Appalachian Voices’ staff attorney has finally returned from his holiday hiatus and a whirlwind “hill drop” in Richmond, VA. With his return came this update on Zeb Mountain.
In December, Appalachian Voices was informed by the U.S. Sixth Circuit Court of Appeals that its petition for rehearing of the Zeb Mountain appeal had been denied. At issue was whether the original three-judge panel of the Sixth Circuit erred in refusing to stop this mountaintop removal operation until the Office of Surface Mining (OSM) considered a reasonable range of alternatives under the National Environmental Policy Act (NEPA). This decision leaves the original opinion undisturbed.
While that opinion has been viewed by many as a terrible blow because it allows the mining to continue, others see a silver lining insofar as the Sixth Circuit has forever changed how OSM will review future mining permits in Tennessee.
Until Appalachian Voices filed this lawsuit (along with SABP, SOCM and TN Sierra Club), OSM took the position that the Surface Mining Act limits its choice of NEPA alternatives to approving, denying or taking no action on permit applications. The Sixth Circuit panel soundly rejected this argument by calling it a “false trichotomy.” After thoroughly destroying OSM’s argument on this point, the court, echoing Appalachian Voices’ position, went on to identify two reasonable alternatives for OSM to consider in the future: “one alternative that could have been discussed was a modification to the proposal—whether to the size of the area being mined, to the types of mining being contemplated or to the mitigation measures . . . [another is] granting the application with conditions.”
The panel’s decision may also play a big part in shaping the outcome of the second Zeb Mountain lawsuit which is scheduled to be argued June 20, 2007 at 1:00 p.m. in the U.S. District Court in Knoxville. Stay tuned.