Making sense of the 4th Circuit decision

(Photo by Viv Stockman at OVEC)

Appeals court rulings aren’t something that most people ever have to spend much time trying to sort out and understand. I never went to law school. I’m just a newspaper reporter (and now, a blogger).

But I thought I’d try to give a little perspective into what is going on behind the huge ruling for the coal industry Friday by the 4th U.S. Circuit Court of Appeals.

Part of it comes down to a simple concept, the idea that administrative agencies know what they’re doing. Anti-lawsuit folks can complain all they want about judges running crazy in our country, but the trend is really just the opposite. More and more, courts are giving deference to what government agencies do — how these agencies interpret the laws that govern them and the regulations they write to implement those laws

Right there on page 17 of the 4th Circuit’s decision in the mountaintop removal case it is: Both the Clean Water Act and the National Environmental Policy Act are subject to judicial review under another law, the Administrative Procedure Act. Here’s the key thing:

For all agency actions, a reviewing court must set aside the action if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” (That’s in quotes, because it’s citing a prior court case, Citizens To Preserve Overton Park Inc. v. Volpe).

What’s that mean to the mountaintop removal case?

Well, citizen groups filed this suit to challenge in court approval of four Massey Energy mountaintop removal permits by the U.S. Army Corps of Engineers. They alleged that the corps violated the National Environmental Policy Act and the Clean Water Act. The claims get a little complicated, so I’m going to boil it down. Basically, the citizen group lawyers argue the corps did not take an honest look at what kind of damage the mining proposals would do to the environment. If they had done so, the argument goes, corps officials would have had to admit that the damage was so great that it could not be allowed.

Testimony and legal arguments back and forth on this basic point also got pretty complicated. What did the corps consider? How did it perform its tests? What sort of scientific basis was there for doing it that way?

One school of thought — that advocated by the government and the coal industry in this case — is that judges shouldn’t go very far down that road. If what the corps did had any sort of basis at all, that’s the end of the story. The court defers to the agency, and the coal industry gets its permits.

But another school of thought is that judges should pull back the curtain a bit and see what these agencies are really up to. And that’s what Judge Chambers did in his original, March 2007 decision.

Consider one key example: The corps argues that coal operators can rebuild streams that mountaintop removal mines bury, thus “mitigating” for the loss of those streams and reducing the net damage to a minimal level. But Chambers heard testimony from independent scientists who said this stream building simply doesn’t work — that no peer-reviewed research shows that it does work. Corps officials admitted in court that they couldn’t cite a single example where it really worked they way they hoped it would.

Based on this kind of testimony, Chambers ruled that the corps had gone to far, had “abused its discretion” to use the legal term.

But the 4th Circuit, as it has done before in mining cases, disagreed. Two of the three judges on the hearing panel said Chambers should have just accepted the “best professional judgment” of the corps staff, whether the rest of the scientific community agreed or not.

“The problem is that the corps and the court are not listening to the scientists,” said Jim Hecker, environmental enforcement director with Public Justice, which represented citizen groups in the case.

“The scientists tell us that the plans to mitigate stream losses have no scientific basis,” Hecker said. “The court gave blanket deference to the corps bureaucrats, and none to the contrary opinion of stream scientists. The court’s decision will open the floodgates to many more mountaintop removal mining permits that will destroy streams and threaten communities in Appalachia.”