Mar 19 - Knight Ridder/Tribune Business News - Ken Ward Jr. The Charleston Gazette, W.Va.

A lawsuit over mountaintop removal coal mining is headed back to U.S. District Judge Joseph R. Goodwin's courtroom.

Last week, the Ohio Valley Environmental Coalition and other groups asked Goodwin to jump back into the case.

Coalition lawyers want Goodwin to rule on a variety of arguments that the judge did not address in an earlier decision that was overturned by a federal appeals court.

Lawyers Joe Lovett of the Appalachian Center for the Economy and the Environment and Jim Hecker of Trial Lawyers for Public Justice filed the motion with Goodwin in U.S. District Court in Charleston.

Lovett and Hecker want Goodwin to again block the U.S. Army Corps of Engineers from approving new mining operations through a streamlined permitting process meant for activities that cause minimal environmental harm.

Through a series of rulings starting in July 2004, Goodwin found the corps never concluded that mountaintop removal valley fills have minimal impact on the environment. Without that finding, the Clean Water Act does not allow the corps to authorize the fills through streamlined permit reviews, Goodwin ruled.

In a November 2005 decision, a three-judge panel from the 4th U.S. Circuit Court of Appeals found that the corps "did in fact make the determinations" that fills cause minimal impact.

That narrow legal issue, though, was only one of the attacks on mountaintop removal contained in the coalition's lawsuit, originally filed in October 2003.

Among the other issues raised in the lawsuit was that:

--The corps did not consider the nationwide impacts of its streamlined permitting process

--Corps officials did not examine the impacts of mountaintop removal on "the whole environment," but only looked at water quality effects.

--The corps arbitrarily did not place a limit on the length or size of streams that could be buried by permits processed through its streamlined reviews.

--The corps' determination that its streamlined permits have minimal effects on the environment is "arbitrary and capricious."

--The corps' decision that this process has "insignificant environmental effects" -- and therefore does not need a more detailed study -- is arbitrary and capricious.

In mountaintop removal, coal companies use explosives to blast apart entire hilltops and uncover valuable low-sulfur coal seams. Huge trucks and dozers roll in and load up the coal. Leftover rock and dirt -- the stuff that used to be the mountain -- is shoved into nearby valleys, burying streams.

In a landmark study of the practice, the federal government found, from 1992 to 2002, mountaintop removal and associated valley fills destroyed or seriously damaged 1,208 miles of Appalachian streams.

Over that same period, mountaintop removal eliminated 380,547 acres of forest in the region, the government study found.

As mountaintop removal expanded in the mid-1990s, citizen opposition grew into public protests and a series of lawsuits and permit challenges.

Three times in the past four years, the Richmond, Va.-based 4th Circuit -- dubbed the most conservative appeals court in the nation by The New York Times -- has thrown out decisions by federal judges in West Virginia to limit the practice.

Currently, a related case is pending before U.S. District Judge Robert C. Chambers. In that suit, environmental groups want to force the corps to conduct detailed environmental impacts studies on every application for a new valley fill permit.

Last month, the full 4th Circuit declined to reconsider the panel's decision to overturn Goodwin's mining ruling.

But three judges -- including two from West Virginia, Robert B. King and M. Blane Michael -- dissented and said "this case is of exceptional importance to the nation and, in particular, to the states of the Appalachian region."

"The Appalachian regions, the oldest mountain chain in the world, are one of the nation's richest, most diverse, and most delicate ecosystems, an ecosystem that mountaintop coal mining authorized by the corps' general permit may irrevocably damage," King wrote in the dissent.

King added the corps' permit process "undermines the [Clean Water Act's] primary purpose of protecting the environment" and "poses unnecessary risks to one of this nation's great places."