The court said in a unanimous opinion that a Kanawha County Circuit judge correctly upheld a state Surface Mine Board decision approving a permit for the silo. The board had approved the permit after it was rejected by the state Department of Environmental Protection.
In the opinion written by Justice Menis Ketchum, the court rejected Coal River Mountain Watch’s argument that the permit shouldn’t be issued because of an inaccurate map. Coal River Mountain Watch contended a map submitted with the permit application placed the silo outside the mine’s boundary.
Markers at the site put the silo inside the boundary and the court said state and federal law clearly define the permit area of a surface mine as the area indicated on the map and identified by markers.
The silo has long been the subject of litigation and protests between surface mining foes, environmentalists and Appalachian coal mining giant Massey Energy Co. The Richmond, Va.-based company’s Goals Coal Co. subsidiary already has one storage silo near Marsh Fork Elementary in Raleigh County and maintains that building a second one would reduce airborne dust in the area.
Massey is glad the case is over and the court agreed with its position, company spokesman Jeff Gillenwater said in an e-mail.
Coal River Mountain Watch blasted the decision.
“The West Virginia Supreme Court has once again proven that coal company profits outweigh law, science, justice, and basic human decency,” the group said. “The court has given Massey Energy the go-ahead to put more tons of fine coal dust in the air that children breathe every school day during their crucial development years. Placing a second coal silo within 300 feet of the school is a clear violation of the intent of the law, which is to protect the public.”
The group called on Gov. Joe Manchin and Raleigh County to replace the school.
Chief Justice Brent Benjamin did not take part in the decision. The case was argued this spring, during a period when Benjamin disqualified himself from appeals involving Massey while the U.S. Supreme Court reviewed an unrelated case in which he voted with the majority to overturn a jury verdict against the company.
The nation’s highest court overturned that case Monday, ruling elected judges must step aside from cases when large campaign contributions from interested parties create an appearance of bias. Massey Chief Executive Don Blankenship spent more than $3 million to help Benjamin win election in 2004.
The opinion also made it clear the state’s only appellate court is not going to become embroiled in policy questions that should be decided by lawmakers.
“It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal Constitutions,” Ketchum wrote.