In a much-followed motion on a major permit challenge, U.S. District Judge Robert C. Chambers has refused to allow citizen groups to argue that the federal Army Corps of Engineers wrongly failed to consider the growing scientific evidence that links living near mountaintop removal mining operations to increases risks of serious health problems, such as birth defects and cancer.
Judge Chambers issued his ruling on Monday, and I’ve posted a copy of his six-page opinion and order here. Readers may recall that Alpha Natural Resources was fighting an effort by the Ohio Valley Environmental Coalition and other groups to present testimony about the long list of West Virginia University studies that have raised serious questions about mountaintop removal’s public health impacts. OVEC and the other groups are challenging a Clean Water Act permit the Corps issued for Alpha’s proposed Reylas Surface Mine in Logan County.
The judge cited the provisions of one of the Federal Rules of Civil Procedure, and a U.S. Supreme Court case that says that lawsuits like this one should generally be allowed to be amended or supplemented unless the proposed amendment would be “futile.” He also cited case law that describes how the National Environmental Policy Act purports to apply to these situations (see here, and here, for example).
Judge Chambers made two central points in this short decision.
First, he ruled that the Corps had already issued the permit, so that any federal action requiring NEPA review was over and done with — despite the fact that the actual, on-the-ground mining work that the plaintiffs are concerned about hasn’t started yet. Commenting on what citizen groups were trying to do, the judge wrote:
… The Corps’ duty to supplement [its analysis of the proposed permit] would continue so long as environmental impact remains to be realized from the permit decision. This position simply cannot be correct in a world where the impacts of permitting decisions are potentially permanent … Once the proposed action [which the judge defines as permit issuance — not mining activity] is completed, an agency’s duty to supplement terminates.
Second, the judge concluded that even if he allowed the citizen group lawyers to get the health studies into the case, they would still not be able to prove that the Corps’ failure to consider them in the permit review was arbitrary and capricious, the legal standard for overturning a Clean Water Act permit issuance. According to Judge Chambers:
Where, as here, the new claim is based on studies first published after the agency has met its initial NEPA obligation, the inquiry ‘must be framed in terms of information available during a specific time period, with recognition of the fact that an agency cannot have acted arbitrarily unless it has had a reasonable time to consider the alleged new information.
More specifically, Judge Chambers argued:
Having been presented with the newly published Hendryx studies for the first time in this lawsuit, the Corps has not had a reasonable opportunity [to] consider them, let alone to take action that could be found to be arbitrary and capricious.
One thing that’s worth pointing out though: While it’s true that the specific studies by WVU’s Michael Hendryx were published after the Corps’ permit review — it’s also true that Hendryx and others had published quite a lot of other studies raising these same questions prior to the permit being issued in March 2011. More than a dozen of the studies came out between 2008 and 2010 … in plenty of time for federal regulators to consider them in making permit decisions.
It sure would have been interesting to see Corps officials — who concluded “no human health effects are anticipated as a result of the proposed project” — regularly monitor major public health journals or make it a point to consult with scientists who do follow such things. Remember, this is an agency that testified under oath that it never really intended to regulate valley fills under Section 404 of the Clean Water Act, but “just sort of oozed into that.“
So it’s certainly interesting that word of Judge Chambers’ ruling comes out just on the heels of yesterday’s release of the West Virginia Department of Environmental Protection’s study proclaiming that drinking water in the community of Prenter is safe, and free of any dangerous pollutants from coal-mining activities. Our print story on that study is also online and I’ve added a second piece by Vicki Smith over at AP to our Mining the Mountains website here. Vicki’s story adds these comments to the mix from attorney Roger Decanio, who represents hundreds of people who sued eight coal companies over the alleged pollution:
The DEP really lacks the credibility to say anything about the regulation of coal mining in West Virginia, and it has been lacking credibility for many years. They are nothing but a shill of the industry.
(Not for nothing, it is worth remembering that WVDEP Secretary Randy Huffman himself has said ‘we’re not health experts.’)
And somewhat ironically, just as we were learning of Judge Chambers’ decision, the Kentucky Environmental Foundation was releasing a fascinating report called Health Impact Assessment of Coal and Clean Energy Options. From their press release:
In a state almost exclusively reliant on coal for electricity generation, a new health assessment released today concludes that people in Kentucky are sick from coal production, and that state officials need to urgently focus on how to create energy supplies that ensure the health and well being of all Kentuckians.
The report itself finds:
Coal has provided reliable electricity to Kentuckians for decades and has provided many Kentuckians with the benefits of employment, but
at a substantial cost to the health of people in the Commonwealth.
Data reviewed for this health impact assessment clearly indicates that coal poses significant health risks to people working at or living near coal facilities at each phase of its cycle – mining, processing, transportation, combustion, and waste disposal. Accidents in underground mines, and at or near surface coal mines can injure or kill workers or people living nearby. Pollution including soot, smogforming chemicals, greenhouse gases and heavy metals travels through the air or water and can impact the health of people living close to coal-related activities, and the general public living hundreds of miles from the pollution source.
Elizabeth Crowe, Executive Director of the Kentucky Environmental Foundation said:
It’s time Kentucky legislators rally around saving lives, rather than the reputation of the coal industry, and stand up for the ability of our children to grow up healthy and strong. We’re ready for a new conversation about energy policy: decision making as if our health really matters.