Well, first Alpha Natural Resources didn’t want any discussion about the growing body of science linking mountaintop removal to human illness discussed in the court case over the Reylas Surface Mine proposed by Alpha subsidiary Highland Mining Co. In the process, Alpha’s lawyers convinced U.S. District Judge Robert C. Chambers to block testimony about the health studies — and as an added bonus for the company, the pressure of such legal fights appeared to convince WVU researcher Michael Hendryx — the lead scientist examining such issues — that he didn’t want to testify as an expert witness after all.
Now, Alpha’s lawyers want Judge Chambers to block any testimony in the case from Margaret Palmer, a nationally respected biologist from the University of Maryland who is one of the major players in the science examining the water quality impact of coal-mining in Appalachia. Why? Because Dr. Palmer has dared to speak out publicly about her research and about the policy implications of her scientific findings. Here’s what the company’s lawyers allege in this legal brief filed on Friday:
Highland Mining requests that the Court preclude Plaintiffs from offering expert testimony by Dr. Margaret Palmer because she is a public advocate for Plaintiffs’ cause whose fundamental opposition to all surface mines in central Appalachia, regardless of the mine’s individual characteristics, renders her opinion both untrustworthy and unhelpful to the Court … Dr. Palmer has been an outspoken critic of surface coal mining in central Appalachia for several years and has claimed repeatedly that it is impossible for any surface coal mine in central Appalachia to comply with the Clean Water Act.
Regular Coal Tattoo readers know that Dr. Palmer was one of the major authors of among the most significant scientific papers to date about mountaintop removal, the January 2010 piece in the widely read journal Science, which concluded:
Despite much debate in the United States, surprisingly little attention has been given to the growing scientific evidence of the negative impacts of MTM/VF.
Our analysis of current peer-reviewed studies and of new water-quality data from WV streams revealed serious environmental impacts that mitigation practices cannot successfully address. Published studies also show a high potential for human health impacts.
What everyone may not realize is that Dr. Palmer has nearly 30 years experience studying water quality issues and has more than 150 research publications or collaborate projects on the issues to her name. (You can read her full C.V. online here). Dr. Palmer is also director of the new National Socio-Environmental Synthesis Center, a National Science Foundation-funded center that aims to bring together scientists from various fields to use science to find answers to many of our world’s most pressing problems.
Keep in mind that, in mountaintop removal cases, Dr. Palmer’s role has been to testify about whether mine operators can really do what they claim to be able to do — rebuild Appalachian headwater streams, recreating the important ecological functions of the waterways buried or mined through by large-scale surface coal mining (see here, here, here, here, here and here for examples of her scientific papers on this issue — a full publication list is online here).
So what are Alpha officials and company lawyers so outraged about that they don’t want Judge Chambers to even hear what Dr. Palmer has to say?
Boiled down, they don’t like the notion that scientists actually talk to the public (often through the press) and dare to touch in those discussions on the policy implications of their work. For example, their legal motion, the company’s lawyers made much of this press conference held by the University of Maryland for Dr. Palmer and others to discuss their January 2010 paper in Science:
Here’s what the Alpha lawyers said about the press conference:
A day before the Science column was to appear in print, Dr. Palmer and several of her colleagues booked the National Press Club to unveil their findings and, more importantly, their sweeping policy recommendations. At the press conference, Dr. Palmer unequivocally stated that “[We] all agree that the science is so overwhelming that the only conclusion one can reach is that mountaintop-mining needs to be stopped.” When the panel was asked if they were calling for a moratorium on new surface mining permits and for existing permits to be halted, one of Dr. Palmer’s colleagues, William Schlesinger, responded on behalf of the group: “Certainly we’re calling for a moratorium on permits until the issue can receive a rational hearing and the science we’ve put together can be brought to bear on that in a public and policy forum. That might very well lead to no new permits being issued if people see the issue as starkly as we do.”
It’s worth re-reading the context in which the Science paper itself made any sorts of policy recommendations:
Clearly, current attempts to regulate MTM/VF practices are inadequate. Mining permits are being issued despite the preponderance of scientifi c evidence that impacts are pervasive and irreversible and that mitigation cannot compensate for losses. Considering environmental impacts of MTM/VF, in combination with evidence that the health of people living in surface-mining regions of the central Appalachians is compromised by mining activities, we conclude that MTM/VF permits should not be granted unless new methods can be subjected to rigorous peer review and shown to remedy these problems. Regulators should no longer ignore rigorous science.
The Alpha lawyers go on to recount a number of media interviews which they allege show “Dr. Palmer’s transformation from a scientist to a anti-surface mining political advocate,” a change, they allege, means no court she ever hear what she has to say about the science on mountaintop removal. Incredibly, here’s one of the examples that Alpha’s lawyers decide is a fair comparison to Dr. Palmer:
… In U.S. v. Kelley, a man charged with possessing marijuana with intent to distribute sought to call as an expert the co-founder of the pro-marijuana magazine High Times. The government objected to this expert’s testimony, claiming the expert was a marijuana advocate “who will always testify that no matter how much marijuana an individual possessed, it was a personal use quantity.” While the court ultimately allowed the marijuana advocate to testify on a limited set of issues such as cultivation techniques, the court did so only after scrutinizing the expert to see if his bias would impact the relevance or reliability of his opinions. “While the court believes that Rosenthal’s obvious impartiality and bias towards those charged with marijuana offenses does not disqualify him from becoming an expert, the court believes Rosenthal’s self-created advocacy role can be just cause for taking more care in determining his qualifications, the relevance and reliability of his opinions, and the factual foundation for his opinions.”
Interestingly, that same case — U.S. v. Kelley — says that “impartiality is not a requirement for being an expert witness” and that “bias of expert witness relates to weight, not admissibility, of his or her testimony, and thus should be brought out on cross-examination,” meaning Alpha shouldn’t be trying to kick Dr. Palmer out of the case, but instead focusing on whether they can show during cross-examination that the judge shouldn’t pay any attention to her.
Perhaps even more important than obscure legal cases about when experts can and can’t testify is whether this kind of pressure from the coal industry results in leading scientists who can inform the public debate retreating for their important role in education the public, through the press and otherwise, about these kinds of issues. The December issue of the journal Nature, had a fascinating article about how hesitant many scientists are to jump into the policy field this way, and the author quoted Dr. Palmer as one of those who initially wasn’t too big on talking to reporters:
Back in 2001, I sat at the rear of a classroom with Jane Lubchenco, co-founder of the Aldo Leopold Leader ship Program, while scientists stepped forward to share their fears and failures concerning communicating with the media and policy-makers. “I get a lot of calls from the press, and I don’t return most of those calls,” confessed Margaret Palmer, a restoration ecologist at the University of Maryland in College Park. A wave of sympathetic laughter rippled through the audience.
After that two-week communications training workshop, Palmer decided to change her ways. Earlier this year, she co-authored a paper challenging US government policies that allow irreversible ecological damage through mountain-top mining in the pursuit of cheap coal1. An avalanche of attention included an invitation to appear on the satirical television show, The Colbert Report. This time Palmer returned the call.
Despite Stephen Colbert’s bombastic efforts to disarm her, Palmer laughed, leaned in and scored a series of carefully prepared points while 1.2 million viewers watched.
The article, by Nancy Baron, offers this bit of helpful insight into these situations:
It’s important to remember that not answering what policymakers want and need to know leaves a void — one that contrarians are only too happy to fill.
In the case of mountaintop removal, if scientists like Dr. Palmer aren’t willing to speak out, then the coal industry’s huge PR machine will certainly fill the void.
Alpha Natural Resources is among the funders of the ARIES project based at Virginia Tech, a coal industry effort aimed at, according to its most recent newsletter, telling the public “What the Science Really Shows” about issues like water pollution and human health impacts of strip-mining. It might be easier to believe that coal companies want us to know what the science really shows if their lawyers didn’t spend so much time trying to keep science out of the courtroom.