Mountaintop removal: Back to Richmond?

The Lewis F. Powell U.S. Courthouse, Richmond, Va.

The mountaintop removal fight might be headed back to Richmond, Va. — one way or the other.

First, coal industry officials seem likely to appeal today’s decision by U.S. District Judge Joseph R. Goodwin.  It will be most interesting to see what the Obama administration does — whether they appeal and, even if they don’t, what position the Justice Department takes in any industry appeal, given President Barack Obama’s stated opposition to this mining practice (see here and here).

Next, environmental group lawyers on Monday filed their formal request that the full 4th U.S. Circuit Court of Appeals reconsider a three-judge panel’s decision to overturn the previous mountaintop removal decision by U.S. District Judge Robert C. Chambers.

For those who don’t know, federal appeals court generally handle most cases through three-judge panels that are allegedly picked randomly. Covering the mountaintop removal appeals, it’s been hard to believe the panel selections are random, because a couple of the same judges — staunch conservatives Paul V. Niemeyer and J. Michael Luttig — kept drawing mining cases.

Now, Luttig is gone, having left for a job with Boeing after he was passed over by President George W. Bush for a seat on the U.S. Supreme Court. And the most recent 4th Circuit panel, which overturned Chambers, included a judge from West Virginia, M. Blane Michael. Michael voted in the minority to uphold Chambers, and he previously joined the circuit’s other West Virginia judge, Robert B. King, in a dissent when the full 4th Circuit declined to reconsider a panel decision overturning Judge Goodwin’s previous mountaintop removal ruling.

In their rehearing petition, which I’ve posted here, lawyers for the Ohio Valley Environmental Coalition, Coal River Mountain Watch and the West Virginia Highlands Conservancy, noted Michael’s dissent:

As the separate opinion by Judge Michael underscores, this proceeding involves matters of exceptional importance. The four permits at issue in this case will permanently destroy headwaters in more than thirteen miles of Appalachian streams and will fill twenty-three valleys, resulting in harm downstream in each watershed.

Moreover, the corps’ ability to evade EPA regulations implementing the Clean Water Act presents an issue of nationwide concern with significant implications for the protection of U.S. waters. The precedent in this case will determine in this circuit whether other agencies must at least prepare an environmental impact statement before authorizing such a level of destruction.

It’s going to be especially interesting to see how this rehearing petition is handled.

It turns out that the reason Niemeyer and Luttig kept ending up on mountaintop removal cases is that many other judges in the circuit recused themselves.

The last petition for rehearing in a mining case produced a 5-3 vote against rehearing. But 5 of the 13 judges then on the court recused themselves (without really explaining why, except to say their “financial interests” might be affected by the outcome).

Like Luttig, who was on the panel in that case, one of the five recused judges — William W. Wilkins — is no longer on the court.  The court currently has 11 judges and 3 senior status judges. Interestingly, one of the five judges who recused themselves from that previous case — Roger L. Gregory — served on the panel and wrote the decision that overturned Judge Chambers…

Like I said, stay tuned…