But rival candidate Booth Goodwin, who has U.S. Atttorney prosecuted Blankenship — isn’t going to let Justice just walk away from this one.
This morning, the Goodwin campaign unveiled a new ad (it’s being distributed on social media, at least) featuring Dr. Judy Jones Peterson, whose brother, Dean Jones, died at Blankenship’s Upper Big Branch Mine. Here’s what Dr. Peterson says:
I don’t really understand why Mr. Justice would step out against the integrity of this incredible prosecution team. He of all people as a coal mining operator should understand the plight of coal miners, but I think unfortunately that the plight he understands best is the plight of Don Blankenship.
As some readers may recall, Dr. Peterson had previously asked that Jim Justice issue a public apology after Justice questioned the Blankenship prosecution.
Aside from the gubernatorial campaign, one potential impact of this strategy by the Goodwin team is to give more ammunition to Blankenship’s defense lawyers, who certainly want to make an issue in their appeal of the politics they say drove the entire prosecution in the first place. So far, this argument from Blankenship’s lawyers didn’t get any traction with U.S. District Judge Irene Berger or much sympathy from the jury — but who knows what might happen going forward.
On the other hand, it’s certainly different to hear a candidate for governor in West Virginia campaign on the fact that he prosecuted a coal company CEO for putting miner safety and health at risk.
I’ve asked the Justice campaign and the Blankenship defense team if they’d care to comment on this new ad, and will update readers if I hear back from them.
Here’s the announcement today from the U.S. Department of Labor:
The U.S. Department of Labor’s Office of Workers’ Compensation Programs today issued a final rule to strengthen safeguards for the health of coal workers. The rule makes significant revisions to the regulations implementing the Black Lung Benefits Act that will give miners greater access to their health information, bolster the accuracy of claims decisions, and require coal mine companies to pay all disability or survivor’s benefits due in a claim before modification can challenge the award.
In an otherwise typical press release responding to the downgrading of West Virginia government’s bond rating, Gov. Earl Ray Tomblin had a pretty interesting line. It went like this:
During my State of the State address, I acknowledged the unprecedented shift that has taken place in our state and our nation and its impact on our state’s coal industry. Across the country and around the world, the coal industry – an economic driver that has supported West Virginia for generations – is facing serious challenges. This is not a typical downturn. This one is different, and even the most optimistic among us realize it is unlikely that coal will ever reach the production levels of the past.
I am telling you and you just mark it down. Jim Justice is telling you today two things. We are going to end up in West Virginia mining more coal in West Virginia than has ever been mined before. Mark it down. And the other thing is we’ve got to be diversified off the chart, because even when we were mining coal at our highest levels we were still 50th at everything coming or going. What does that tell us? It tells us we’ve got to have everything else. We’ve got to have tourism and agriculture and education and on and on and on.
Justice has a good point there in that last part — West Virginia’s economy has always been challenging, even when the coal industry was going great guns. But let’s just look at that first part again:
We are going to end up in West Virginia mining more coal in West Virginia than has ever been mined before.
Maybe there’s some analysis I haven’t seen, or some report that’s not yet been widely circulated. Maybe Jim Justice knows something the rest of us don’t. He is a billionaire after all. And he loves West Virginia.
So I asked Justice campaign spokesman Grant Herring for more information. Starting last Wednesday, I wrote to Grant about Justice’s statements:
I’m hoping that you could point me to 3 examples of independent experts or published reports that support this statement as being factual.
If you don’t have three independent experts or published reports, I’d be interested in whatever data or evidence Mr. Justice and/or his campaign have that would tend in any way to support this statement? What exactly is the basis for such a statement?
Didn’t hear a word back. Wrote him twice more. Crickets.
As so much attention swirls around the potential environmental consequences of the rash of coal industry bankruptcies, two new lawsuits filed today by the West Virginia Highlands Conservancy and other groups provide some much needed context to that issue.
Today, a coalition of environmental and community groups filed two lawsuits in federal district courts in West Virginia to hold the state accountable for mining pollution generated from seven former mine sites now owned and managed by the WV Department of Environmental Protection (WVDEP).
When mine operators in West Virginia go out of business before they complete all of the reclamation required by law, the state becomes responsible for finishing the clean-up, including managing any water pollution coming from the site. However, coal mines continue to generate harmful water pollution long after the mines are shut down. Today’s lawsuits allege that West Virginia is violating the Clean Water Act by discharging a variety of mining pollutants at levels that exceed water quality standards and permit limits from sites in Barbour, Nicholas, and Preston counties.
The lawsuits — I’ve posted them here and here — target alleged violations at sites where the DEP holds water pollution permits as part of its troubled Special Reclamation program, where the agency treats pollution left by bankrupt mining operations, but the sites still involve some regulated discharge. In the end, what environmental groups really want is to force the state to provide more funding — hopefully from the coal industry — to ensure that discharges from these and other sites don’t violate permit limits.
Cindy Rank, mining chairwoman for the Highlands Conservancy, said:
By burying their heads in the sand these past two decades and ignoring how the looming crisis of bankrupt coal companies would further deplete the state’s inadequate Special Reclamation Fund, West Virginia lawmakers have virtually guaranteed that citizens and taxpayers will be the ones responsible for cleaning up these coal company messes.
Kelley Gillenwater, spokeswoman for the WVDEP, declined to comment on the lawsuits.
The recent boom and bust of unconventional oil and gas development, or “fracking,” has reopened serious questions about resource management in many U.S. states. While the oil and gas boom generated revenue, jobs, and economic development, the recent bust has adversely impacted state budgets due to declining industry investments in exploration and production and job cuts.
The boom-bust cycle of unconventional oil and gas development highlights the need for strategic management by state governments of fracking-related revenues, not only to minimize the less desirable aspects of the boom-bust cycle but also to enhance long-term prosperity. States can address these challenges by imposing a reasonable severance (extraction) tax on their oil and gas industry and channeling a portion of the revenue into permanent trust funds. In doing so, states can convert volatile near-term revenues from unconventional oil and gas development into a longer-term and continuous source of investment funds for building sustainable and dynamic economies.
Locally, the West Virginia Center for Budget and Policy is noting the significance of this issue to our state:
“This study not only adds additional credibility to our research on creating a permanent mineral trusts fund in the state, but it makes clear that we need to fully fund our state’s Future Fund in order to improve the state’s long-term fiscal health and diversify our economy,” said Ted Boettner, Executive Director with the West Virginia Center on Budget and Policy.
The West Virginia legislature passed a bill to create the West Virginia Future Fund in 2014. The bill was amended to remove reliable funding mechanisms, however, and to-date has failed to be funded. The West Virginia Center on Budget and Policy released a report in 2012 that provides recommendations on how the make the West Virginia Future Fund successful.
Taking a major step to strengthen liquidity and reduce debt amid an unprecedented industry downturn, Peabody Energy Corporation (NYSE: BTU) today voluntarily filed petitions under Chapter 11 for the majority of its U.S. entities in the United States Bankruptcy Court for the Eastern District of Missouri. Through this process, the company intends to reduce its overall debt level, lower fixed charges, improve operating cash flow and position the company for long-term success, while continuing to operate under the protection of the court process.
All of the company’s mines and offices are continuing to operate in the ordinary course of business and are expected to continue doing so for the duration of the process. No Australian entities are included in the filings, and Australian operations are continuing as usual.
I’ve posted a copy of their Chapter 11 Petition here.
As has been widely reported, this isn’t really any surprise. Readers in West Virginia might want to recall this, which we reported last month:
More than three-quarters of Peabody’s production comes from the Powder River Basin, in Wyoming, where the company’s North Antelope Rochelle Mine last year generated 109 million tons of coal, more than all of the mines in West Virginia combined.
Twenty years ago, Peabody, through its Eastern Associated Coal Corp. subsidiary, was among West Virginia’s largest coal producers. Today, the company lists no producing mines in West Virginia in its filings with MSHA. Peabody has no active mining permits on file with the West Virginia Department of Environmental Protection, with all the permits in its name having been reclaimed, said DEP spokeswoman Kelley Gillenwater.
In explaining its move to seek bankruptcy protection while reorganizing, Peabody said this:
The factors affecting the global coal industry in recent years have been unprecedented. Industry pressures in recent years include a dramatic drop in the price of metallurgical coal, weakness in the Chinese economy, overproduction of domestic shale gas and ongoing regulatory challenges.
What’s important today are the feelings of the families who lost loved ones. I hope all of the families have the opportunity to be heard on whether or not they feel justice was served.
But it sounds like Justice has decided to add to those comments, at least according to this story from WOAY:
I think we spent an ungodly amount of money within our state to probably keep Booth Goodwin in the limelight and end up with a misdemeanor charge. If that’s all we are going to end up with, why did we spend that much money to do that?
This comes a day after Justice’s gubernatorial campaign was touting a new campaign ad in which United Mine Workers of America President Cecil Roberts — in what seemed like quite an awkward phrase — called Justice “one of the good coal operators.”
It is hard to imagine what the families of those 29 miners have been through. Think about it. Your husband or son or brother or father is snatched away — blown away really — stolen from your family in a violent underground explosion.
But it’s not like they just didn’t come home from work one day. You got a terrifying phone call. The phone call mining families have come to fear, but somehow always know could come. And then you spent a couple days in the ritual of waiting and hoping and praying that maybe, just maybe he somehow survived.
But even when that reality hits you, it’s not like you got to just bury him and grieve and try to find a way to live. There were meetings, and hearings and lawsuits. And all of the people from the media — maybe they’re just trying to do their job, but after a while having a microphone in your face gets kind of old.
And then, the CEO of the company who ran the mine that blew up got indicted. Maybe there would be justice, you thought. But then there was the trial. And it seemed like it would never end. And it was confusing — What were all the lawyers talking about up at the judge’s bench? What do all of these objections mean? Are those jurors even paying any attention to any of this?
Finally, though, there was a verdict. But even then — even then — everybody keeps talking about how none of this was really about what happened to him. What happened to all of them. It was about something else, not about what happened to those 29 miners.
Today, lots of people will talk about how they remember, how they’re praying for the families. How they’ll never forget.
I’m sure that’s all true. People do remember, and they do pray. Certainly, those families will never forget. The pain that folks like Gary and Patty Quarles must feel. I can’t imagine. They lost their son at Upper Big Branch. That never goes away. They won’t forget what happened.
But what about the rest of us? How can it be that today, of all days, there aren’t hundreds of people over in front of the Robert C. Byrd United States Courthouse for a protest or a vigil or just a quiet remembrance? Where are all those friends who care so much about our state’s coal miners now? What about the people who had a chance to speak up before all those miners died, and didn’t? What about all of us, who have a chance now to speak up, to do whatever needs to be done to make sure it doesn’t happen again?
Because while today is a day like many others on the coalfield calendar, tomorrow is a quite different sort of day.
During a hearing scheduled to start at 10 a.m., U.S. District Judge Irene C. Berger will sentence that CEO who got indicted. Don Blankenship is really a legendary sort of figure in Appalachia and the coal industry. He was once one of the region’s most powerful men. He’s still one of its richest.
Tomorrow in court, Blankenship will stand convicted by a federal jury of conspiring to willfully violate mandatory mine safety and health standards. He faces up to a year in prison and a $250,000 fine.
It’s a remarkable thing. A historic development. The CEO of one of the region’s largest coal companies was convicted of a mine safety crime after the worst mining disaster in a generation.
It’s true that Blankenship, as the defense makes clear in its recent court filings, wasn’t charged with blowing up the mine. He wasn’t convicted of causing that explosion, of killing those 29 men.
But what Assistant U.S. Attorney Steve Ruby outlined in his sentencing memo to Judge Berger is also true:
We have known for a very long time what makes coal mines explode. We have known for a very long time how to prevent it. And, sadly, we have known for a very long time that some mine operators will ignore these hard-learned lessons until the law compels them to take notice. The mine safety laws, it is said with good reason, are written in coal miners’ blood.
Defendant knew full well the awful risks, dramatized time and again in ghastly fashion over the years, that he was taking by flouting the mine safety laws at Upper Big Branch. There was no mystery about what poor ventilation meant: buildups of methane that would ignite with the slightest spark. Yet UBB’s miners were left pleading for air. There was no question what accumulations of coal dust meant if not properly treated: a powder keg 1,000 feet below the surface, primed to blow at any time. Yet black dust pervaded the mine, a calamity in the making.
There was nothing the least bit hidden or mysterious about the dangers of how Defendant chose to run UBB. They manifested themselves openly, obviously, to anyone with the most basic knowledge of coal mining, and certainly to Defendant.
Ruby goes on to remind us about Blankenship, and provide more important context:
How does one take the measure of such a crime? Defendant was the chief executive of one of America’s largest coal companies—a multibillion-dollar behemoth with its shares traded on the New York Stock Exchange, a fleet of private aircraft, luxurious board meetings at posh resorts around the country, and vast resources to support its mining operations. He had every opportunity to run UBB safely and legally. Instead, he actively conspired to break the laws that protect coal miners’ lives. Although already fabulously wealthy by the time of the criminal conspiracy of which he stands convicted, Defendant’s greed was such that he would willfully imperil his workers’ survival to further fatten his bank account.
Deciding a just sentence will be up to Judge Berger. And of course, Blankenship’s appeal will be up to the 4th U.S. Circuit Court of Appeals.
Deciding the potential penalties for a criminal conspiracy that puts miners at risk, though … well, that’s up to Congress. And when was the last time you heard any of West Virginia’s elected officials — either on the state or federal level — talking about the need to change that law, to make mine safety crimes felonies, and provide more serious punishments?
I have seen it all before. First, the disaster. Then the weeping. Then the outrage. And we are all too familiar with what comes next. After a few weeks, when the cameras are gone, when the ink on the editorials has dried, everything returns to business as usual. The health and the safety of America’s coal miners, the men and women upon whom the nation depends so much, is once again forgotten until the next disaster.
Just this morning, both Sens. Joe Manchin and Shelley Moore Capito issued statements to mark the Upper Big Branch anniversary.
Sen. Manchin said:
Six years ago I grieved with the miners’ families, West Virginians and the entire nation during the hours and days after the unspeakable mining tragedy at Upper Big Branch. Today on this sad anniversary, our hearts weigh heavy as we remember the tragic Upper Big Branch Mine Disaster. Not a day goes by that I don’t think about the 29 brave West Virginia miners we lost that day, who went to work and never returned home to their loved ones. I stayed with the miners’ loved ones through moments of hope and despair in the days following the devastating tragedy and saw the unbreakable bonds of family.
No family or community should ever endure a preventable tragedy like the one at Upper Big Branch again and this day reminds us that we always must put safety first. The health and safety of our miners will always be my top priority and I have always been committed to ensuring our miners return home safely every night. Our hearts are still broken and Gayle and I join all West Virginians in honoring those miners’ memories as we grieve their loss and pray for continued strength for their families.”
Sen. Capito said:
It’s hard to believe that six years ago today 29 miners lost their lives in an explosion at the Upper Big Branch coal mine. For many West Virginians, especially those who lost loved ones and friends, the memories from that terrible day are still so fresh in our minds. My heart still aches for the families of the 29 miners whose lives were forever changed on April 5, 2010. As our state continues to heal from this tragedy, I will continue my efforts to protect our coal miners who selflessly put their lives at risk in order to provide for their families and power our state.
No real mention in there of anything either of them has done recently to try to get any sort of mine safety bill, especially one that would toughen the penalties for mine safety crimes, moving in Congress. Thinking about the families and praying for them is obviously worth doing. But trying to divorce the mine disaster completely from the Blankenship case — and especially divorcing the weak state of current criminal laws about mine safety violations — seems to be quite a disservice to the men who died and to their surviving families.
It’s like we feel compelled to remember the Upper Big Branch Mine Disaster, but it’s convenient to at the same time forget how it happened and what needs done to make sure it doesn’t happen again.
It’s hard to believe that it took Hoppy Kercheval at MetroNews until today to try to twist into some sort of politically motivated effort to destroy our way of life what was really little more than a bungled effort by Democratic presidential candidate Hillary Clinton’s at explaining her coalfield economic aid package.
But never fear, because Hoppy’s commentary doesn’t disappoint. He paints the real point of Secretary Clinton’s comments — that she wants to help coal communities that are suffering because of complex changes in our nation’s energy economy — as some sort of afterthought that she cooked up after Sen. Joe Manchin complained about the one sentence that industry has jumped on:
By Tuesday, Clinton was walking back her comment in a letter to Manchin. “Simply put, I was mistaken in my remarks,” she wrote. “I wanted to make the point that, as you know too well, while coal will be part of the energy mix for years to come, both in the U.S. and around the world, we have already seen a long-term decline in American coal jobs and a recent wave of bankruptcies as a result of a changing energy market—and we need to do more to support the workers and families facing these challenges.”
But Hoppy is hardly the worst among our state’s media when it comes to misinforming the public on this particular story. Here’s the Wheeling paper’s editorial:
Clinton, comfortably in the lead for the Democrat Party nomination for president, now seems positively boastful about her plans for the coal industry and for the coal-fired power plants on which tens of millions of Americans rely for reasonably priced electricity.
She wants to shut down as many mines as she can. She plans to use draconian taxes to make it impractical for utilities to use coal for power generation.
And then, remarkably:
During the same campaign stop, Clinton insisted that as president, she would help miners who lose their jobs because of her policies. She has not been specific about that, no doubt because if she has a plan, it is much like the socialist government strategies of the past: Offer laid-off workers a few years of unemployment benefits, then forget about them.
The Wheeling paper is just wrong. Like her plan or not, Secretary Clinton does have a plan and it’s actually reasonably specific (though the Gazette-Mail’s David Gutman did note in this story that how the total figure was reached was not entirely clear). Those folks at the Wheeling paper can read about the plan here.
Hoppy and the Wheeling paper are hardly alone. You can see how much attention this one sentence is getting with a quick Google News search. Within the space of two days, The Associated Press had put out two separate stories that described the comments from Secretary Clinton as her having “declared” that she was going to put coal miners and coal companies out of business.
Declared? Well, you can watch the video yourself and decide if you think that’s an accurate characterization. Someone at AP must not have — because after they put that out on the wire a second time, the write-thru of the story changed the wording and actually put the comments in a little bit more of the proper context.
But the damage was done. And I’m not talking here about damage to Secretary Clinton’s campaign. That’s her problem. The damage we should all be concerned about is the damage to our already severely weakened ability to actually discuss what’s happening in our coalfield communities, understand what’s driving changes in our energy economy, and try to find ways to come out the other side as a stronger, better state.
Senate Majority Leader Mitch McConnell, R-Ky., flanked by Sen. John Barrasso, R-Wyo., left, and Majority Whip John Cornyn, R-Texas, right, talks to reporters following a closed-door policy meeting at the Capitol in Washington, Tuesday, March 15, 2016.
As predicted, the media obsession with one sentence from one presidential candidate continues, but it’s interesting to dig deeper into some of the reactions to Democrat Hillary Clinton’s comments about her plans for helping the nation’s struggling coal communities (by the way, I’ve posted Secretary Clinton’s letter to Sen. Joe Manchin here).
… When President Obama was a candidate, he boasted that his energy tax policies would make electricity prices skyrocket for American families. When President Obama took office, his administration declared a war on coal families and on their jobs. For a time, his administration tried to deny it was declaring war on anyone, but now we hear boasting from the highest ranks of the Democratic Party that these policies are going to put coal miners out of business Miners in Kentucky and across the country know that coal keeps the lights on and puts food on the table. What they want is to provide for their families. But here is how more Democrats seem to view these hard-working Americans and their families: just statistics, just the cost of doing business, just obstacles to their ideology. This is callous, it is wrong, and it underlines the need to stand up for hard-working, middle-class coal families. That is what I have done here in the Senate. That is what I will continue to do. I hope our colleagues will join me.
I understand the Republican leader’s concern about coal not being the way it was. It is simply that the American people have made a decision that we are going to have to look for another way to produce energy. There is still a place for coal in our society, but everyone has to acknowledge that it is not as it was a few years ago. I wish the Republican leader cared more about moving to help the pensions of these coal miners. They are desperately looking for support. We support them on this side. All the coal miners support it. We can get no support from the Republicans. We tried during the work we did at the end of the year. We came close, but Republicans said no.
I want all those coal miners from Kentucky and around the country to understand that we are trying to help them with their pensions, but unless we get some help from the Republicans, there will be no support. That is too bad. We are trying. We are trying. We are trying.
For decades, coal has been the dominant energy source for generating electricity in the United States. EIA’s Short-Term Energy Outlook (STEO) is now forecasting that 2016 will be the first year that natural gas-fired generation exceeds coal generation in the United States on an annual basis. Natural gas generation first surpassed coal generation on a monthly basis in April 2015, and the generation shares for coal and natural gas were nearly identical in 2015, each providing about one-third of all electricity generation.
The recent decline in the generation share of coal, and the concurrent rise in the share of natural gas, was mainly a market-driven response to lower natural gas prices that have made natural gas generation more economically attractive.
Environmental regulations affecting power plants have played a secondary role in driving coal’s declining generation share over the past decade, although plant owners in some states have made investments to shift generation toward natural gas at least partly for environmental reasons. Looking forward, environmental regulations may play a larger role in conjunction with market forces. Owners of some coal plants will face decisions to either retire units or reduce their utilization rate to comply with requirements to reduce carbon dioxide emissions from existing fossil fuel-fired power plants under the Clean Power Plan, which is scheduled to take effect in 2022 but has recently been stayed by the Supreme Court pending the outcome of ongoing litigation.
And who would have thought:
Beyond the growing market share for natural gas-fired generation over the past decade, coal’s generation share has also been reduced by the growing market share of renewables other than hydroelectric power, especially wind and solar. Unlike the growth of natural gas-fired generation, which has largely been market-driven, increased use of nonhydro renewables has largely been driven by a combination of state and federal policies. The use of renewable energy sources such as wind and solar has also grown rapidly in recent years so that generation from these types of renewables is now surpassing generation from hydropower.
There’s another new filing in the Don Blankenship criminal case — this one is a request from the defense to delay the sentencing, which is currently scheduled for April 6 in U.S. District Court in Charleston.
Basically, the defense says that they need more time to prepare to defend Blankenship against any restitution being sought against him. They want to either delay the sentencing for 90 days or to hold a separate hearing later, after the sentencing, to deal with any restitution requests.
Also, interestingly, the new court filing notes this regarding restitution requests:
On March 14, 2016, the defense learned from the U.S. Probation Office that it had received dozens of additional restitution claims in response to a mailing to potential victims. As of the filing of this motion, the defense has not seen those claims, although it expects to get access to them soon. The defense will need time to review and defend against those claims.
But if you read it closely, you’ll also notice a pretty interesting little detail:
Defendant has refused to comply with his obligations under 18 U.S.C. § 3664, which requires him to submit to the probation officer a description of his financial resources, including a list of his assets.
Each defendant shall prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant, including a complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other information that the court requires relating to such other factors as the court deems appropriate.
In their new court filing, prosecutors say that Blankenship’s refusal to provide these financial details prevents the government “from making a complete argument for restitution” and also prevents the court “from conducting a meaningful and holistic review of restitution claims.” They go on:
Defendant should not be permitted to dictate the procedure of resolving restitution outside of § 3664 and Rule 32 of the Federal Rules of Criminal Procedure by demanding a response from the United States and adjudication from the Court on the restitution issues of his choosing, at his leisure.
Prosecutors say that a separate hearing, held within 90 days of Blankenship’s sentencing — currently scheduled for April 6 — is likely necessary to sort out the restitution issues.
Democratic presidential candidate Hillary Clinton and Democratic speaks at the Ohio Democratic Party Legacy Dinner at the Greater Columbus Convention Center in Columbus, Ohio, Sunday, March 13, 2016. (AP Photo/Carolyn Kaster)
Well, it’s pretty clear that the coal industry got a potentially valuable soundbite last evening from Democratic presidential candidate Hillary Clinton. Secretary Clinton was asked to “make the case to poor whites who vote Republican why they should vote for you and your economic policies” and in offering one example, Secretary Clinton explained:
I’m the only candidate which has a policy about how to bring economic opportunity using clean, renewable energy as the key, into coal country. Because we’re going to put a lot of coal miners and coal companies out of business. And we’re going to make it clear that we don’t want to forget those people.
Those people labored in those mines for generations, losing their health, often losing their lives to turn on our lights and power our factories. Now we’ve got to move away from coal and all of the other fossil fuels. But I don’t want to move away from the people who did the best they could to produce the energy that we relied on.
As my friend Jim Bruggers at the Courier-Journal in Louisville points out, part of Secretary Clinton’s comment — “…We’re going to put a lot of coal miners and coal companies out of business” — sounds a lot like then-candidate Barack Obama’s remark in 2008 about how he would “bankrupt the coal industry“. Of course, the industry and its Republican friends have continued for years to take now-President Obama’s comments out of context. As I wrote during the 2008 campaign:
During a Jan. 17 interview with the Chronicle’s editorial board, an editorial writer noted that Obama co-sponsored a bill to encourage turning coal into liquid fuel for vehicles, an approach energy experts warn would likely create more greenhouse emissions than traditional gasoline. The editorial writer asked Obama how he squared his support for coal with the need to do something about climate change.
Obama responded that the country needs to “figure out how we can use coal without emitting greenhouse gases and carbon,” and that he believes a “cap-and-trade” emissions program is the best way to do that.
Such a program would put an overall ceiling on greenhouse gas emissions. Companies would need “allowances” from regulators for every ton of carbon dioxide their facilities pump into the atmosphere. Companies could reduce their emissions to meet the caps. Or they could buy or trade for “allowances” to keep using older facilities.
“That would create a market in which whatever technologies are out there being presented, whatever power plants are being built, they would have to meet the rigors of that market, and the ratcheted down caps that are imposed every year,” Obama told Chronicle editors. “So if somebody wants to build a coal power plant, they can, it’s just that it would bankrupt them because they’re going to be charged a huge sum for all that greenhouse gas that’s being emitted.”
As this year’s session of the West Virginia Legislature grinds on, it continues to become clear who is really running our state — and honestly, it’s not just about political parties (though surely, the parties increasingly have a chance to show us what they really stand for in these final weeks).
Two things that are moving forward up at the statehouse as I write give us the true picture of our state’s politics.
Political platitudes and lip service regarding the importance of coal jobs in the State and support for them will not save these family livelihoods this time. Only immediate action to reduce the State’s tax on coal extraction will help protect them … the West Virginia coal severance tax must be reduced from five percent (5%) of the gross sales price of its coal to no more than two percent (2%) very quickly.
This morning, Murray Energy spokesman Gary Broadbent had this statement about the current bill:
The legislation introduced yesterday is very much needed. Indeed, all of the proceeds from the coal severance tax reduction will go directly to our electric utility customers, through the language of our coal sales contracts, and none of it to any coal company. This will allow the jobs of West Virginia coal miners to be more competitive against coal from other states and against the increased use of natural gas to generate electricity.
There’s little evidence to support a severance tax cut for coal as a tool to increase production and employment. Overall, the state has little ability to influence the forces affecting the coal industry, be they competition from natural gas, environmental regulations, productivity, or transportation issues. The numbers in the Coal Association’s report are entirely unrealistic, which is probably why, despite their report, they don’t deny that a severance tax cut probably won’t help.
The talk of the town here in Charleston remains out ongoing legislative session, and there’s rightfully a lot of talk about some of the initiatives — right to work, hating gay people, etc. — that the new Republican majority seems to think are more important than the current budget crisis and the real long-term challenges facing our state.
But I’ve written before about how West Virginia’s public policies aren’t really governed by Democrats or Republicans. That’s not who has been running our state of all these years.
If you don’t believe me, I would encourage you to consider a few happenings up at the statehouse these last few days.
Second — and even more interestingly — look at the vote on SB565, the legislation to weaken the state Department of Environmental Protection permitting of natural gas drilling. DEP Secretary Randy Huffman — hardly an enemy of the natural gas industry — doesn’t think this bill is a good idea. But only one Democrat — Sen. Jeff Kessler — voted against it.
Some Democratic leaders would like to make it sound like they are with the surface landowners, citing concerns about the “forced pooling” legislation. So why did SB508 get its share of “no” votes, but SB565 face opposition only from Sen. Kessler?
Well, that’s because the trial lawyers are against SB508 and have generated attention and opposition. But SB565 is arguably more important to surface landowners — it’s aimed at putting permits in place that would prevent damage and nuisance for residents before they occur, not just protecting the right to sue after it happens.
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.
The hillside slope of West Virginia’s Headwaters Twentymile Creek watershed pre- and post-mining, calculated from elevation maps. Photo provided by Duke University.
There’s an important new study out from the folks at Duke University that provides some fascinating new calculations of the impacts of mountaintop removal on West Virginia’s coalfield environment.
Here’s the summary abstract:
Land use impacts are commonly quantified and compared using 2D maps, limiting the scale of their reported impacts to surface area estimates. Yet, nearly all land use involves disturbances below the land surface. Incorporating this third dimension into our estimates of land use impact is especially important when examining the impacts of mining. Mountaintop mining is the most common form of coal mining in the Central Appalachian ecoregion. Previous estimates suggest that active, reclaimed, or abandoned mountaintop mines cover ∼7% of Central Appalachia. While this is double the areal extent of development in the ecoregion (estimated to occupy <3% of the land area), the impacts are far more extensive than areal estimates alone can convey as the impacts of mines extend 10s to 100s of meters below the current land surface. Here, we provide the first estimates for the total volumetric and topographic disturbance associated with mining in an 11 500 km2 region of southern West Virginia. We find that the cutting of ridges and filling of valleys has lowered the median slope of mined landscapes in the region by nearly 10 degrees while increasing their average elevation by 3 m as a result of expansive valley filling. We estimate that in southern West Virginia, more than 6.4km3 of bedrock has been broken apart and deposited into 1544 headwater valley fills. We used NPDES monitoring datatsets available for 91 of these valley fills to explore whether fill characteristics could explain variation in the pH or selenium concentrations reported for streams draining these fills. We found that the volume of overburden in individual valley fills correlates with stream pH and selenium concentration, and suggest that a three-dimensional assessment of mountaintop mining impacts is necessary to predict both the severity and the longevity of the resulting environmental impacts.
There hasn’t been a large-scale assessment of just the simple full topographic impact of mountaintop mining, which occupies more than 10 percent of the land in the region we studied. [We found] the impact is deep and extensive. It is locally large and more wide-ranging than other forms of mining.
Another of the authors, biology professor Emily Bernhardt, explained:
We tend to measure the impact of human activity based on the area it affects on a map, but mountaintop mining is penetrating much more deeply into the earth than other land use in the region like forestry, agriculture or urbanization. The depth of these impacts is changing the way the geology, water, and vegetation interact in fundamental ways that are likely to persist far longer than other forms of land use.
The Beckley paper decided to take it on, with a very strong editorial that explained how we ignore science at our own risk:
It is clear Delegate Phillips is ignoring facts. Even the kids know that coal, which leaves a heavy carbon footprint in its wake, is a major contributor to global warming. Coal is a fossil fuel just like natural gas. When it is burned, it releases carbon dioxide into the environment. There, it helps trap heat and moisture in our little dome of life. It’s called the greenhouse effect — a pretty simple concept to grasp for anyone paying attention. And so, it gets hotter here on Earth and we get more extreme weather events. Even the oceans are warming up. It is undeniable. It is science. It has been researched. It is a fact. It is the truth.
But forget all of that. Forget the mountains of research. Forget all of the climate scientists around the world who have poured their intellectual curiosity into their work. According to Phillips, one winter weekend storm was all the evidence we needed.
The U.S. Mine Safety and Health Administration said of the recent incident:
A 31-year-old miner was fatality injured on January 16 when a fall of material pinned the victim to the mine floor. First responders freed the victim who was then transported to the surface area of the mine and traveled by ambulance to Ruby Memorial Hospital.
This is the 2nd U.S. coal-mining death in 2016, according to MSHA’s count.
A 36-year-old miner was fatality injured on Jan.19, 2016, when he became pinned between a continuous mining machine and the coal rib. The continuous miner operator was transported from the mine to the Baptist Hospital in Madisonville Kentucky where he was pronounced dead.