Former Massey Energy CEO and U.S. Chamber of Commerce Director could get 31 years for 2010's deadly West Virginia mine disaster...
By Ernest A. Canning on 11/19/2014, 6:05am PT  

On Friday, one day after the U.S. Department of Justice (DoJ) filed a 43-page, four-count Criminal Indictment [PDF] against infamous, long-time West Virginia coal boss Donald L. Blankenship, U.S. District Court Judge Irene C. Berger issued a gag order in the case in an effort to secure a federal jury in West Virginia that could "be fair and impartial and whose verdict [will be] based only upon evidence presented during trial."

That will be no easy feat.

Blankenship, whom Rolling Stone described in 2010 as "the Dark Lord of Coal Country," is the former CEO and Chairman of the Board of Massey Energy Co. An extraordinarily rapacious capitalist, Blankenship is credited with transforming coal into an "aggressive, partisan industry" where the goal was to extract coal "as fast and as cheap as possible."

Blankenship is a principle force behind the environmentally destructive "mountaintop removal" --- a practice that "has destroyed 2,000 miles of streams and damaged more than a million acres of forest," according to Jeff Goodell at Rolling Stone. Under Blankenship's leadership, the magazine reports, Massey also "injected toxic coal slurry," a biproduct of washing coal before its used for burning, "near underground aquifers" resulting in contamination of drinking water. (Where, elsewhere in the U.S., heart disease is the top killer, in Appalachia cancer is the number one cause of death.)

Last week's federal indictment, however, relates to "the Dark Lord's" role in the massive April 5, 2010 explosion at the Massey-owned Upper Big Branch mine ("UBB") that resulted in the deaths of 29 Massey employees. It was the nation's worst mine disaster in the past 40 years.

The indictment alleges that "Blankenship...conspired to commit and cause routine violations of mandatory federal mine safety standards," including "ventilation" regulations designed to prevent explosions, in order to maximize profits; that he "conspired to defraud the United States by impeding the federal Mine Safety and Health Administration ("MSHA") in carrying out its duties at UBB," and that Blankenship made "materially false the United States Securities and Exchange Commission" essentially to protect the value of Massey stock.

If convicted, Blankenship could wind up serving 31 years in federal prison. If convicted. Therein lies the rub....

Culture of impunity

Judge Berger's gag order may prevent further public statements from those connected to the case, like "the Dark Lord's" attorney, William W. Taylor, III, who told West Virginia television station WSAZ: "Don Blankenship has been a tireless advocate for mine safety. His outspoken criticism of powerful bureaucrats has earned this indictment." As reflected by some of the comments made during the WSAZ News broadcast (video posted below), a gag order cannot, of itself, create an unbiased jury pool in a region where a flood of coal industry "jobs" propaganda, in the face of ecological devastation wrought by mountaintop removal, has already pitted "neighbor against neighbor".

While Blankenship's attorney advanced the fact-free allegation that this indictment was simply an action by offended bureaucrats, it is interesting to note that it was a group of Massey Energy's own shareholders who were amongst the first to call for accountability. Decrying Blankenship's "callous disregard for the safety" of Massey's employees, the Change to Win Investment Group, described as a union pension fund group with over $200 billion in assets, called for his "immediate resignation" in the wake of the UBB disaster.

"The Dark Lord," who at that time, was the highest paid coal industry executive in the nation, would eventually heed that shareholder request, but not before he secured a "$27.2 million deferred-compensation account," to which he added a "salary continuation retirement benefit," that would net him more than $18,000/month for ten years and "free housing for his golden years, in the form of a $305,000 'company-owned residence'."

Recently, NPR released the results of a joint study it had made of "20 years of federal mine data through the first quarter of 2014." NPR performed the study together with the Mine Safety and Health News outlet.

Their data revealed:

• 2,700 mining company owners failed to pay nearly $70 million in delinquent penalties.
• The top nine delinquents owe more than $1 million each.
• Mines that don't pay their penalties are more dangerous than mines that do, with injury rates 50 percent higher.
• Delinquent mines reported close to 4,000 injuries in the years they failed to pay, including accidents that killed 25 workers and left 58 others with permanent disabilities.
• Delinquent mines continued to violate the law, with more than 130,000 violations, while they failed to pay mine safety fines.

Underscoring the gravity of these findings, NPR noted that the government found in excess of "15,000 violations" that could produce "fatal accidents, major disasters or mining deaths" absent the intervention of government inspectors.

In the year prior to the UBB disaster, according to a 2010 letter by, "Massey contested 34 percent of its alleged violations, compared with the national average of 27 percent that year. Massey is contesting violations valued at $10 million, a total of 11.2 percent of all the contested violations" before the federal commission at the time.

The allegations contained in the new criminal indictment are quite specific. During the period from Jan. 1, 2008 to April 9, 2010, UBB, which was the source of 14% of Massey's revenues, "was cited 835 times for violations of mandatory federal mine safety and health standards." These included 283 violations of ventilation laws that are designed to prevent the very type of explosion that occurred on April 5, 2010. Federal "mine safety standards concerning ventilation were basic, well-known principles of coal mining." UBB was repeatedly cited for violations on a "near constant" basis, even as they continued to violate those vital standards as a matter of "routine," according to the indictment.

The charges specifically accuse Blankenship of having directly pressured UBB management to violate safety standards, even going so far as to tell a company manager that if he didn't increase productivity, "I could Khrushchev you" --- an apparent reference to the former Soviet dictator who once, in the presence of Western reporters reportedly quipped "We will bury you."

The remark is consistent with Blankenship's authoritarian personality. One day after the horrific disaster at the Upper Big Branch mine, Blankenship was confronted by an ABC News reporter about a controversial $70 million local court case in which two West Virginia Supreme Court Justices --- one whose campaign was directly funded by Blankenship and the other who was photographed while vacationing "with Blankenship in the French Riviera" --- refused to recuse themselves. Blankenship told the reporter with cameras rolling: "If you're going to start taking pictures of me, you're liable to get shot."

Commenting on the incident, in which Blankenship could be seen physically shoving the reporter before snatching his camera, long-time West Virginia radio host and anti-coal activist Bob Kincaid explained to The BRAD BLOG that "The culture of violence that exists in Massey flows from the top down. In the last year, Massey supporters have been convicted twice in WV Magistrate courts for attacking/assaulting peaceful individuals. No jail time in either case."

Kincaid went on to suggest that the incident with the reporter "shines a light on the wholly dysfunctional, utterly corrupt judicial system in this state."

But now, this time around, "the Dark Lord of Coal Country" finds himself in the less friendly confines of a federal court.

Evidence vs. power of corporate propaganda

While ideally, cases should be decided only on the basis of the evidence presented in a court of law, one should not underestimate the power of corporate propaganda to indirectly reach inside that courtroom in the form of deliberately calculated juror bias.

Blankenship and his attorney have been silenced by the gag order. However, the order doesn't apply to Blankenship's dissembling allies, like the powerful right-wing U.S. Chamber of Commerce, where he served on the Board of Directors. Those allies cannot be expected to remain silent --- not when a threat to Blankenship's impunity may eventually lead to their own accountability.

As observed by the Velvet Revolution's Stop the Chamber campaign, the U.S. Chamber of Commerce is "an extremist political organization dedicated to corrupting American democracy by elevating the profits of big corporations over the well being of the citizens they serve." VR adds:

Polluters like Big Coal, Big Asbestos, and Big Oil only need call the Chamber to stop any accountability for their toxic destruction. Wall Street banks and CEOs need only make sure that they have paid their Chamber dues to ensure that they can continue to rip off the taxpayers. And killers like Big Tobacco need only form a partnership with the Chamber to ensure that they will be given immunity from lawsuits that seek accountability for the death and sickness of millions of Americans.

In fact, in 2010, just days after the UBB explosion, citing a litany of safety violations and fatal disasters courtesy of Massey Energy and its corporate partners, VR sent a letter to U.S. Attorney General Eric Holder [PDF] charging that Blankenship's "egregious conduct" warranted a "widespread criminal investigation into the conduct, policies and practices of Don Blankenship, both at Massey Energy and the U.S. Chamber of Commerce."

"This was not an accident," said VR's Kevin Zeese at the time, "but rather the result of deliberate and intentional decisions and actions of Don Blankenship, a director of the United States Chamber of Commerce."

[Full disclosure: The BRAD BLOG is a co-founder of]

Blankenship can no doubt count on the coal industry's principle lobbyist, the American Coalition for Clean Coal Electricity, which, in 2009, had been "hauled on the carpet by congressional investigators after the discovery of 13 forged letters purporting to be from legitimate organizations opposed to the clean-energy bill."

And, of course, Blankenship can count on coal-friendly politicians, like Kentucky's powerful Senators Mitch McConnell and Rand Paul. Where objective reports label the UBB explosion as the worst coal disaster in 40 years and BP's Deepwater Horizon disaster in the Gulf of Mexico (which followed just days later, killing 11 workers) as the worst oil spill in history, Paul brushed aside both deadly explosions, criticizing the federal government instead for attempted oversight.

"We come in, and it's always someone's fault," Paul told ABC at the time, adding cavalierly: "Maybe sometimes accidents happen."

That's a message that, no doubt, Blankeship now hopes his jury pool will hear loud and clear.


WSAZ's 11/14/2014 video report on the potential for biased jurors in the Blankeship case follows below...

* * *
Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

Share article...