A HEAVYWEIGHT FIGHT BETWEEN 2 IRISHMEN
On December 17, 2014, The New York Times published a guest editorial, Coal: An Outlaw Enterprise, penned by Robert F. Kennedy Jr. Hal Quinn, president and CEO for the National Mining Association, responded, but the Times refused to publish his letter. Both the editorial and Quinn’s response are offered here:
COAL, AN OUTLAW ENTERPRISE
Last month, the coal industry in Appalachia suffered two legal blows.
On November 13, federal prosecutors in West Virginia announced that Donald L. Blankenship, the notorious former chief executive of the Massey Energy Co., once Appalachia’s biggest coal producer, was charged with widespread safety violations and deceiving federal inspectors. In 2011, the Mine Safety and Health Administration found that safety violations led to the 2010 explosion that killed 29 miners at the Upper Big Branch mine. Holding the head of a mining company responsible for such violations is an unprecedented move in the coal industry.
Then, on November 24, a Kentucky judge issued a scathing judgment against a Frasure Creek Mining settlement involving more than 1,000 Clean Water Act violations and years of false data on pollution-disclosure reports.
Coal is an outlaw enterprise. In nearly every stage of its production, many companies that profit from it routinely defy safety and environmental laws and standards designed to protect America’s public health, property and prosperity. In fact, Blankenship once conceded to me in a debate that mountaintop removal mining could probably not be conducted without committing violations. With a business model like that, one that essentially relies on defiance of the law, it is no wonder that some in the industry use their inordinate political and economic power to influence government officials and capture the regulating agencies.
Many news stories of Blankenship’s indictment alluded to the 2009 United States Supreme Court decision ordering a lower court in West Virginia to reconsider a $50 million judgment decided in favor of Massey, after Blankenship was discovered to have vacationed on the French Riviera with a justice of the West Virginia Supreme Court and to have donated $3 million to the campaign of another.
These cases are only the most high-profile examples of a subversion of democracy in Appalachia, where the outsize influence and campaign donations of King Coal sway politicians and weaken agencies. In Kentucky and throughout the region, toxins, many of them potentially lethal, have leached from coal mine debris and illegally contaminated countless miles of rivers and streams. The Clean Water Act requires that coal companies report the toxic constituents of these discharges to state officials and the Environmental Protection Agency (EPA). Accurate self-reporting is the linchpin of the Clean Water Act.
Nevertheless, environmental groups, including Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, and Waterkeeper Alliance, of which I am president, found in 2010 that Frasure Creek and other Kentucky coal companies had for years routinely filed false self-monitoring reports.
The companies we monitored simply copied the numbers from old reports, changed the dates, and resubmitted the old data on new reports. This happened time after time, while enforcement agencies consistently failed to notice. When Waterkeeper Alliance and its allies took legal action and exposed the false reporting epidemic, the Kentucky Energy and Environment Cabinet, an agency charged with enforcing the Clean Water Act, moved to commandeer the cases, pre-empting the environmental groups. But instead of diligently prosecuting the cases, the cabinet secretly negotiated sweetheart settlements with some of the companies. The cabinet’s agreement with Frasure Creek would have settled the violations for about 1% or less of the maximum allowable penalties.
Apparently chastened by scrutiny following the scandal, the firms suddenly began to report thousands of illegal discharges on their mandatory monthly reports. This case is arguably the largest systematic violation of the Clean Water Act. It is hard to imagine a case more deserving of criminal prosecution.
Nevertheless, after expressing shock at the brazen conduct and promising to fully investigate the matter, the United States attorney for the Eastern District of Kentucky, along with the heads of the EPA’s Criminal Investigation Division, failed to hold the companies accountable. We also provided extensive documentation of the violations to the Environmental Crimes Section of the United States Department of Justice, to no avail.
Perhaps emboldened by the lack of responsibility it has had to accept for its actions, Frasure Creek, we have found, again appears to be submitting duplicate data on its reports that show zero violations. The judge’s decision last month to throw out the sweetheart deal between the Kentucky cabinet and Frasure Creek was a welcome development. “When one company so systemically subverts the requirements of law,” he wrote, “it creates a regulatory climate in which the cabinet sends the message that cheating pays.”
The Kentucky judgment and the indictment of Blankenship are two steps in the right direction, but there is a long way to go. If we are to save Appalachia, we first need to save our democracy by getting the dirty money out of politics. As long as campaigns are fueled by donations from King Coal, state agencies and politicians in Kentucky and West Virginia will continue to be servile cogs in a destructive machine. That mechanism is uprooting America’s purple mountain majesty, poisoning its rivers and people, and destroying the communities of Appalachia.
Robert F. Kennedy Jr. is the president of Waterkeeper Alliance.
TO THE EDITOR:
One can only conclude from Robert F. Kennedy Jr.’s op-ed that he skipped his law school evidence class. His bill of particulars for charging one of America’s foundational industries — in this case coal — as an “outlaw enterprise” is thin and easily dismissed. Kennedy’s long-running bias renders his opinion inadmissible. His selective anecdotes are no substitute for a full account showing an industry exceeding the requirements of dozens of safety and environmental laws every day.
As for his claim the industry exercises outsized political influence, even rudimentary research reveals the Sierra Club, League of Conservation Voters and Kennedy’s other political cousins outspending coal companies by several orders of magnitude — all in the service of separating coal miners from their jobs.
A remedial course for Kennedy would be spending one shift carrying a coal miner’s dinner bucket so he can witness how they safely and efficiently keep America’s lights on. Perhaps then he will grow more comfortable with enjoying the fruits of their labor.
President and CEO
National Mining Association
December 20, 2014