Janine Jackson interviewed attorney Bruce Stanley about the crimes of Don Blankenship for the April 8, 2016, CounterSpin show. This is a lightly edited transcript.
Bruce Stanley: “We watched Upper Big Branch because 29 died in one spectacularly stupid explosion. But there are another 20 miners or so underground, one or two at a time, dying because of the same management style.” (image: KDKA)
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Janine Jackson: Twenty-nine men died April 5, 2010, in an explosion at Upper Big Branch Mine in Montcoal, West Virginia. The mine was run by Massey Energy, and Massey Energy was run by Don Blankenship. A looming figure in the region whose tight control over his workplace was notorious, Blankenship racked up profits and political capital along with safety violations, while saying cartoon-villainous things like, “I don’t care what people think; at the end of the day, Don Blankenship is going to die with more money than he needs.”
After an investigation spurred by the Upper Big Branch explosion, Blankenship was indicted and convicted in December for conspiring to violate federal mine safety standards, and he was sentenced this week to the maximum penalty on that charge: one year in prison, along with a fine and a year of supervised release. That is better than nothing, but how do we get to better than that?
Attorney Bruce Stanley has represented people combating coal and chemical companies for decades. The story of his and colleague Dave Fawcett’s many-year legal battle with Blankenship and Massey Energy is the subject of the book The Price of Justice, by Laurence Leamer. He joins us now by phone from Pittsburgh. Welcome to CounterSpin, Bruce Stanley.
Bruce Stanley: Thank you, Janine. I very much appreciate being invited to your show.
Don Blankenship: “I don’t care what people think; at the end of the day, Don Blankenship is going to die with more money than he needs.” (cc photo: Brianhayden1980)
JJ: News accounts note that this conviction is the first time such a high-ranking executive has been convicted of a workplace safety violation. And I guess my question is, why is that? It can’t be the first time that one has been guilty of one.
BS: That’s certainly a fair statement. I think in this particular circumstance, there’s a long history of Blankenship actions in the coal fields of West Virginia that, with the culmination of the explosion of Upper Big Branch, ultimately law enforcement and prosecutors at the federal level had to say, enough is enough, and had to move.
It’s important for your listeners to remember that while 29 died on that April day six years ago, a total of more than 53 men died in coal mines operated under Blankenship’s leadership, from the time the company was a publicly traded company on the New York Stock Exchange, going back to 2000.
I had worked on the Aracoma Mine fire, one of the cases Mr. Leamer talks about in his book, and we were almost offended by the lack of action by the prosecutor’s office on the criminal front in that case, like the federal judge who accepted the plea bargain in that case, which resulted in a plea of 11 misdemeanor counts and one felony count against the operating subsidiary company only. He allowed that plea bargain to go forward, despite the fact that prosecutors had said, as a part of that agreement, that they would not look upstairs, they would not look to the executive offices of Massey. And so we urged that it be rejected, and unfortunately it was not.
And in our view of things, that was the equivalent of a get-out-of-jail-free card for Don Blankenship, an unintentional approval of the way he had conducted business in the past and, in my estimation, one of the very reasons we ended up with 29 dead miners six years ago.
JJ: I want to draw you out on that not looking upstairs. It’s a personal interest of mine for many years now. If people don’t know, if we’re talking just about the explosion at Upper Big Branch, three people did get sentenced to jail for that, for periods between 21 months and three-and-a-half years, for things like falsifying records, disabling a methane monitor, tipping off officials of safety inspections.
What‘s galling is that tipping off officials that a safety inspector is on site is not a rogue employee action, you know? It’s an order from above. And so that’s the question: Even if Blankenship were not the kind of guy that he is, who requires reports every 30 minutes, including nights and weekends, even if he was not that kind of micromanager, why is it so hard to say the person in charge is the person in charge?
BS: I think it really is cultural in many aspects. If you look at the socioeconomic structure of Appalachia, and the influence, the pervasive influence that the coal industry has had over Appalachian politics for over a century now, that reveals some of the answer. The local political structures that are in place are there, frankly, through the permission and consent of the coal companies.
A good example that I can think of that is when former United States Sen. Jay Rockefeller first decided to run for governor of West Virginia, I think it was in the 1976 campaign, he came out against strip mining, which was a more benign form of what we’ve all come to know as mountaintop-removal mining, now, where they blast the tops off mountains to remove a few inches of coal. In his first campaign, he was anti-strip mining, and coal made it plain to Jay Rockefeller very quickly that he would not be elected governor in the state as long as he held, quote, an anti-coal position. And sure enough, Jay Rockefeller lost that election, and sure enough, Jay Rockefeller changed his tune, when it came to regulation of the coal industry, in his subsequent terms as a public official for the state of West Virginia.
So that influence goes all the way down into the local communities, to the boards of education, to the local prosecutors’ offices, to the local judges, to all the local elected officials, to all of the law enforcement folks. And so one has to ask yourself, when you ask, well, why aren’t the feds doing more, the first question probably should have been, well, what were the local folks doing? And why is it that we had a federal prosecution based upon a misdemeanor conviction, when industrial manslaughter charges could probably have been put together, and led to a significant indictment of all of Massey management by a local prosecutor who would have been ambitious enough to take it on? And that they didn’t speaks loads.
JJ: Before the federal jury conviction of Blankenship in December, we were hearing about maybe 31 years he might serve, and that was because of these other counts, on which he was not ultimately convicted, about lying to regulators. He was only convicted on this misdemeanor count, which is why we’re looking at this one-year maximum sentence. But you’re getting at why that did not happen, and that has to do with politics. I mean, we think it’s a legal question about corporate crime and what legal tools we have. But, of course, who the judges are, who’s deciding the cases, all of that is very political.
So let me then move you on to—you’re saying the backbone needs to be at the local level, to bring these charges and to allow them to move up. Where do local media come in there? Because it seems to me that public outrage, public concern and public knowledge are dependent to some extent on reporters getting that story out and making that an urgent story. So what can you say about that?
BS: Yeah. I mean, it’s true enough. I was a local reporter on a small southern West Virginia newspaper out of college, and I appreciated the strain that one would feel when making decisions about whether or not to write stories about certain, quote, powerful local officials. I mean, that pressure on local media is palpable. Unless there is an independent media there, the notion of some young prosecutor, or any prosecutor, standing up and saying, hey, enough’s enough, and we need to take an independent stand here—it calls for a conviction that, frankly, most average citizens don’t possess.
And when you weigh that against the economics of a local economy, a single-engine economy, it gets very difficult. You know, a lot of these miners’ families who complain about the safety issues associated with operating in a Massey mine, many of those same families were the ones who were complaining about the alleged war on coal, where coal is saying, hey, we’re being regulated out of business by the Obama administration. So it becomes a very, very difficult dynamic.
I think it’s also important to remember, though, and I do want to revisit quickly the nature of the federal charge that he was charged against; that is not local. That is something that the national politicians could do something about. That’s something that the Congress of the United States has had on its desk for some time now, and has chosen not to act. And that’s a choice not to act, as a lack of leadership from Washington representatives from the coal fields. You know, Shelley Capito and Joe Manchin and Mitch McConnell all represent constituents who are laboring in unsafe mine conditions, where that one-year maximum penalty is all that’s out there. They can change that anytime that they want. The administration would back that change, and they know that, and they choose not to.
And so that one is very problematic, when weighed against what you know is going to be the inertia at the local setting because of the overall power of coal in these communities, what they could be doing with the stroke of a pen, essentially, at the national level to prevent that. Why should it be that it’s 30 years to lie to Wall Street, one year to conspire to violate the mine safety laws of the United States? And that’s a choice that Congress had made.
JJ Exactly. And just analogous to that point about how at a higher level or a federal level, you can say things and do things that are more difficult to do at a local level, I want to talk to national media and corporate media, who present corporate crime as kind of a puzzle, but not an especially urgent one. You know? There’s a sense that harm was done, people may have died— thinking about Deepwater Horizon, thinking about, you know, Exxon Valdez—livelihoods destroyed. But the feeling you get is that somehow the harm wasn’t done in a way that we can adequately address, meaning punish in such a way as to actually serve as a deterrent.
And then my beef is that they kind of stop there. It’s like, golly, we don’t have the tools to respond to a Bhopal, we don’t have the tools to respond to the poisoning of a community, the legal tools, and that’s the end of the story. I feel like—and what you’re saying is there are things that we have that we could do, that could make real change in people’s lives if we would push for them.
BS: There is the power of the pulpit, and there is absolutely no reason that between responsible leadership, and responsible media reporting on that leadership, that a broader message cannot be gotten out. We tend to want to make it too complicated. We tend to want to say that, ah well, this is too hard, it’s difficult. I mean, you can have some appreciation for that when you look at all of the resources that were poured in by the federal government to gain a conviction on a misdemeanor count that Blankenship defended with a legal team paid $14, $15 million, and those expenses are still ongoing, as he will inevitably appeal to the Fourth Circuit to defend against that attack. Dollars that didn’t come out of Blankenship’s pocket, by the way, but dollars that will be paid by Alpha Natural Resources, the company that purchased Massey after UBB.
When the tentacles of the legal system—and we know all about that; 14-, 15-, 16-year-old fights, believe it or not, are not unusual in the American legal system—and so, when the tentacles of the legal system grasp it, hold it, and all the complications that come for that, sometimes it’s just too easy for the national media or others to say, oh, it’s more difficult than it’s worth to get to the root of this. When really there are other ways, and that’s the pulpit, to get out and get clear communication to people. How hard is it to say to the Congress of the United States, listen, one vote, one vote, we go from a one-year criminal penalty on a misdemeanor charge to a multi-year criminal penalty on a felony charge. Why is it that the safety of those coal miners’ lives does not matter enough to get that one vote out of you, Congressman?
JJ: Right. Well, let me ask you this. CNN’s Anderson Cooper was talking about Upper Big Branch, and he said, “It’s the kind of accident that isn’t supposed to happen anymore.” I often think that media are most telling in their kind of offhand comments, and that, to me, was telling. Let me imagine I know what he thinks he means there, “wasn’t supposed to happen anymore.” But the reality is, miner deaths and workplace deaths are not a historical artifact. These are things that happen every day, and part of the media misunderstanding has to do with thinking that they’re rare, that they’re unusual, and that they’re from the past.
BS: I think that’s absolutely right. As I said earlier, 53 men at least died under Don Blankenship’s watch. You know, we watched Upper Big Branch because 29 died in one spectacularly stupid explosion. But there are another 20 miners or so underground, one or two at a time, dying because of the same management style, the same sense of dollars over men, the same sense of production over safety, that accounted for Upper Big Branch.
For me, there’s a fatalism in the Appalachian community that drove me crazy and continues to drive me crazy. And that is that, well, some things, you know, basically you just got to—this is the lot we have in life, this is the hand God dealt us, sometimes you just got to put up with things and deal with it. That’s bull. I mean, the laws are on the books, there are inspectors there to enforce the law, and there should be prosecution for the people who disobey the law. End of story.
If that becomes the rubric, if that becomes the way in which we conduct ourselves as a society, then hopefully we will get to the point where the Upper Big Branches or the Aracomas or the mangled arms and twisted limbs and broken backs are things of the past. But to put it off as — sometimes I get concerned that we think that, you know, I can turn off the TV and it goes away. Well, it doesn’t go away. It’s there. And it’s not going to go away until that step-after-step, step-by-step mechanical effort is undertaken to get the law in place and enforce the law, period.
JJ: Well, just one more question in a positive direction. Because I think Appalachia could be a rich source of news stories. Right now, the coverage is almost a curiosity. You know, look at these people loving this industry that’s killing them. It could be the source of really transformative stories about how do we transition out of fossil fuels, how do we help the people and the communities that have been bound up with these industries, and how do we do it in a human way? I just wonder, if you’re talking to journalists, what would you like to see them pursue, what are some stories you would like to see them cover, get into, investigate, that could provide a different kind of aspect on this story?
BS: In many ways — and this will sound foreign to a lot of your listeners, I’m sure. But in many ways, Appalachia right now is a microcosm of America. It’s always just been more raw down there, it’s always been more up against it, and there is a transformational change going on in that region, as the world evolves in its energy policies and otherwise, that really is going to put a culture through a meat grinder, so to speak.
And it’s the first and best opportunity that we have in the States, it seems to me, to look at what’s going on and say, if we can get beneath and understand and report and effectively describe for the people of this country, as well as the policy makers and decision makers of this country, how these forces are at work, and take it that next level past the superficial, get past the stereotype and try to get to the actual mechanics of what’s happening economically and politically down there through this transitional time, it’s a road map for all of us for the future. Because, inevitably, all of us are going to face that.
JJ: We’ve been speaking with Bruce Stanley. Thank you very much, Bruce Stanley, for joining us this week on CounterSpin.
BS: Janine, thank you so much for your time. I really appreciate it.
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This piece was reprinted by RINF Alternative News with permission from FAIR.