In Chesapeake Bay Foundation, Inc. v. Com., the Virginia Court of Appeals in an opinion by Judge Elder joined by Judge Humphreys and Senior Judge Coleman overruled the dismissal for lack of standing of a challenge brought by the CBF against a permit issued by the State Water Control Board. The AP had this story on the case.
One of the arguments, strangely enough, was that the panel should have ignored the Court's earlier panel decision in Chesapeake Bay Foundation and Citizens of Stumpy Lake v. Commonwealth, 46 Va. App. 104, 616 S.E.2d 39 (2005). On this point, Judge Elder wrote:
"Appellees recognize that stare decisis may bind us to follow the decision in Stumpy Lake. Nevertheless, quoting Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457 (1990), they argue we are not so bound if we find that the decision in Stumpy Lake was based on 'flagrant error or mistake.' Appellees misconstrue the holding in Burns, which permits this Court to correct '"flagrant error or mistake"' in a panel decision . . . through the en banc hearing process.' Burns, 240 Va. at 174, 395 S.E.2d at 457. Contrary to appellees’ assertions, Burns affirms the principle that the decision of one panel is binding on all other panels unless and until reversed by the Court sitting en banc or by a higher court on appeal."
It sounds like this is not an issue that will soon die out for lack of interest, if the Commonwealth's lawyers think the Virginia Court of Appeals has got it wrong.