(AP Photo/Evan Agostini for The Greenbrier Resort, File)
There’s been a flurry of response from both Jim Justice and his supporters to the blockbuster story by NPR (along with West Virginia Public Broadcasting and Ohio Valley ReSource) about Justice’s $15 million in unpaid taxes and fines. Some supporters, like the United Mine Workers, are rushing to defend Justice, and others — like the state Democratic Party — are trying to deflect attention with one of those “I know you are, but what am I” stories the career campaign consultants want our elections to be all about.
Having watched the national media kick our butts on this story, pulling together all of the pieces in a way that they hadn’t been before, it seemed like the least we could do was to do a little bit of fact-checking on the response to the NPR story. So here is a little question-and-answer session I did via email with Howard Berkes:
Coal Tattoo: In a statement issued yesterday, the United Mine Workers of America defended Jim Justice, saying that Mr. Justice’s “fines are, in fact, being paid right now.” What can you say from your reporting about that? To what extent are the MSHA fines “being paid right now”?
Berkes: It is true that Justice’s mining companies are making $75,000 a month in payments as stipulated in a payment plan with the Mine Safety and Health Administration (MSHA). That payment plan was signed on December 30,2015, and covers $1,546,363.04 in delinquent mine safety penalties that are under MSHA’s jurisdiction (payment plan documents [posted here]) in the form provided by MSHA in response to a FOIA request). Another $1,751,107 in delinquent mine safety penalties (including interest and fees) is at the Treasury Department for collection and is not covered by a payment plan, according to a detailed list of delinquencies as of 7/31/2016 and provided to NPR in response to a FOIA request. Some of the delinquent penalties at the Treasury Department have been referred to the Department of Justice for possible litigation and others are pending referral to DOJ.
Coal Tattoo: Exactly how far overdue are these penalties, generally speaking? Are any of them penalties that are still being contested, or appealed, by the Justice companies involved?
Berkes: All of the penalties in our analysis are officially final. They have been through any challenges and appeals. None are contested. We eliminated from our analysis any delinquent penalties listed by MSHA as “On Hold” because they were recalled for further review. The oldest penalties go back to August, 2009, and as we reported, there were $1,381,408 in newly delinquent penalties since January of 2014, when we first engaged with Justice and his mining companies, who said the delinquent penalties would be paid.
Coal Tattoo: What can you tell use from your reporting about the extent to which the total overdue debts you reported on — some $15 million — were for taxes or other things that are not MSHA fines and therefore not part of any payment plans with the federal government?
Berkes: Only $1,546,363.04 in mine safety penalties is covered by a payment plan with the federal government. There are county payment plans for $4,555,297.29 in delinquent county taxes in Kentucky. Some of those plans were in default until the last few weeks. But as of last week, the Justice companies are making payment on all payment plans in Kentucky. We documented one county payment plan in Virginia in Tazewell County. That payment plan began after the county sheriff seized mining equipment. We also documented one county payment plan in Alabama.
We found no evidence of payment plans, and the Justice companies did not assert the existence of payment plans, for $3,107,854.95 in federal tax liens in Kentucky, Virginia and West Virginia, and $3,941,541.59 in state tax liens in South Carolina, Tennessee, Virginia and West Virginia. Our spreadsheet summarizing Justice company debts by states and counties [is posted here].
Coal Tattoo: Are you aware of any movement since the publication of your story toward paying these other overdue debts? And have Justice, his companies or his campaign questioned the accuracy of anything you reported?
Berkes: We have been in contact with the Justice companies and campaigns about our findings since early August, sharing our data and offering an opportunity to dispute the data and comment. In our first contact, Justice mining executives noted that some of the delinquent penalties listed by MSHA as unpaid in the data provided to us were listed as paid in MSHA’s Mine Data Retrieval System (MDRS). We then reviewed every delinquent penalty and also confirmed with MSHA the status of penalties listed in the MDRS. We then removed from our analysis and findings the penalties listed as paid in the MDRS. Justice COO Tom Lusk has provided updates on payment plans. We documented the revival of dormant payment plans, some of which occurred after county attorneys threatened lawsuits and after we contacted Lusk. Some counties confirmed that they were discussing payment plans before we contacted Lusk. There’s no question that Lusk was pursuing some of these payment plans, and some existed, before we contacted the Justice companies. We’re not aware of any payments since our story was published last week.
Coal Tattoo: Justice indicated in Tuesday night’s debate that he doesn’t believe that not paying fines or taxes on time is part of any buiness plan or practice or pattern of his. But didn’t your reporting describe a pattern in which such debts weren’t paid, until attention was brought — either by the press or a lawsuit — over one particular set of bills, and those bills would then be paid, while perhaps others not brought to public attention continued to go unpaid or even got larger?
Berkes: We found coincidental timing of some payments and payment plans. When the Gazette-Mail reported nearly $4 million in delinquent county taxes in West Virginia in April, most were completely paid-off in two weeks. When the county sheriff in Tazewell County, Virginia, seized mining equipment at a Justice mine in March, a payment plan began. When the county attorney in Harlan County, Kentucky, filed suit in October, a payment plan followed. When the county attorney in Knott County, Kentucky, sued and filed two motions for summary judgement in August and September, a payment plan followed. When NPR reported delinquent mine safety penalties in 2014, a payment plan followed (though two years later). In Pike County, Kentucky, we were told, a Justice mining company was not responsive until after NPR told Justice representatives that we were going to report delinquent taxes.
We also found that some Kentucky county payment plans defaulted in this same time frame. Payments suddenly stopped, county officials told us, in January, April and May, and recently resumed.
Republican presidential nominee Donald Trump and Democratic presidential nominee Hillary Clinton speak during the second presidential debate at Washington University in St. Louis. (AP Photo/Patrick Semansky, File)
Despite some of the recent talk about coal and energy issues in the presidential race between Republican Donald Trump and Democrat Hillary Clinton, it seems that the United Mine Workers of America union’s political arm is going to stay out of the fray.
UMWA spokesman Phil Smith told me this morning that an endorsement of either candidate is “highly unlikely” at this point.
So far, Smith said, no state UMWA political councils have recommended such an endorsement to the union’s national political council, which is made up of members of the UMWA International Executive Board. That national council is the body that would vote on any presidential endorsement, Smith said.
In the UMWA’s political work, the endorsement process starts with area political councils, which make recommendations to state councils on state races. State councils then make recommendations to the national council for federal races. But Smith noted that all of the state council meetings for this election have already occurred. There’s still a chance of some movement that would result in a national council vote, but again, Smith said that is “highly unlikely.”
Readers may recall that, after endorsing Democrat Barack Obama in 2008, the mine workers did not make a presidential endorsement in 2012. And as we discussed four years ago, a non-endorsement isn’t necessarily out of the ordinary for the UMWA.
Just a few hours before the second and final debate between gubernatorial candidates Jim Justice and Bill Cole — and in the wake of last week’s devastating report about Justice by NPR — the United Mine Workers union is stepping up to defend their candidate. Here’s UMWA President Cecil Roberts in what the union says is a “reality check” on which candidate is best for mine safety:
I read the NPR story regarding the mine safety fines incurred by mines operated by companies that Jim Justice owns. Let me be clear: I believe his company needs to pay any fines it has incurred. My understanding is that those fines are, in fact, being paid right now.
But if we want to talk about which candidate for West Virginia Governor cares more about the health and safety of working miners, let’s make sure the facts are clear. Jim Justice has never questioned the need for mine safety laws and regulations.
The prepared statement from President Roberts went on:
Bill Cole hasn’t just questioned whether we need safety laws for West Virginia miners, he played a key part in slashing the state’s mine safety and health law in 2015. First, the law Bill Cole pushed through the State Senate abolished a commission that was charged with making sure miners weren’t breathing harmful diesel exhaust emissions while working underground.
Second, Bill Cole agreed with those who thought it was not a problem for miners to have to carry an injured miner 1,500 feet to get to mechanized transportation and then be brought outside for medical treatment. Anyone who has ever walked underground over broken rock and lumps of coal knows how difficult that is at the best of times. Trying to do that over the equivalent of five football fields while rushing to get an injured co-worker to safety is the last thing miners need to be doing.
And third, Bill Cole supported putting miners’ lives in danger by allowing companies to move large equipment around in a mine and putting that equipment between working miners and escape routes if something bad happens. This law was put into place back in the 1970s when miners were killed as a result of this practice. We should never allow something to happen underground that we know has already lead to miners’ deaths. But Bill Cole did.
The UMWA is talking about the legislation described in this story, and which a top union official and state legislator criticized in this op-ed piece, saying:
This extreme legislation loosens coal mining safety regulations to the benefit of big corporations without any regard for worker safety.
A CSX train loaded with coal winds its way into the mountains in this photo taken near the New River at Cotton Hill in Fayette County, W.Va. (AP Photo/Jeff Gentner)
There’s an important new study out that goes to the heart of the political discussion in West Virginia about the coal industry’s decline. Here’s the press release from the authors at Case Western University:
Cheap shale gas produced by fracking has driven the decline in coal production in the United States during the last decade, researchers at the Great Lakes Energy Institute at Case Western Reserve University have found.
Power plants, which use 93 percent of the coal produced nationally, have been operating under the same EPA regulations signed into law by President George H.W. Bush in 1990. Proposed new rules since then have all been challenged in court and not implemented until June 2016, when the EPA’s restrictions on mercury and other toxic emissions were approved by the U.S. Supreme Court.
Consumption of coal continued to grow under those 1990-era EPA rules until 2008, and then went into steady decline, dropping by 23 percent from 2008 thru 2015.
The data show the drop in those years to be correlated with the shale revolution, as natural gas production increased by a factor of more than 10 and its price dropped in half, the researchers say. And, due to the continuing–and in some cases accelerating–technological and economic advantages of gas over coal, the decline in coal is expected to continue at least decades into the future.
Mingguo Hong, associate professor of electrical engineering and computer science at Case Western Reserve and co-author of the study, said:
Some people attribute the decline in coal-generated electricity to the EPA’s air-quality rules, even calling it ‘Obama’s war on coal . While we can’t say that the EPA rules have no impact — as, for example, discouraging the building of new coal power plants because of the expectation that tougher air-quality rules will clear the courts — the data say the EPA rules have not been the driving force.
Hong and co-author Walter Culver, a founding member of the Great Lakes Energy Institute Advisory Board at the university, say the data show that shale-gas competition is what’s been hurting coal as of today. They expect that, as wind and solar sources of electricity continue to improve, they will be tough competitors to coal in the not-distant future. According to Culver:
If you’re a power plant operator and you see gas supply is continuing to increase and natural gas can do the job cheaper–by a lot–the decision to switch from coal is pretty easy. As we look toward the future, we see no natural mechanisms that will permit coal to recover.
Republican presidential candidate Donald Trump puts on a miners hard hat during a rally in Charleston, W.Va., Thursday, May 5, 2016. (AP Photo/Steve Helber)
If coal and energy issues are at the top of the list of things you care about, you had to sit through a lot of other stuff during last night’s presidential debate, but eventually you heard from Republican Donald Trump and Democrat Hillary Clinton on this issue.
It was the next-to-last question from an audience member:
What steps will your energy policy take to meet our energy needs, while at the same time remaining environmentally friendly and minimizing job loss for fossil power plant workers?
Over at West Virginia MetroNews, Brad McElhinny ran through their responses in a piece posted earlier this morning. Brad also cited “fact-check” stories by the Los Angeles Times and the Associated Press. They mostly focused on the question of whether Secretary Clinton wants to put all of the nation’s coal miners out of work, an issue that is more political theater than policy or reality (see my previous analysis of this whole question here).
The thing that really needs fact-checked from this whole exchange is this from Mr. Trump:
There is a thing called clean coal. Coal will last for 1,000 years in this country.
Coal will last for 1,000 years in this country? Really? Wow.
Remember this from four years ago? That time that then-GOP presidential nominee Mitt Romney said, in an ad attacking President Obama’s “war on coal”, said: “We have 250 years of coal, why wouldn’t we use it?”
In new campaign ads criticizing the Obama administration’s coal policies, Republican presidential candidate Mitt Romney cites an estimate of the nation’s remaining coal reserves that has been increasingly questioned as overly optimistic.One of two new Romney ads includes footage of his visit last month to an Ohio coal mine, with a voiceover of a Romney speech where he says, “We have 250 years of coal, why wouldn’t we use it?”
Various industry publications have cited that same estimate, saying, “The United States has more than a 250-year-supply of coal if it continues using coal at the same rate at which it uses coal today.”
But in a major report five years ago, the National Academy of Sciences concluded that the best estimate it could confirm was that U.S. coal reserves would last less than half that long.
“The United States is endowed with a vast amount of coal,” said the report, written by a panel of geologists, engineers and industry officials for the National Academy’s National Research Council.
“Despite significant uncertainties in generating reliable estimates of the nation’s coal resources and reserves, there are sufficient economically mineable reserves to meet anticipated needs through 2030,” said the report, written at the request of the late Sen. Robert C. Byrd, D-W.Va. “Further into the future, there is probably sufficient coal to meet the nation’s needs for more than 100 years at current rates of consumption,” the report said. “However, it is not possible to confirm the often-quoted suggestion that there is a sufficient supply of coal for the next 250 years.”
… Justice’s mining companies still fail to pay millions of dollars in mine safety penalties two years after an earlier investigation documented the same behavior. Our analysis of federal data shows that Justice is now the nation’s top mine safety delinquent.
His mining companies owe $15 million in six states, including property and minerals taxes, state coal severance and withholding taxes, and federal income, excise and unemployment taxes, as well as mine safety penalties, according to county, state and federal records.
The story continues:
In the past 16 months, while fines and taxes went unpaid, Justice personally contributed nearly $2.9 million in interest-free loans and in-kind contributions to his gubernatorial campaign, according to state campaign finance reports.
Grant Herring, a spokesman for the Justice gubernatorial campaign, said Justice “won’t be doing an interview,” despite multiple requests after NPR provided details of our investigation.
Importantly, the investigation also reports:
Delinquent Justice mines also continue to have worse-than-average safety records, according to NPR’s analysis of MSHA injury and violations data. Our analysis shows that injury rates (for injuries forcing time away from work) are twice the national average and violations rates more than four times the national rate during the years the Justice mines failed to pay penalties.
The Justice fines concern Celeste Monforton, a former MSHA official, mine disaster investigator and lecturer on workplace safety at George Washington University and Texas State University.
“I don’t think we should forget that the reason that he has those penalties is because there were violations and hazards in his coal mining operations,” says Monforton.
“The story is a little complex, and telling it from prison without a computer and without much documentation has not been easy,” Mr. Blankenship wrote. “But it is a story that Americans need to know.”
And indeed, there is a press release, in the form of this blog post — dateline “Taft, California,” where Blankenship is serving his prison sentence, as well as a .pdf file of Blankenship’s booklet now available through his website. I’ve downloaded a copy of the booklet and posted it here for safekeeping. Blankenship says he’s going to send the booklet to 250,000 people — he doesn’t say who — and explains his reasons for doing so:
This booklet is the right thing to do. It is the right thing to do because all Americans deserve a fair trial, and not one like I had. It is right to do this booklet because coal miner safety is more import-ant than political correctness. Lies about accidents and improper prosecutions are serious matters, as they prevent worker safety improvements and deprive people of their basic human rights.
Arch Coal Inc. today announced that it has successfully completed its financial restructuring and emerged from court protection, with new equity that will trade on the New York Stock Exchange under the ticker symbol ARCH.
“Today marks the beginning of a new era for Arch Coal,” said John W. Eaves, Arch’s chief executive officer. “We are extremely pleased with what we have accomplished during our highly expeditious restructuring process, and are eager to move forward with our compelling plan for value creation. I am confident we have all the pieces in place for long-term success – an extraordinary workforce, cost-competitive assets, a high-quality reserve base, a clean balance sheet and an excellent management team.”
Arch emerges as the leading producer of metallurgical coal and the second largest producer of thermal coal in the United States, with a streamlined portfolio of large, modern, low-cost mines. Arch’s operations have a proven track record of generating cash through all phases of the market cycle, with significant upside in rising price environments.
Arch is emerging with more than $300 million of cash on its balance sheet and a debt level of just $363 million, consisting of a new term loan and capital leases. The company’s total debt is just 7% of what it was prior to restructuring. Cash requirements are expected to be modest, with projected capital spending of $55 million in 2017 and projected debt service of approximately $33 million. In addition, the company has third-party surety bonds in place covering 100% of its reclamation bonding requirements.
It is a pretty significant story, and it seems hard to imagine it’s not going to quickly become part of the back-and-forth of this year’s gubernatorial campaign. Republican Bill Cole’s people will point to it with statements like this:
Mountain Party candidate Charlotte Pritt’s followers will say the whole thing just shows how Justice is just another coal operator and there’s no difference between Cole and Justice (for those who really are trying to understand if there are differences, former Gazette-Mail political reporter David Gutman gave that story a pretty good shot here).
Just to clear up the facts: The feds didn’t fine Justice $5 million. The fine in this case was $900,000. His companies are required to put up a $4.5 million letter of credit to ensure funding of new pollution control efforts. EPA says in all those efforts will cost $5 million, and Justice has already spent $500,00. So that’s where the $6 million figure in our story comes from. You can read the consent decree here and the EPA complaint here.
It’s fascinating to watch people who are more interested in partisan politics than in environmental protection (or workplace safety compliance) chatter about this particular story on Jim Justice. Where are their cries that the jackbooted thugs from EPA should let little poor ol’ Jim alone? I’m confused — do we want a strong federal enforcement agency to keep coal industry politics from controlling things, or should the feds leave us alone to run things as we see fit?
Readers who follow these things more closely than the career campaign consultants do will know that these kind of settlements between EPA and major coal producers have not been unusual things. EPA has reached deals in recent years with CONSOL Energy (here and here), Arch Coal (here and here) Alpha Natural Resources, and Patriot Coal, among others. And yes, most of the time, the state Department of Environmental Protection takes part with EPA as a co-plaintiff, a move that allows it some say in the litigation and some share of the fine. In this instance, WVDEP could have pocketed maybe $90,000 from the settlement, if the one-half of the fine going to states had been split five ways instead of four.
Tomorrow is a big day for coal and energy issues, what with the U.S. Circuit Court of Appeals for the District of Columbia set to hear oral argument in the case trying to stop the Obama administration’s Clean Power Plan.
Lots of eyes in West Virginia will be watching, and we’ve covered the implications of this issue before (see here, here and here).
There’s a bunch of stories out there nationally that provide various sorts of previews of tomorrow argument.
The New York Times, for example, takes this angle:
The pitched battle over President Obama’s signatureclimate change policy, which is moving to the courts this week, carries considerable political, economic and historical stakes. Yet its legal fate, widely expected to be ultimately decided by the Supreme Court, could rest on a clerical error in an obscure provision of a 26-year-old law.
That error, which left conflicting amendments on power plant regulation in the Clean Air Act, will be a major focus of oral arguments by opponents of Mr. Obama’s initiative when the case is heard on Tuesday in the United States Court of Appeals for the District of Columbia Circuit.
The initiative, known as the Clean Power Plan, which Mr. Obama sees as at the heart of his climate change legacy, gave the United States critical leverage to broker the landmark 2015 Paris climate change accord. If the plan is struck down, the United States, the world’s largest carbon polluter over the centuries, will lose its main tool to cut greenhouse gas emissions. If it is upheld, it will transform the nation’s electricity system, closing hundreds of coal-fired power plants and setting in motion a wholesale shift to wind, solar and nuclear power, as well as to improved electric transmission systems.
President Obama’s signature effort to combat global warming will be in the hands of federal judges this week, as an appeals court in Washington weighs the legality of the administration’s plan to force sharp cuts in power plants’ carbon emissions and push the nation toward cleaner energy sources.
Even after a marathon hearing Tuesday, the legal questions about the Clean Power Plan are almost certain to remain unresolved when Obama leaves office. But the outcome of the case ultimately could shape the president’s environmental legacy and influence how millions of Americans get their electricity.
“It’s the big kahuna,” said David Doniger, a senior attorney for the Natural Resources Defense Council, which backs the proposal.
The sprawling, unpredictable legal battle — which has attracted attention from the Supreme Court — pits the nation’s leading environmental groups, climate scientists and even tech giants such as Apple against more than two dozen states, industry groups and conservative lawmakers.
We know that over the last number of years that the regulatory onslaught has play a part in the onslaught of the loss of coal jobs. There are other factors, I would concede, but the regulatory onslaught has been a factor.
It was nice to see AG Morrisey acknowledge the “other factors” that have led to coal’s decline, something we’ve certainly tried to convince public officials to face up to over these last few years (see here, here and here, for example). As with election stories these days, it’s often easy for public officials — and voters — to get away with spouting the coal industry line without ever being confronted by journalists with facts about coal’s decline and the reality of the challenges faced by coalfield communities — even if the AG and his allies manage to win the day in court.
Here’s an announcement just out from the U.S. Mine Safety and Health Administration:
Since October 2015, eight fatalities and more than 1,100 nonfatal accidents have occurred in the nation’s coal mines, resulting in restricted duty, missed days at work, and permanent disabilities for the miners who worked there. While injury rates have been fairly consistent during this time period, records indicate a trend in accidents resulting in more serious injuries. The circumstances in at least 30 of the accidents might have led to fatalities.
Beginning today, the Mine Safety and Health Administration is issuing a call to safety to coal miners working in underground and surface mines around the country. Inspectors will engage coal miners and mine operators in “walk and talks” through Sept. 30, reminding them to “stop and take a breath” before proceeding with the next task at hand.
The most common outcomes of the more than 1,100 mining accidents – 250 of which occurred at surface operations – were injuries to the back, shoulders, knees and fingers. In the near-fatal accidents, the majority were attributed to powered haulage, electrical and machinery classifications.
The majority of non-fatal accidents occurred in West Virginia, with 419; Kentucky, with 191, and Pennsylvania, 130.
MSHA chief Joe Main said:
These walk and talks are intended to increase miners’ awareness of recent accidents, encourage the application of safety training and raise hazard recognition.
Deep in the belly of an Appalachian mountain, a powerful machine bored into the earth, its whirring teeth clawing out a stream of glistening coal. Men followed inside the Maple Eagle No. 1 mine, their torches cutting through the dank air. One guided the machine with a PlayStation-like controller; others bolted supports in the freshly cut roof.
They were angry. The coal industry that made West Virginia prosperous has been devastated. Every day, it seemed, another mine laid off workers or closed entirely. Friends were forfeiting their cars, homes and futures.
For these men, this season’s presidential campaign boils down to a single choice. “I’m for Trump,” said Dwayne Riston, 27, his face smeared in dust. “Way I see it, if he wins, we might at least stand a chance of surviving.”
Few places in America offer such a simple electoral calculus as the rolling, tree-studded hills of West Virginia.
Yeah, OK. Few places are as often pigeonholed and depicted as devoid of any nuance — through a simple journalistic calculus without any effort at all at context — than the coalfields of West Virginia when the big-time, out-of-state political correspondents parachute in to enlighten the world. I have to check again to make sure Times reporter Declan Walsh didn’t throw the world “hardscrabble” in there somewhere.
Sure, the miners are angry. Yes, many of them see voting for Donald Trump as their only hope. But does anyone really believe that most of this story wasn’t already written in the correspondent’s head before he got off the plane or hopped in a rental car?
These stories are hard for the national media to resist, and a look at any of the projections for Trump’s sure victory in West Virginia explains part of the reason for that (see here or here). My point isn’t that Trump is not going to win here. That seems obvious.
Yet the people of Mingo County have forged their own brand of resilience, one born of the tight-knit rural values that draw embattled citizens together. For some, that means planning for a better future: Dr. Dino Beckett, a local physician, has spearheaded initiatives to grow healthy food locally and reduce diabetes. For others, it means lifting a defiant finger to the outside world.
With salaries starting at $70,000 a year, a job in the mines was long considered the local jackpot. Mingo County’s breathtaking valleys and hollers — narrow creeks bordered by high hills — are lined with spacious homes, swimming pools and gleaming vehicles. Now, there is a palpable fear that the good life is gone, perhaps for good.
The local jackpot? That makes it sound like working in a coal mine isn’t incredibly hard work, not to mention incredibly dangerous work. This would have been a nice place for the Times reporter to make some mention at all of the downsides of the coal industry — things like black lung disease, mine explosions, water pollution … I could go on. Why is it that the Times is unable to show its readers that when one travels West Virginia, one finds incredible beauty and then, just around the bend, a moonscape or an orange stream? Why must we be “the other” place, a one-dimensional hollow that these “journalists” can’t seem to understand and are certain their cosmopolitan readers won’t get either.
More importantly, this story — like last week’s Times piece — chooses to make no effort at all to explain the complex reasons behind the decline in our region’s coal market. All this latest story gave us was this:
Political fury in Mingo County focuses squarely on the Environmental Protection Agency and President Obama, who is seen as having started a “war on coal.”
Why is it considered good journalism to cite all this “political fury” without providing any context to explain what’s really going on? It’s not like the Times doesn’t know about the context — they’ve published stuff about this very recently (see here and here). It’s as if the Times believes politics and facts really should be separate things — and that political journalism shouldn’t involve ever providing context, especially if that context undermines the narrative or what voters are saying. There’s nothing wrong with giving the angry miners a voice. But that’s only part of the story.
Reporting on the fury, without reporting on the context — the constant drumbeat of campaign and issue ads that have for eight years now promoted the one-dimensional view of what’s hurting coal — simply helps to ensure that this same fury continues, and that no one understands what’s really going on.
Sometimes victories are so rare for the people of the coalfields that it’s tempting to jump on just about anything to try to celebrate some movement forward. At least it seemed that way this last week or so.
A two-year struggle by the Kanawha Forest Coalition to halt a strip mine operating adjacent to Kanawha State Forest has ended in a bittersweet victory for the citizens group, after the West Virginia Department of Environmental Protection ordered a permanent end to mining at the Kanawha Development No. 2 Mine.
Under the terms of a DEP consent order signed late last month after a year of negotiations between the coalition and the permit holder, Keystone Industries of Jacksonville, Florida, “no additional mineral removal activities may occur” on the 413-acre surface mine permit. “Activity is exclusively restricted to actions necessary to achieve phased release of the permit,” including rebuilding sediment ditches that are leaking or that contain acidic material, and mapping the locations of containment areas for selenium-bearing or acidic materials, according to the consent order.
Bittersweet for sure. On the one hand, this situation certainly showed how citizens can play a vital role in enforcement of the federal surface mining law. And how DEP– in this case especially its inspection and enforcement staff — can do right by the citizens, especially if the citizens focus on the science and the law and are honest advocates, playing it straight with the many allies they have inside the agency, and don’t let up.
But the question that can’t be avoided here — not if any lesson is to be learned — is why in the world did the DEP issue this permit in the first place? Citizens opposed the permit. They appealed it. They warned that something about like what ended up happening was likely to happen if DEP pushed forward.
The proposal was called “Adjust, Adapt and Advance,” and it included detailed plans for water, sewer and infrastructure improvements, land use planning that lowered risks to the environment, and housing, school and business developments on old surface mine sites that would be out of the flood plain.
So yeah, it’s “blood money.” But if Hoppy can use the rejection of a state grant for some more of that unseemly stuff to attack the “Obama green agenda,” then logic and reason and any sort of consistency go out the window.
What Hoppy didn’t make clear was that most of the money the state requested in that earlier application — $110 million of it — was to be used for the last part of that, the development of old surface mine sites.
Hoppy writes that the “irony is self-evident” in President Obama providing money to help struggling coal communities. Really, though, Hoppy is a bit irony impaired on all of this. What’s really ironic is the whole idea that now that the mountains have been blown up, the streams polluted, and the riches of the coal hauled away to some other place, we have to invest public resources to make those flattened mountains into someplace businesses might locate, schools might be built, and families might be able to live.
And finally, really, what’s ironic is that the mess West Virginia is in now is largely of our own making. It’s a creature of our relationship with coal, our reliance on one industry, and our refusal to heed decades of warnings that we needed to branch out and get ready for this day. And commentators like Hoppy want to make it so that the Obama administration is damned if they don’t help us out of this hole, but also damned if they do help us out of it.
Millions of dollars are being disbursed to groups in West Virginia and other coalfield communities throughout the country as part of President Barrack Obama’s POWER initiative.
State and federal officials gathered in Huntington Wednesday to announce more than $38.8 million in funding for groups in West Virginia, Kentucky, Ohio, Virginia, Pennsylvania and Alabama.
Groups in the Mountain State will receive around $16.4 million, or more than 40 percent of the federal money, which will help advance efforts in education, infrastructure improvements, business development, manufacturing expansions and workforce training.
Jason Walsh, a White House policy adviser, noted at today’s event that there’s been bipartisan support for this kind of federal assistance. This bipartisanship, once difficult to find on these issues, is especially key on some of the administration’s big-ticket items — like billions of dollars to rescue the United Mine Workers pension and health-care plans and to pump more money back into cleaning up abandoned coal mines, legacy liabilities that, if not fixed, could forever hold back coalfield communities here. Support from Reps Evan Jenkins and David McKinley, both R-W.Va., is a great example.
To their credit, Rep. Jenkins and Gov. Earl Ray Tomblin didn’t go overboard in trying to use any mention of Obama and coal to repeat tired, worn-out advertising slogans about EPA.
These grants are critical to helping revitalize communities hurt by the downturn in coal. The Coalfield Development Corporation has developed innovative programs to help workers learn new skills and start their own small businesses, and I know this grant will help them offer their important services to even more entrepreneurs and communities. The Hobet mine site has unlimited potential for economic growth, and this grant will allow the state to develop a strategic plan to make this potential a reality.
With the downturn in the coal industry, we in the state and federal governments owe it to those who have lost jobs through no fault of their own to do everything possible to create new economic growth. These POWER grants represent a positive step toward that goal. The projects being funded envision a West Virginia where promising new job opportunities are a reality. I am especially proud that the Hobet project is being supported as we continue planning for the best ways turn that site into an economic engine for Southern West Virginia.
But, unfortunately, then there’s the joint statement issued by Sens. Joe Manchin and Shelley Moore Capito. Neither of them could tone it down for a day — even a day when the administration was handling out millions of dollars to their constituents.
Here’s Sen. Capito:
Years of onerous regulations that have targeted our state, have put many West Virginians out of work and hurt local communities. For more than a year, I have worked to ensure that economic development officials, including Assistant Secretary of Commerce for Economic Development Jay Williams and the Economic Development Administration, clearly understand the needs of West Virginia.
And here’s Sen. Manchin:
West Virginia has been devastated by this Administration’s harmful regulations and we must continue to fight to keep our coal jobs and to make sure every out-of-work coal miner has access to meaningful job opportunities.
And West Virginians wonder why we have a hard time being taken seriously on the national stage.
There’s an interesting op-ed in The New York Times today by civil rights lawyer and author Chase Madar about the use of criminal prosecutions in major public safety disasters. It mentions the Upper Big Branch Mine explosion, and the successful prosecution of former Massey CEO Don Blankenship:
The latest criminal charges of public officials in the contamination of the Flint, Mich., water supply seem righteous. After so much government ineptitude with such hideous consequences — tens of thousands of Flint residents poisoned; elevated blood lead levels in nearly 5 percent of the city’s children, many with possibly irreversible brain damage — surely these criminal charges will bring, at long last, justice for Flint.
Not really. Though these sorts of charges fulfill an emotional need for retribution and are of great benefit to district attorneys on the make, they are seldom more than a mediagenic booby prize. Prosecutorial responses fill the void left when health and safety regulations succumb to corporate and political pressure.
Take the collapse at the Upper Big Branch mine in West Virginia that killed 29 miners in 2010. Flouting safety regulations was an integral part of the corporate culture of the mine’s owner, Massey Energy, and last year its chief executive, Donald L. Blankenship, was convicted of a misdemeanor carrying a one-year sentence. Although some portrayed this as a blow for social justice, it’s difficult to see how it had much impact on mine safety.
Far more significant was the West Virginia Legislature’s passage last year of the Creating Coal Jobs and Safety Act, the first statutory loosening of mine safety standards in state history. While on its deregulatory binge last year, the state almost entirely rolled back aboveground chemical-tank safety standards enacted in response to the Elk River contamination disaster of 2014 – which made the water of 300,000 people undrinkable.
The general point is that criminal prosecutions won’t stop mine disasters, or water pollution, or food contamination — and that the media give far too much attention to criminal trials in these incidents, at the expense of coverage of the many failings of our civil and administrative regulatory systems that are supposed to protect the public. Attorney Madar opines:
Our prosecutorial response tends to be reactive. Volkswagen will pay at least $15 billion for cheating on emissions tests on its diesel vehicles, and may face criminal charges. The tiny research center that caught the discrepancy is now facing cuts to its $1.5 million annual budget.
A well-enforced regulatory regime lacks the TV-movie narrative arc of a criminal trial. But none of these crimes could have been committed if the government had been doing its job properly.
OK. Now one glaring problem with this whole line of thinking is that, while telling readers that these prosecutions are little more than a “mediagenic booby prize” that we mere news reporters fall for every time, Attorney Madar seems to be getting his information about the glaring holes in regulatory systems that aren’t explained to the public from — that’s right, the mainstream media.
Secret Service agents stand post as Republican presidential candidate Donald Trump speaks during a coal mining roundtable at Fitzgerald Peterbilt, Wednesday, Aug. 10, 2016, in Glade Spring, Va. (AP Photo/Evan Vucci)
This week, I’m going to try to get back into the habit of doing a post every Friday that tries to provide a quick look at a few coal-related news stories from around the Internet that I found interesting.
Here in the heart of central Appalachian coal country, an economic experiment is underway inside an airy renovated Coca-Cola bottling plant. Most days, Michael Harrison, a former mine electrician and “buggy man” who once drove trucks 700 feet underground, can be found hunched over a silver laptop, designing websites for clients like the Pikeville tourism board.
Mr. Harrison, 36, is one of 10 former mine workers employed at BitSource, an internet start-up founded by two Pikeville businessmen determined to prove a point: that with training and encouragement, Kentucky miners can learn to code.
“We told them, ‘Quit thinking of yourselves as unemployed coal workers; you’re technology workers,’” said Rusty Justice, a founder of BitSource. He called his pep talks “reimagination training.”
The 1990 amendments to the US Clean Air Act (CAA) encouraged the growth of mountaintop removal (MTR) coal mining in Central Appalachia. This study tests the hypothesis that the amendments had unintended impacts on increasing mortality rates for populations living in these mining areas. We used a panel design to examine adjusted mortality rates for three groups (all-cause, respiratory cancer, and non-cancer respiratory disease) between 1968 and 2014 in 404 counties stratified by MTR and Appalachian/non-Appalachian status. The results showed significant interactions between MTR status and post-CAA period for all three mortality groups. These differences persisted after control for time, age, smoking rates, poverty, obesity, and physician supply. The MTR region in the post-CAA years experienced an excess of approximately 1200 adjusted deaths per year. Although the CAA has benefits, energy policies have in general focused on the combustion portion of the fossil fuel cycle. Other components of fossil fuel production (e.g. extraction, transport, and processing) should be considered in the comprehensive development of sustainable energy policy.
In case you missed it, we posted a story very late last night based on a quick glimpse through the federal government’s response brief, filed in Massey Energy CEO Don Blankenship’s appeal, which is pending at the 4th U.S. Circuit Court of Appeals:
Federal prosecutors on Monday urged an appeals court to uphold last year’s landmark conviction of former Massey Energy CEO Don Blankenship for a mine safety conspiracy.
“The only thing novel about the charge against defendant is that, in this case, it was pursued against the CEO of a major mining company, instead of against low-ranking miners,” Assistant U.S. Attorney Steve Ruby wrote in a brief filed with the 4th U.S. Circuit Court of Appeals.
Late Monday night, Ruby filed a 97-page legal brief with the 4th Circuit, spelling out the federal government’s response to Blankenship’s appeal of his conviction.
“Defendant may believe himself to be more important than those past defendants, and perhaps though that his position insulated him from legal scrutiny,” Ruby wrote. “But there is nothing new about the legal authorities that were brought to bear in his prosecution.”
You can read the brief for yourself here (and you can read Blankenship’s appeal brief here).
Here’s another interesting quote from Ruby’s brief:
Defendant suggests that because 29 coal miners were killed at UBB, he must have been convicted because of the emotion and public outcry that the UBB explosion aroused, not because of his own rampant law-breaking. Defendant raised this theory in a pretrial motion that the trial court rejected and whose denial, again, he does not appeal. That motion detailed his intricate fantasies that he was prosecuted because of an internet video he released touting his theory of the UBB explosion, or because of a vaguely described political conspiracy to frame him for the explosion. Id. The trial court found not a shred of evidence to support any of it. Defendant may be correct that not every mine where workers die is the scene of law-breaking, but the evidence showed that this one was, and that he was behind it—and a jury of his peers fairly convicted him of his crime.
Oral argument in the appeal is set for Oct. 26 in Richmond, Virginia.