Don Blankenship Still Needs to Be Prosecuted

by Rena Steinzor

December 06, 2011

Booth Goodwin, the U.S. Attorney for the southern district of West Virginia, and Attorney General Eric Holder announced today a landmark settlement with Alpha Natural Resources, the coal company that bought out its rival Massey Energy after a catastrophic explosion deep within the Big Branch mine killed 29 miners.  Alpha recently announced that its third quarter 2011 profits had more than doubled in the wake of its purchase of  Massey, up to $66 million in the quarter.  The settlement requires the company to fork over $209 million to pay fines, reimburse families of miners killed and injured, and to fix the chronic safety problems that produced this tragedy.  The announcement had no news on  efforts to hold individuals accountable—most notably, Don Blankenship, the rogue CEO who constantly harassed his employees to “dig coal” faster, and faster, and faster, at the expense of routine safety precautions. 

As I explained here in May 2010, Blankenship monitored production as often as every two hours, deliberately creating an atmosphere in which workers feared for their jobs if they protested routine and egregious safety violations.  The proximate cause of the explosion was methane build-up in an old coal shaft that was never properly sealed—instead, miners stuffed it with garbage and rags.  “Every single day, the levels were double or triple what they were supposed to be,” a foreman who remained unnamed because he was afraid of losing his job told the New York Times.   Blankenship ultimately retired from Massey Energy, and is now enjoying a well-heeled retirement.

Attorney General Holder pledged today that “we continue to investigate individuals associated with this tragedy.” DOL Secretary Hilda Solis said “Anyone determined to have violated a criminal statute in connection with Upper Big Branch should be brought to justice." Ken Ward of the Charleston Gazette’s immensely useful Coal Tattoo blog thinks it’s indeed possible that Goodwin is not finished with this case, and I surely hope that insight is correct.  The U.S. attorney certainly knows how to put people in jail: he brags on his website about a sentence of 57 months in prison his office achieved for an oxycodone dealer who sold between $36,000 and $50,000 worth of the drug out of his home.  Surely the deaths of 29 people as a result of willful negligence in avid pursuit of corporate profits should reap a harsher penalty – or some penalty that goes beyond corporate fines.

Enforcement of health, safety, and environmental laws must have two goals: correction and deterrence.  Too often these days, prosecutors focus only on the first and neglect the second.  So, for example, two-thirds of the $209 million settlement will correct problems that Alpha Resources had ample time to assess before purchasing Massey, an assessment that undoubtedly factored into the purchase price it ultimately paid Massey shareholders.  Or, in other words, if all that comes out of this prosecution is a return of the company to compliance with the law, the incentive to do things right from the start is dramatically reduced, especially when the company essentially launders its reputation through an acquisition.  Surely Goodwin would never countenance a deal with a drug dealer that required the perpetrator to do nothing more than retrieve the oxycodone he’d sold and return some of the profits from the original sale.

To achieve real deterrence in the coal industry, some tangible, human figure needs to be prosecuted, and if found guilty, sent off to the clink for a significant amount of time. The company can’t do much more than pay monetary fines and compensate workers.  But the leaders of the company, they ones who ignored the laws and endangered their workers’ lives, can and should be held accountable.

It’s hard to imagine that the evidence against Blankenship won’t meet a criminal standard given the ruinous history of Massey Energy, which was among the worst in the industry, the available testimony from miners about their working conditions, and the paper trail Massey left behind as he repeatedly, day in and day out, exhorted those men to rush the dangerous business of digging coal.    Unlike the drug dealer, Blankenship will have the best lawyers money can buy, and the case will certainly be hard to win, straining the government’s dwindling resources.  But if the needles deaths are to stop, history shows that this route is the only way.

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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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