Publication Date: 6/10/2009
Author: Robert D. Pollitt
Contact: robert.pollitt@steptoe-johnson.com
Energy Law Update: Fourth Circuit Court of Appeals Denies Request for Rehearing En Banc in Ohio Valley Environmental Coalition v. Aracoma Coal Company
On May 29, 2009, by a vote of 4-3, the Fourth Circuit Court of Appeals denied the plaintiffs' request for a rehearing en banc of its decision in Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009). As a result of this case, mining companies will need to perform substantial planning in obtaining Section 404 permits authorizing the use of valley fills for mining operations. Additionally, mining companies will need to engage in innovative mitigation techniques to avoid future litigation by various environmental organizations, not only in relation to mountain top mining, but also for all other types of surface mining.
The majority denied the requested rehearing based on its conclusion that the issue in the case - whether the U. S. Army Corps of Engineers (the "Corps") used an arbitrary or capricious approach to issuing permits under Section 404 of the Clean Water Act - had been adequately addressed by the Fourth Circuit's assigned three-judge panel decision. That panel found that the Corps had not abused its discretion, nor acted arbitrarily or capriciously, by granting a Section 404 permit to Aracoma Coal Company authorizing the use of various valley fills at its mining operation.
The three members of the Court who dissented believed that the petition should have been granted for en banc reconsideration of the issues. The minority thought that the Corps had not adequately addressed all of the requirements governing the issuance of a Section 404 permit and that further issuance of such permits would have significant and irreversible ecological effects upon headwater streams in Appalachia.
The Fourth Circuit should have entered a judgment within seven days from the date of its decision, remanding the case to the Honorable Robert C. Chambers, Judge of the United States District Court for the Southern District of West Virginia, for further proceedings in compliance with the Fourth Circuit's decision. On June 5, 2009, however - the same date that the judgment should have been issued - the plaintiffs filed a motion to stay, thereby postponing the issuance of the judgment until resolution of the plaintiffs' motion.
The plaintiffs may pursue further review of the Fourth Circuit's decision to the United States Supreme Court by filing a petition for writ of certiorari within ninety days of the decision to reject their request for rehearing en banc.
Robert D. Pollitt
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Charleston, WV 25301
Phone (304) 353-8137
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robert.pollitt@steptoe-johnson.com
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