Court Denies Motion to Supplement Complaint With Hendryx Studies

On January 23, 2012, a federal judge denied a motion by anti-mining groups to add a NEPA-based health effects claim to a pending challenge to a “fill” permit issued by the Corps of Engineers. In Ohio Valley Environmental Coalition, et al. v. U.S. Army Corps, et al., Civil Action No. 3:11-0149 (S.D. W.Va. 2012), Doc. No. 84 (“Order”), the Court ruled that the proposed additional claim was “futile.” This case involves a challenge to a permit issued by the Corps of Engineers under Clean Water Act §404 permit for Highland Mining Company’s Reylas Surface Mine located in Logan County, West Virginia. Plaintiffs’ motion claimed that the Corps violated the National Environmental Policy Act (“NEPA”) by failing to supplement its Environmental Assessment (“EA”) of the Reylas permit in light of “new” studies authored by West Virginia University Professor Michael Hendryx. Hendryx, who has three psychology degrees but none in medicine, toxicology or epidemiology, has published several controversial papers purporting to find correlations between health conditions and proximity to coal mining. Even though Hendryx’s papers do not claim that mining “causes” the health effects examined, many blogs and news outlets have cited the reports as evidence that mining is causing health effects such as cancer and birth defects.

The most recent iteration of the Reylas permit was issued by the Corps on September 20, 2011 after the Corps suspended an earlier version of the permit to reexamine portions of its decision document. Soon after the Corps re-issued the permit, OVEC filed a motion for a preliminary injunction and moved to supplement an earlier complaint with its NEPA-based health effects claim.

NEPA is triggered by “major federal actions” and requires an Environmental Impact Statement when such an action will “significantly affect the quality of the human environment.” The Corps’ permit action is considered a “federal action.” Here, the Corps evaluated the application and determined in an EA that the permitted action would not have a significant effect, thereby concluding that no EIS was necessary. OVEC sought to force a reexamination of that decision by relying on the recent Hendryx publications.

NEPA regulations require a federal agency to supplement draft or final environmental impact statements when there are “significant new circumstances or information relevant to the proposed action or its impacts.” 40 C.F.R. §1502.9. The Supreme Court previously held that no supplementation is required if there is no remaining federal action. SUWA, 542 U.S. 55, 72 (2004). The Court ruled that “[t]he major federal action which triggers NEPA compliance in this case is the issuance of a permit, not the mining activity.” Order, p. 3. Determining that the permit had been issued, the Court held that there was no remaining major federal action and hence no new NEPA “trigger.”

Plaintiffs advanced two arguments: (1) that the duty to supplement the EA continued because the impacts of the proposed action were not completed; and (2) that the permit was effectively an “ongoing action” because the Corps retained oversight authority and the power to revoke or modify Highland’s permit at any time. Order, p. 4-5. The Court rejected Plaintiffs’ arguments, determining that “[n]either of Plaintiffs’ inconsistent positions can be correct.” According to the Court, Plaintiffs’ first argument “simply cannot be correct in a world where the impacts of permitting decisions are potentially permanent.” Order, p. 4. Rejecting Plaintiffs’ second argument, the Court observed that while the Corps retains oversight authority, the issuance of the permit is the major federal action requiring NEPA compliance. Order, p. 5. Additionally, the Court stated that following Plaintiffs’ interpretation of relevant case law, applying NEPA after the issuance of the permit, would “render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made.” Order, p. 5.

An interesting sidelight to the NEPA claim was the on-going effort by Highland Mining to examine the underpinnings of Hendryx’s work. Highland had issued subpoenas to West Virginia University and to Hendryx. WVU and Hendryx moved to quash the subpoenas as unduly burdensome and as seeking “privileged” peer-review comments. A judge in the Northern District of West Virginia had denied the motion to quash and ordered WVU and Hendryx to produce responsive documents on February 6, 2012. The Court’s ruling denying the motion to add the supplemental claim has mooted the bases of the subpoenas, and may slow or thwart efforts to examine Hendryx’s work in detail.

This article was authored by Matthew S. Tyree, Jackson Kelly PLLC. For more information on the author see here.