Word out of the U.S. Court of Appeals for the District of Columbia is that the Interior Department has dropped its challenge of a recent lower court ruling in favor of citizens and organizations trying to keep Blair Mountain listed on the National Register of Historic Places.
Department of Justice lawyers for Interior’s National Park Service and the Keeper of the National Register filed this motion to voluntarily dismiss their appeal.
UPDATED: Here’s a statement from the National Park Service:
The National Park Service decided to accept the district court’s April 11, 2016, ruling and to implement the court’s remand order by revisiting its December 2009 decision to de-list the Blair Mountain Battlefield site from the National Register of Historic Places.
There was an interesting ruling earlier this month out of the 4th U.S. Circuit Court of Appeals in Richmond, in which citizen groups were again blocked in their efforts to litigate against a mountaintop removal mining permit using the growing body of science about mining’s public health effects.
The United States Court of Appeals for the Fourth Circuit has unanimously upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of White Forest Resources, Inc.
On August 10, 2012, the Corps issued a § 404 “dredge and fill permit” to Raven Crest for its Boone North No. 5 Surface Mine in Boone County, West Virginia. The Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Coal River Mountain Watch, and Sierra Club filed suit, claiming that the Corps had violated the Clean Water Act and NEPA by not considering a series of studies allegedly linking mining to adverse health impacts.
Last night, prosecutors filed their brief with the 4th U.S. Circuit Court of Appeals to oppose former Massey Energy CEO Don Blankenship’s request to remain free on bail while appealing his conviction for conspiring to violate federal mine safety and health standards.
Here’s their summary of their argument:
A criminal defendant’s conviction and sentencing bring with them a strong presumption that he will serve his sentence without delay. By his motion to stay his sentence pending appeal, Defendant-Appellant Blankenship (“Defendant”) seeks to evade that presumption. He cites four supposed reversible errors and says his sentence should be delayed because of them. The record reveals, however, that the district court was exceptionally careful and thorough in resolving Defendant’s legal contentions both before trial and during it. Defendant’s appellate claims simply are weak, and success for him on appeal is improbable.
As the public tries to understand how six former Freedom Industries officials received a total of 60 days in jail for contaminating the drinking water for 300,000 people (see here and here for some of my efforts at explaining), some folks have naturally turned their attention to the upcoming sentencing in another of former U.S. Attorney Booth Goodwin’s major white-collar criminal cases
It’s hard not to wonder now whether former Massey Energy CEO Don Blankenship — to borrow a phrase that U.S. District Judge Thomas E. Johnston has now made famous — is “hardly a criminal.”
Like former Freedom officials Gary Southern, Dennis Farrell, William Tis, Charles Herzing, Michael Burdette and Robert Reynolds, Blankenship stands guilty of a crime that the law books list as a “misdemeanor.” A minor offense. A lesser crime (for more on whether crimes that put coal miner safety and health at risk deserve to be felonies, read this).
So when U.S. District Judge Irene Berger sentences Blankenship on April 6 — the day after the sixth anniversary of the Upper Big Branch Mine Disaster — will she let him off with what Blankenship’s critics (and certainly the families of the 29 miners who died at UBB) would consider a slap on the wrist?
Well, it’s true that Judge Berger’s hands are in some ways tied. Congress has made willfully violating a federal mine safety and health standard punishable by only up to one year in prison. And because Blankenship’s jury found him guilty only of conspiracy to willfully violate such standards, his conspiracy crime — normally a felony — is punishable with a maximum of one year in prison. Moreover, the Blankenship jury found him not guilty of the other, felony charges brought against him.
And while it’s true that Judge Berger has already sent four former Massey officials to prison for not insignificant periods of time, those four individuals (former Massey miner Thomas Harrah, UBB security chief Hughie Elbert Stover, UBB mine superintendent Gary May and former Massey unit president David Hughart) all were convicted by a jury or pleaded guilty to felony offenses.
Still, there some significant differences between the Blankenship and the Freedom cases, and they are worth understanding if you’re wondering how the next big sentencing in federal court here in Charleston might turn out. I’ve looked into this a little bit in the last day or so, and I asked Assistant U.S. Attorney Steve Ruby and defense lawyer Bill Taylor for their thoughts. I haven’t heard back from Mr. Taylor, but I’ll share some of AUSA Ruby’s comments below.
First, Blankenship was found guilty by the jury of conspiracy to willfully violate mandatory mine safety and health violations. This is quite different from the negligence and strict liability crimes involved in the water pollution cases against Freedom officials. As Ruby explained:
As you point out, Blankenship was convicted of conspiring to commit willful mine safety violations. The jury also found that his participation in the conspiracy was willful — a second level of willful misconduct, beyond the willfulness of the violations themselves. Willfulness is the highest standard of criminal intent that exists in the law. The difference between the willfulness of Blankenship’s actions, on the one hand, and the negligence and strict liability involved [in] the Freedom convictions, on the other, does distinguish the cases and would weigh in favor of a more severe sentence here.
Second, the federal government has already indicated in a court filing that it believes the advisory guideline sentencing range for Blankenship is 10 to 16 months (generally speaking, when a guidelines calculation produces a sentence which, like this one, ranges above the statutory maximum, that maximum becomes the guidelines range). Prosecutors indicated they believe there are factors that could push the guidelines range even higher, but they won’t yet explain their thinking on that. Ruby said:
We believe that the guidelines range ultimately could be some months higher than the 10- to 16-month range we discussed in our filing, but any difference would likely be a matter only of months, not years. We will decline at this time to discuss the specific enhancement that might increase the range. Given that the minimum range should be 10 to 16 months and the statutory maximum, unfortunately, is a year, we would not expect any difference to have much practical impact.
Coal companies are asking an appeals court to block implementation of the second phase of the U.S. Mine Safety and Health Administration plan for addressing coal miners’ exposure to respirable dust, the cause of black lung disease.
Parties such as Murray Energy Corp., the National Mining Association, Walter Energy Inc. and the Alabama Coal Association are seeking to block implementation of the remainder of the rule ahead of its Feb. 1 rollout date. The rule was unveiled in April 2014 and aims to lower occurrence of black lung, a disease that has been a contributing factor in the death of 76,000 coal miners since 1968.
As that report, from SNL Financial’s Taylor Kuykendall, continues:
The industry argues the rule was unlawfully promulgated without the participation of the National Institute for Occupation Safety and Health. Already, the filing states, the rule has imposed substantial burdens and costs in the form of re-engineering mines, purchasing expensive equipment, training and hiring personnel and new government certifications.
“These costs have hit a coal industry substantially weakened financially even compared to the already-weakened state it was in when the dust rule was promulgated in 2014,” the filing states.
The coal industry is seeking to forestall new standards aimed at cutting miners’ exposure to breathable dust that can cause deadly black lung disease.
Feb. 1 is the start date for the second phase of the rule. It would require miners to wear continuous personal monitors to check their exposure to dust, and companies would have to do more frequent sampling to check for compliance with dust limits.
A federal court denied a request by more than a dozen states on Wednesday to temporarily block the Obama administration’s carbon regulations while they mount a full legal challenge to the rules.
The decision is an early victory for the Environmental Protection Agency, which completed the rules last month calling for carbon emissions from power plants to be cut 32% by 2030 from 2005 levels. The regulations are the cornerstone of President Barack Obama’s climate plan, and Wednesday’s ruling is an early legal salvo in what is expected to be a yearslong court battle over Mr. Obama’s climate agenda.
West Virginia Attorney General Patrick Morrisey has been leading the legal fight against the EPA rule. You can read the court’s brief decision here.
Judge Keith Phillips of the U.S. Bankruptcy Court in Richmond, Va., on Monday said he would sign off on the Sept. 9 auction. An affiliate of the Virginia Conservation Legacy Fund will lead off the bidding with its offer to take responsibility for $400 million in liabilities—workers’ compensation, black lung and environmental—tied to the assets.
The auction proposal had received objections from Patriot’s unsecured creditors’ committee and lender agent Barclays Bank PLC regarding the $5 million breakup fee Patriot sought to offer VCLF should it lose the bidding. However, those were resolved during the hearing with an agreement to require any winning bidder’s offer to provide enough cash to cover the fee.
The VCLF bid, which doesn’t include cash, does feature a pledge to issue new equity to Patriot’s creditors.
This month, VCLF attorney Andrew Troop told the bankruptcy court that through the deal, the nonprofit hopes to balance its quest to reclaim land through reforestation efforts while honoring the region’s tradition of coal production.
“Its desire here is to…reclaim land, operate responsibly, provide some return to creditors who otherwise it looks like would receive nothing or very little in connection with this plan, preserve jobs and enter into a new workable resolution with the United Mine Workers” of America union, he said at an Aug. 18 hearing.
Late last Friday, the defense lawyers representing former Massey Energy CEO Don Blankenship filed a motion asking to keep the jury in Blankenship’s criminal trial from hearing any evidence about the April 5, 2010, mine explosion that killed 29 miners at Massey’s Upper Big Branch Mine in Raleigh County.
We published a story that evening online and in the next day’s print edition about the filing, and I’ve posted the court document here.
One of the things I noticed initially about this filing was the little dig Blankenship’s lawyers got in about media coverage of the case:
Not only will every juror know about the UBB explosion, many jurors will bring to this trial the misimpression that this case is about Mr. Blankenship’s responsibility for the UBB explosion. That mistaken belief would have been formed and reinforced repeatedly by the mediaand interactions in the community. From day one, the local press has covered these proceedings, erroneously, as intended to determine Mr. Blankenship’s responsibility for the UBB tragedy.
While the allegations against Blankenship focus on events at Massey’s Upper Big Branch Mine, in Raleigh County, prosecutors stopped just short of alleging the former CEO was responsible for the deadly explosion.
The other thing I noticed was that, while Blankenship’s defense team doesn’t want the jury to hear evidence about what happened at Upper Big Branch, they go to great lengths to insist that, if the subject comes up, they can convince jurors that Blankenship’s theories that those 29 miners died in a “natural disaster”:
… Evidence from the government regarding causation and responsibility for the UBB explosion would be met by strong evidence from Mr. Blankenship rebutting the government’s theories, leading to confusion about the actual issues and to undue delay – a satellite mini-trial about the cause of the UBB explosion and who is responsible for it. If the cause of the explosion is at issue in the trial, the defense is ready to present substantial, compelling evidence that the incident was actually a natural disaster.
It does make you wonder why, if their case on the cause of the disaster is so good, Blankenship’s lawyers wouldn’t want to just go right down that road at trial.
There was a fascinating little line in the opening statement given today by House Education and the Workforce subcommittee Chairman Tim Walberg, R-Michigan, at a hearing where lawmakers received an update on the administration’s mine safety efforts:
Upper Big Branch is a terrible reminder that bad actors will look for ways to cut corners and jeopardize the well-being of their workers, despite a moral and legal obligation to make safety the number one priority. I am pleased that those who had a hand in the Upper Big Branch tragedy are being held responsible. It is taking some time, but justice is being served.
These comments come, of course, as U.S. Attorney Booth Goodwin here in West Virginia prepares for trial on the criminal charges he and Assistant U.S. Attorney Steve Ruby have pursued against former Massey Energy CEO Don Blankenship.
Well, I got my answer … MSHA says it is withholding those records, citing “an order issued by a United States District Judge prohibiting the release of any documents in the media or any other entity regarding the facts or substances of the criminal case involving Donald L. Blankenship.”
MSHA cites Federal FOIA Exemption 7(A), which it says “protects records of information compiled for law enforcement purposes when production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings.” The agency also cited Exemtion 7(B), which it said, “permits the withholding of records or information compiled for law enforcement purposes when disclosure would deprive a person of a right to a fair trial or an impartial adjudication.”
There’s an important story coming out of Kentucky this week that will be of interest to anyone who has followed the water sampling scandals here in West Virginia (see here and here) — or anybody who has just wondered why so much of our water pollution enforcement process is based on industry self-reported data. Here’s the press release from Appalachian Voices:
Over the course of 2013 and 2014, Frasure Creek Mining – one of the largest coal mining companies in Kentucky – sent the state false pollution reports containing almost 28,000 violations of federal law, and the Kentucky Energy and the Environment Cabinet failed to detect the falsifications, according to a letter of notification served to the company by four citizen groups. It was the second time the groups have taken legal action against Frasure Creek for similar violations.
In a 30-page notice of intent to sue mailed Friday, the groups document that Frasure Creek duplicated results from one water pollution monitoring report to the next, misleading government officials and the public about the amount of water pollution the company has been discharging from its eastern Kentucky coal mines. In some cases, Frasure Creek changed only the values that would have constituted violations of pollution limits in the company’s discharge permits. With a potential fine of $37,500 per violation, the maximum penalty could be more than $1 billion.
And, the C-J’s Jim Bruggers noted this response from Kentucky officials:
Contrary to inaccurate and inflammatory statements directed at the Cabinet … the agency has been actively monitoring compliance with Frasure Creek and other coal mining operations in Kentucky. Since 2011 the Division of Enforcement has reviewed approximately 179,000 (discharge monitoring reports) involving 78 coal companies and over 2,200 mining permits, assessed civil penalties in excess of $3,697,000, and has entered into 67 enforcement settlements with coal companies in Kentucky. The agency has and continues to proactively review and take appropriate enforcement actions to resolve violations identified during the inspection and review of coal mining operations.
In a state where coal-country creeks run red with iron, Frasure Creek Mining has been unusually clean of late: Amid tens of thousands of measurements that it submitted to Kentucky regulators in 2013 and early 2014, fewer than 400 exceeded the state’s limits for water pollution from coal-mine runoff … The disclosure could embarrass the state, not least because environmental activists caught Frasure and two other coal companies in the same scheme in 2010. Then, regulators promised to tighten their scrutiny of pollution reports and the laboratories that conduct pollution tests.
There’s an interesting order out from the 4th U.S. Circuit Court of Appeals concerning a significant mountaintop removal case. In it, a three-judge panel refuses a request from Alpha Natural Resources that the court consider an immediate appeal of U.S. District Judge Robert C. Chambers’ ruling in part of a case over conductivity pollution from Alpha operations.
Citing what he said was “extensive scientific evidence,” a federal judge has ruled for the first time that conductivity pollution from mountaintop removal mining operations is damaging streams in Southern West Virginia.
U.S. District Judge Robert C. Chambers concluded that mines operated by Alpha Natural Resources in Boone and Nicholas counties have “caused or materially contributed to a significant adverse impact” to nearby streams, giving citizen groups a major victory that also supports Obama administration efforts to reduce mountaintop removal impacts.
In a 67-page ruling issued Wednesday, Chambers found that mining discharges had not only altered the chemistry of the streams, but also “unquestionably biologically impaired” them, leaving both the diversity and abundance of aquatic life “profoundly reduced.”
“Losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in a coal mine,” the judge wrote.
“As key ingredients to West Virginia‘s once abundant clean water, the upper reaches of West Virginia‘s complex network of flowing streams provide critical attributes ― functions,‖in ecological science — that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation, and important economic uses,” Chambers wrote. “Protecting these uses is the overriding purpose of West Virginia’s water quality standards and the goal of the state’s permit requirements.”
As we noted in that story:
Chambers ruled after a two-day trial in December. He found that the coal operations had caused water quality violations, but has not yet decided what sort of penalty or other injunctive relief he will order.
Alpha lawyers tried to appeal just what Judge Chambers had ruled on so far, but the 4th Circuit refused to hear that appeal. A trial is scheduled to start on Dec. 2 on what sort of penalty or injunctive relief is appropriate.
Big news today out of the U.S. Court of Appeals for the District of Columbia: A three-judge panel has given the federal Environmental Protection Agency another victory in the agency’s efforts to combat water pollution from mountaintop removal coal mining.
EPA press secretary Liz Purchia issued this prepared statement about the ruling:
EPA is pleased that the Court of Appeals agreed with our position in this case. We are committed to consistently using our authority under the Clean Water Act to protect the health and environment of Appalachian communities. The Agency is working with the states, mining companies, other stakeholders and the public to enable environmentally responsible mining projects to move forward.
Citizen groups have also issued a statement, available here.
A leading U.S. coal company is suing a rival with which it shared confidential business plans during a deal that later fizzled, saying the competitor used the proprietary details to buy up land in southern Illinois to thwart the accuser’s expansion plans.
Murray Energy Corp., a privately held Ohio-based company with operations in Utah, alleges in a lawsuit Saline County, Illinois, that Williamson Energy LLC breached terms of a confidentiality agreement in 2008 when Murray was trying to sell it operations in the southern Illinois.
The story explains:
Under the agreement, the lawsuit claims, Williamson pledged not to disclose or use any of Murray’s confidential information to acquire mineral or property rights related to Murray’s operations for eight years.
Murray claims Williamson has done just the opposite since 2009, buying cherry-picked parcels and mineral rights at above-market prices — in some cases, four times the going rate — “directly in the path” of Murray’s mining operations. Murray alleges it planned to buy or lease those tracts, that the parcels are too small to offer mining potential to Williamson, and that Williamson bought the land “to hinder MEC’s operations to gain an unfair competitive advantage.”
There’s another big decision out this morning from the U.S. Supreme Court on climate change, and you can expect to see some West Virginia officials touting it as more proof for their argument that the federal Environmental Protection Agency is out of control … but before you buy that, it’s worth actually paying attention to what the decision says and what some of the media coverage of it is explaining.
The U.S. Supreme Court partially upheld one of President Barack Obama’s early efforts against climate change, saying the Environmental Protection Agency had authority to impose new permitting requirements on some power plants and factories.
The permitting rules apply when facilities are built or expanded. They are separate from the administration’s more comprehensive climate-change regulations, including the plan released June 2 to cut carbon emissions from existing plants by as much as 25 percent over 15 years.
The Supreme Court gave the EPA a preliminary victory in October, refusing to consider arguments that would have barred the agency from addressing climate change at all. That left states and business groups fighting the permit rules, which they said may ultimately affect millions of facilities, including bakeries and apartment complexes.
Today’s ruling, which splintered the court, may head off that possibility, limiting the rules to a few hundred facilities that already have to get permits for other pollutants. The justices said greenhouse-gas emissions by themselves can’t serve as the trigger for a permit requirement.
Justice Antonin Scalia, writing for the court, said “EPA is getting almost everything it wanted in this case.” Scalia said the agency wanted to regulate 86 percent of all greenhouse gases emitted from plants nationwide. The agency will be able to regulate 83 percent of the emissions under the ruling, Scalia said.
The Supreme Court on Monday handed President Obama’s Environmental Protection Agency a victory in its efforts to regulate greenhouse gas emissions from stationary sources like power plants … States and industry groups challenged the regulations on many grounds, with the U.S. Chamber of Commerce calling them “the most burdensome, costly, far-reaching program ever adopted by a United States regulatory agency.” The Supreme Court limited the issue it would consider to whether the agency “permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases.”
After a five-week trial in Grundy, Virginia., a Buchanan County jury awarded $5 million in damages to Harman Mining Corp. and Hugh M. Caperton in their legal dispute with A.T. Massey Coal that began more than 16 years ago when Massey bought Wellmore Coal Corp in 1997.
The seven-member jury announced its verdict about 5:30 p.m. on Friday afternoon, awarding $4 million to Harman Mining and two related companies — Harman Development Corp. and Sovereign Coal Sales. The jury also awarded $1 million to Caperton for personal financial damages.
Caperton argued he was forced to shut down his mining operations and file for bankruptcy because Massey illegally broke a contract he had to supply metallurgical coal, through Wellmore Coal, to the LTV Corp., a Pittsburgh steel company.
Within six months of Massey’s purchase of Wellmore and its parent company United Coal, Massey President and CEO Don Blankenship shifted the LTV contracts to his own non-union mines in Boone County.
In the trial that ended on Friday, Harman and Caperton asked the Buchanan County jury for $90 million in compensatory damages, which included wages and benefits for union miners who lost their jobs when Harman Mining’s operations shut down in 1998.
Jurors in a Virginia court this week heard some of the same testimony as jurors in Boone County, West Virginia, a dozen years ago, as former mine company owner Hugh Caperton continues his efforts to win damages and other compensation from Massey Energy for allegedly forcing his company out of business.
Caperton alleges Massey bought Wellmore Coal Corp. in 1997 with the specific intention of shutting down Harman Mining’s operations, owned by Caperton, just outside Grundy and selling its own metallurgical coal to steel companies.
Caperton originally filed his suit in Boone County because the company Massey used to take over Harman’s coal contracts with LTV Corp. was based there. Massey bought Wellmore, a subsidiary of United Coal, on July 31, 1997.
Caperton won a $50 million verdict against Massey from a Boone County jury in 2002.
But the West Virginia Supreme Court overturned that verdict three times, ultimately saying the case should be sent back to Virginia, where Caperton operated his coal mines.
Harman Mining had its underground mines along a scenic road between U.S. 460 and the Breaks Interstate Park, on the Virginia-Kentucky border.
Buchanan County Judge Henry Vanover is conducting the latest trial before an 11-member jury.
There’s a big U.S. Supreme Court ruling out today that is a big win for the Obama administration’s Environmental Protection Agency. Here’s the short of it from The New York Times:
The Supreme Court on Tuesday upheld the Environmental Protection Agency’s authority to regulate coal-plant pollution that wafts across state lines from 27 Midwestern and Appalachian states to eastern states.
The 6-to-2 ruling is a major environmental victory for the Obama administration, which has instituted several new E.P.A. regulations under the Clean Air Act in an effort to crack down on coal pollution. Republicans and the coal industry have criticized the effort as a “war on coal.”
The regulations covering cross-state air pollution, also known as “good neighbor” rules, have pitted Rust Belt and Appalachian states like Ohio and Kentucky, which produce heavy pollution, against East Coast states including New York and Connecticut.
The Times’ Coral Davenport notes:
Legal experts say the Supreme Court decision, written by Justice Ruth Bader Ginsburg, may signal that the Obama administration’s other efforts to use the Clean Air Act to push through major environmental curbs on coal pollution will prove successful.
In June, the E.P.A. is expected to unveil a sweeping new climate change proposal, using the authority of the Clean Air Act to rein in carbon pollution from coal plants.
You can read the full ruling yourself here. And let’s not forget that West Virginia Attorney General Patrick Morrisey was among those who filed an amicus brief against EPA’s rule — and even bragged that this was this was “the first time in at least two decades that a Mountain State attorney general has led the writing of a brief in the U.S. Supreme Court involving the EPA.”
The word is out this morning that the U.S. Supreme Court has declined to hear Arch Coal’s continued battle to overturn EPA’s veto of the largest mountaintop removal mining permit in West Virginia history. Here’s the list of cases released today by the court. Scroll down to page 3 of the .pdf file under the hearing CERTIORARI DENIED and you’ll see Mingo Logan Coal Co. v. EPA listed there.
In a statement today, Jim Hecker of Public Justice — one of the lawyers who worked in 1998 on the case that initially blocked the Spruce Mine — said this:
The coal industry has falsely painted the Spruce mine veto as an example of EPA overreach and a ‘war on coal,’ when in fact EPA’s authority to veto this permit is obvious from the face of the statute and EPA’s decision is based on clear scientific evidence of serious environmental harm from mining.