://pacer.ca4.uscourts.gov/opinion.pdf/071355R1.P.pdf.

This week, the Fourth Circuit voted to deny OVEC's petition for rehearing and rehearing en banc. http://pacer.ca4.uscourts.gov/opinion.pdf/071355R1.P.pdf.