U.S. District Judge Robert Chambers of West Virginia won't allow citizen and environmental groups to argue the Army Corps of Engineers "wrongly failed to consider" scientific evidence linking health problems, including cancer and birth defects, to mountaintop-removal coal mining, reports The Charleston Gazette's Ken Ward Jr. The groups wanted to present testimony about studies conducted by Michael Hendryx of West Virginia University in permit hearings for Alpha Natural Resources' proposed Reylas mine in Logan County.
Ward says Chambers cited the Federal Rules of Procedure and a U.S. Supreme Court decision that "says lawsuits like this one should generally be allowed to be amended or supplemented unless the proposed amendment would be 'futile'." He made two points in his decision: the Corps had already issued the permit, so any review of it was "over and done with," even though mining hasn't started; and, if the groups had been allowed to put the studies in the permit review, they still couldn't prove the Corps' failure to consider them "was arbitrary and capricious." He also said even if he'd let the studies be considered, the Corps didn't have enough time to review them.
Though some Hendryx studies were published after the Corps' permit review, several others raising the same questions were published before the permit was issued in March 2011, Ward writes. More than a dozen studies by Hendryx and others came out in 2008-10. "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," Ward writes on his Coal Tattoo blog. He also points out the decision was made on the heels of a state Department of Environmental Protection study concluding that drinking water is safe in the community nearest the proposed mine, and a report (see next item) from the Kentucky Environmental Foundation proclaiming "people in Kentucky are sick from coal production." (Read more)
Ward says Chambers cited the Federal Rules of Procedure and a U.S. Supreme Court decision that "says lawsuits like this one should generally be allowed to be amended or supplemented unless the proposed amendment would be 'futile'." He made two points in his decision: the Corps had already issued the permit, so any review of it was "over and done with," even though mining hasn't started; and, if the groups had been allowed to put the studies in the permit review, they still couldn't prove the Corps' failure to consider them "was arbitrary and capricious." He also said even if he'd let the studies be considered, the Corps didn't have enough time to review them.
Though some Hendryx studies were published after the Corps' permit review, several others raising the same questions were published before the permit was issued in March 2011, Ward writes. More than a dozen studies by Hendryx and others came out in 2008-10. "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," Ward writes on his Coal Tattoo blog. He also points out the decision was made on the heels of a state Department of Environmental Protection study concluding that drinking water is safe in the community nearest the proposed mine, and a report (see next item) from the Kentucky Environmental Foundation proclaiming "people in Kentucky are sick from coal production." (Read more)
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