Former Massey Energy Chief Executive Don Blankenship will not get his day at the United States Supreme Court, which declined Tuesday to hear his appeal for a misdemeanor conviction for conspiring to violate workplace safety laws. The coal industry has expressed its concern that the prosecution of Blankenship could lead to a wave of trials for those in fields that are naturally dangerous, such as mining. They had expressed fears that they could be held accountable for any unforeseen disaster.
The coal executive is one of a few chieftains to serve prison time, although the others were for financial crimes — not for crimes against workers and ignoring safety standards. In this case, 29 men died in an underground mining accident in April 2010 outside of Beckley, West Virginia.
Blankenship was convicted in December 2015 of one misdemeanor count. He was acquitted of two felony charges of lying to shareholders. In April 2016, he was sentenced to a year in prison.
Blankenship has said previously that he is “more than 100 percent innocent,” and that his conviction is part of a political persecution — everyone from the former president of the United States to US Senators to a judge who made faulty decisions and a prosecution out to get him, as quoted in The Hill.
Blankenship has maintained that his safety record was in line with other, bigger mines. He has also said that the blast was caused by a mandate to reduce ventilation and by escaping natural gas — not the combustion of excessive coal dust and methane created by neglect.
He also blamed any lapses in safety on his underlings, although prosecutors at trial presented much evidence to show that the chieftain was involved in even the most minor decisions, like how much to pay the hourly truckers who haul coal.
During the trial, the government did play tapes of phone calls that Blankenship had surreptitiously recorded in which he apparently dismissed any notion that black lung disease — from breathing in too much coal dust — is a serious medical condition. Autopsies of the dead miners indicated most had black lung. The implication here is that the men were disposable assets.
After his conviction in the US District Court for Southern West Virginia, he then appealed his case to the Court of Appeals for the Fourth Circuit in Richmond, which rejected that plea in January.
The Ohio, Illinois and West Virginia Coal Associations had filed an amicus brief asking the Fourth Circuit of Appeals to consider their views in support of Mr. Blankenship. While laying out their argument, the coal associations say explicitly that they do not wish to address the specifics of the former coal barons case; rather, they feel that criminal law has been misapplied here — that government could tag anyone with a crime if it searched long and hard enough.
“Given the heavily regulated nature of the coal industry, where citations for non-criminal violations of the Federal Mine Safety and Health Act of 1977 are a routine aspect of federal regulation designed to make mining safer, it is imperative that the demarcation between business decisions and criminal conduct be clear, concrete and defined,” writes Christopher Brumley, partner with Flaherty Sensabaugh Bonasso in Charleston, WV.
But a Charleston Gazette-Mail story quotes Judge James Wynn at the 4th Circuit, who wrote that the crimes here are not ones of misfortune or even oversight but of a “habitual and chronic” nature, which deserves a harsher penalty. Mr. Blankenship, chose to pay fines rather than fix problems — because it was cheaper to do so. “Put differently, a long history of repeated failures, warnings and explanations of the significance of the failures, combined with knowledge of the legal obligations, readily amounts to willfulness,” Wynn wrote, according to the story.
“We are pleased with but not surprised by the Supreme Court’s decision to deny the Blankenship petition,” added U.S. Attorney Carol Casto, as reported by the same Charleston Gazette-Mail story. “Now, hopefully, the families of those lost and others impacted by the UBB explosion and long history of safety violations can find some closure and begin the long and difficult process of healing.”
The U.S. Attorney for the Southern District of West Virginia had emphasized that a maximum sentence — a year in prison — would convey that rules matter and that they save lives. Anything less would imply that the laws are meant to be broken, the office said. Defense attorneys countered those arguments by saying that the government has “sensationalized” the case and distorted the facts, falsely suggesting that the defendant had intended to send those 29 men to their deaths for the sake of profits.
In the final analysis, Judge Irene Berger — the daughter of a coal miner — agreed with the federal government, saying that Blankenship had abused the trust of the former Massey Energy’s shareholders and its employees. “Safety must be paramount.”