Mountaintop removal and birth defects: Just what are the coal industry’s lawyers talking about?

July 11, 2011 by Ken Ward Jr.

It’s no surprise that lawyers from the firm Crowell & Moring are attacking the latest study by Melissa Ahern and West Virginia University’s Michael Hendryx indicating that people who live near mountaintop removal operations face a greater risk of birth defects.

But the internet posting from four of the firm’s lawyers — Clifford J. Zatz, William L. Anderson, Kirsten L. Nathanson, and Monica M. Welt — was, well, here’s what it said:

The study failed to account for consanquinity [sic], one of the most prominent sources of birth defects.

UPDATED: Crowell and Moring appears to have deleted this post from their law firm website … luckily, I saved it and have reposted it here so everyone can see it.

UPDATE 2: Nicole Quigley, a spokeswoman for Crowell & Moring, has issued this comment in response to my questions about their webpost and its disappearance —

Our website alert is not intended to reflect views of the National Mining Association, but is an attempt to identify certain potential weaknesses of the study in question. Consanguinity is one of a number of commonly addressed issues in studies of this type, regardless of geography. Scientists address this consideration regularly because it can matter to scientific conclusions, and do so regardless of locale. We did not raise this issue with particular reference to any region, and we did not mean to imply any such thing. That said, we apologize for any offense taken, as none was intended. We can appreciate the view that our alert may not have provided enough context to explain the scientific points we aimed to address, and so have removed it from our site.

I first saw this on a Facebook posting from our friend Bob Kincaid of Coal River Mountain Watch.  Bob was not amused, alleging that Crowell & Moring (lawyers for the National Mining Association and various coal companies) had tried to blame the birth defects on “incest,” and writing in one comment:

Nice of the National Mining Association and their hired guns at Crowell-Moring to tell us how they REALLY feel about us!

I guess I really wanted to give the industry lawyers the benefit of the doubt. Perhaps they meant to simply suggest that having lots of people who are related — several generations, siblings, cousins — all living in nearby h0llows near mining operations was something that needed to be studied. After all, there is evidence that some birth defects can have genetic causes.

I looked up consanguinity (I was pretty sure that was the word they meant to use, not consanquinity) and found that it meant:

… The property of being from the same kinship as another person. In that respect, consanguinity is the quality of being descended from the same ancestor as another person. Consanguinity is an important legal concept in that the laws of many jurisdictions consider consanguinity as a factor in deciding whether two individuals may be married or whether a given person inherits property when a deceased person has not left a will.

So, I asked Michael Hendryx about this … here’s what he said:

Consanguinity refers to levels of shared ancestry. It is a reference to in-breeding, not necessarily incest, but still insulting.

Consanguinity it is not just the same families living in the same area unless related members of those families are interbreeding.

Maybe they are referring to third cousins or distant relatives that might intermarry, but   1) research on whether higher birth defects occurs for relatives more distant than first cousins is very sparse,  2) they’d have to argue that MTM areas had more of these interbreeding pockets than other rural areas, and  3) they still don’t account for the higher effects found in recent time and in proximity to higher mining. This is another one of these attempts to say what the effects “really” are as an excuse to deny the serious health problems in MTM areas that exist across many health outcome measures. The reasons are partly due to the poor socioeconomic conditions that mining creates (not that are correlated with mining, but that mining creates), and may be due to the environmental pollution caused by mining.

The whole thing reminded me of an important study (with a great title) by anthropologist Robert Tincher, “Night Comes to the Chromosomes: Inbreeding and Population Genetics in Southern Appalachia.” Based on 140 years’ worth of marriage records, the study concluded that “inbreeding levels in Appalachia … are neither unique nor particularly common to the region, when compared with those reported for populations elsewhere or at earlier periods in American history.”

I emailed all for of the lawyers listed as authors of the web posting, asking them to explain what they meant. I haven’t heard back from any of them yet today, but if I do, I’ll post what they have to say — or I invite them to comment directly on this blog.

I also asked Carol Raulston, spokeswoman for the National Mining Association, about all of this. She said her organization had no role in the law firm’s web posting, but that she didn’t think anyone was saying that inbreeding was the cause of the birth defects reported in the Hendryx paper.

By the way, here’s what Michael Hendryx had to say about the other criticisms of his latest paper:

The criticisms raised are to be expected. I disagree that we overstated our findings. I think we’ve been appropriately cautious in what we say about limitations of the study and conclusions. This paper can’t be considered in isolation but should be taken with the more than dozen other studies that continue to document serious health problems related to mining. Regarding the dose response critique specifically, we did measure earlier versus later effects and found stronger effects in the later period as effects of mining have accumulated. We also found spatial correlation effects indicating an effect as mining activity occurred in a greater number of surrounding counties. Both of these indicate greater effects with greater exposure — dose response.

9 Responses to “Mountaintop removal and birth defects: Just what are the coal industry’s lawyers talking about?”

  1. well done! Mercury in the New Martinsville area continues to be a serious problem and health issues are blamed on other factors…blaming the victim sinks to new lows! time to use technology to monitor the real problems and stop letting poisoning go on.

  2. Jim McKay says:

    The attorneys haven’t had time to respond to your request for comment, but they deleted the posting from their website. Hmm…

  3. Ralphieboy says:

    This pretty much sums up how the coal industry has always felt about the people of Appalachia. In their eyes, we are nothing but poor, dumb, inbred, mountain trash that don’t deserve to be treated with basic human dignity. It’s not enough that they poison us and destroy our homeland, but then they insult us on top of it. It’s time for West Virginia to throw off the yoke of coal oppression and start working toward a future without coal.

  4. coalfire says:

    I think a lot the birth defects could be due to improper health care during pregnancy. Many of these people in that region do not take care of their health properly.

  5. Ken Ward Jr. says:


    Did you read the study? You might want to do so before commenting.

    For example, the study authors reported:

    Elevated birth defect rates are partly a function of socioeconomic disadvantage, but remain elevated after controlling for those risks, suggesting that environmental influences in mountaintop mining areas may be contributing factors to elevated birth defect rates. Findings are consistent with research showing greater land, water, and air disturbance occurring in mountaintop mining areas.

    We outlined that in this blog post, which I linked to above as well:


  6. Buck Dillard says:

    When I first read this post, I wondered what motive a Washington, D.C. law firm would have to go smear a scientific study from the coalfields. Then I read the “Alert” itself, and realized that it is a combination of fear-mongering (within the industry community) and advertising. Basically, “your company is going to get sued over this birth defect business, and we are the lawyers who will get you off the hook for it.”

    The alert concludes by stating, “Crowell & Moring has significant and experience in both community and birth defect litigation and can address both the strategies and science involved. To further discuss this study or your company’s environmental litigation defense strategy, please contact any of the attorneys listed on this alert.”

  7. Dana Cochran says:

    The Crowell & Moring “consanquinity” statement is cached on the Martindale site as it appeared July 5 on its Legal Library page:,+M.M.+association+between+mountaintop+mining+and+birth+defects&cd=6&hl=en&ct=clnk&gl=us&

    The post appears to have been removed from the Martindale page.

    I would also have to challenge the statement that “consanquinity” (sic) is “one of the most prominent sources of birth defects.” Prominent is a big word. Where does this prominence exist? Another broad, general and unsupported bullet point that “ecological” design studies are the “weakest form of epidemiology study” seems to pander to the tired critiques of all things “environmental.” Citations please, Crowell & Moring!

  8. Soyedina says:

    Dana, “ecological study design” is not a reference to environmentalism but is a specific kind of analysis in epidemiology ( The intent of this criticism appears to be that Ahern et al. have not tracked individuals for particular effects of particular stressors (associated with MTR).

    This is not a weakness of these studies, it’s a feature! This study, and others, establish that there are statistically significant spatial clusters of public health pathologies that are coincident or co-occur with surface coal mining in C Appalachia.

    Those patterns demand explanation. If we accept, for example the “consanguinity” explanation, this changes the narrative somewhat. compare:

    “Even after controlling for many socioeconomic and behavioral factors, birth defect rates are higher in areas with MTR”


    “Birth defect rates are higher in areas with MTR, which may be due to people in areas with MTR being all kin to each other”

    The explanations proposed by Mssrs Crowell & Moring et al. do not deny the pattern! This point appears to have failed to have arrived anywhere near their attention before they posted the “review”.

  9. If we are such simple-minded, innate mountain people then how could we ever be so bright as to even think that birth defects and other health problems could be a result of surface mining’s poisonous discharge into our drinking water streams… and wells? According to King Coal’s prestigious lawyers, you would think we would be more concerned with being back on an old strip mine road trying to make out with our sisters or mothers then worrying about our health. You would surely not think that King Coal would be concerned enough to hire such high paid lawers like Crowell & Moring to try and cast doubt on health study results from surface mining. We, (the Appalachian People) already know and have known this for years. We have had to watch our families, our friends, and our neithbors that live down stream from surface mining die with so many dreaded and rare health problems and witnessed the higher rate of birth defects among our children. King Coal and his lawyers may want to hide these health studies and blame their problems on unnatural behavior among our mountain people, but I don’t buy it. I’ve seen too much death and other problems among too many good, God fearing , mountain folks to even consider something like this!! This is an insult to the intelligence of all Appalachian folks!!

Leave a Reply