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.






















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