Before death came to Upper Big Branch Mine, Donald L. Blankenship managed his patch of Appalachia like King Coal incarnate.
Outside homes in rural West Virginia flew the banner of his company, Massey Energy Co.: a flame leaping out of an M on a field of white.
Blankenship was a command-and-control chief executive of a company that a state investigation called “a towering presence in the Appalachian coalfields.” He took a dim view of bureaucracy and regulation, insisting on production reports every half hour and buzzing around in a helicopter inspecting mines, according to investigator Patrick McGinley.
Now Blankenship is on trial, five years after one of the deadliest disasters in the history of American coal killed 29 miners at Upper Big Branch. The 65-year-old has pleaded not guilty to criminal charges that he conspired to break safety and health laws, impeded regulators’ inspections and lied to investors about the company’s compliance with U.S. rules. Jury selection continues in the case, which could reverberate far beyond the troubled coalfields of West Virginia as prosecutors push to step up investigations of senior executives for alleged corporate wrongdoing.
Blankenship – a free-marketer who blogged under the heading “American Competitionist” – says inept regulators were largely to blame and promises to provide evidence to support his position. His lawyers have said the prosecution is, in part, looking to punish him for speaking out.
Blankenship and his lawyers declined to comment for this story, as did the Department of Labor’s Mine Safety & Health Administration and the U.S. attorney prosecuting the case in Charleston.
“He’s going to try to put the regulators on trial and put the blame on them,”said McGinley, an environmental law professor at the University of West Virginia.
CEOs who get in legal trouble often seek to blame subordinates. Blankenship, whose correspondence shows a hands-on approach, hasn’t done that. Prosecutors say e-mails and other evidence show he plotted with other officials to cut corners, hoodwink inspectors and pressure employees to keep their mouths shut. The government’s court filings include memos and recordings that they say show Blankenship telling executives to speed up production at all costs.
Massey’s former security chief, who tipped off miners about safety inspections and then lied to investigators about it, was convicted at a trial and sentenced to three years in jail. In addition, three lower-level Massey executives pleaded guilty to conspiring to get around mine-safety rules. Some of them are expected to testify for the prosecution during Blankenship’s trial.
Unlike other corporate chieftains who have gone on trial, “there’s a level of micromanagement here that makes it difficult” for Blankenship “to say he was out of the loop,” said Sam Buell, a Duke University law professor who served as lead prosecutor on the U.S. Justice Department’s Enron Task Force and isn’t involved in the trial.
In one 2005 Blankenship e-mail made public in court filings, he told mine managers “you need to ignore” other executives’ orders to focus on anything other than extracting coal.
“We’ll worry about ventilation and other issues at an appropriate time,” Blankenship wrote in a February 2008 memo included in court filings, telling them to “run coal.”
Defense lawyers have countered by pointing to a memo following up on the 2005 e-mail in which Blankenship said he wasn’t dismissing safety concerns.
“Some of you have interpreted that memo to imply” a lack of concern about safety issues, Blankenship said in the follow-up missive. “I would question the membership of anyone who thought I consider safety to be a secondary responsibility.”
Blankenship says he wanted to install a proper ventilation system but regulators blocked him and pushed him to use the one for which Massey was ultimately criticized. Regardless, he says, the mine blew up when it hit a hidden natural-gas pocket, and not because of what Massey did or didn’t do, a theory laid out in “Upper Big Branch — Never Again,” a 2014 documentary backed by Blankenship.
Prosecutors also have evidence from a secret taping system Blankenship installed in his Richmond, Virginia, headquarters, that was discovered when Alpha Natural Resources Inc. bought the company for $7.1 billion in 2011.
There’s no evidence Blankenship “agreed to a broad plot to impede” regulators, his lawyers said in one of dozens of legal filings. Prosecutors are twisting the law and subjecting Blankenship to an “obvious and substantial unfairness,” according to the defense.
In coal country, Blankenship has been a larger-than-life figure. Over the years, he spent heavily backing politicians and judges friendly to the coal industry, according to the state report.
He also contributed millions of dollars to a campaign that succeeded in replacing a state supreme court justice with a reputation for ruling against corporations with a lawyer who later sided with Massey in a dispute, according to court papers. The case went all the way to U.S. Supreme Court, which concluded the new justice should have recused himself because of Blankenship’s donations.
It’s unclear whether testimony about his political involvement, while widely reported in state media, will be introduced at trial.
Few are watching this case more closely than the coal mining families of West Virginia, in particular ones who lost loved ones at Upper Big Branch. Since the disaster, the coal industry’s slumping fortunes have only made matters worse. Coal mining jobs in the state have fallen 31 percent over the past three years, according to state figures. Alpha filed for bankruptcy protection in August.
Dr. Judy Jones Petersen said she’ll be in the courtroom to represent her brother, Massey supervisor Edward Dean Jones, who died at Upper Big Branch.
“The families are tired of waiting for justice,” Petersen said.
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