By Ken Ward, Jr.
October 10, 2017 - The U.S. Supreme Court will not hear former Massey Energy CEO Don Blankenship's appeal of his criminal mine safety conviction, the court announced Tuesday.
Justices turned down Blankenship's petition, including it on a weekly order list of more than 200 cases in which a request for a "writ of certiorari" -- the type of order in which the Supreme Court agrees to hear a case -- was denied without any reason given or further comment offered.
In doing so, the court allowed to stand Blankenship's conviction for conspiracy to violate federal mine safety and health standards at Massey's Upper Big Branch Mine, where 29 miners died in an April 5, 2010 explosion.
"We are pleased with but not surprised by the Supreme Court's decision to deny the Blankenship petition,” said U.S. Attorney Carol Casto. “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."
Two years ago this month, jurors in U.S. District Court in Charleston began hearing testimony against Blankenship in the high-profile case involving charges against a coal executive who was once one of the region's most powerful figures in a trial that focused on the rampant safety violations at Upper Big Branch in the months leading up to West Virginia's worst coal-mining disaster in a generation.
Blankenship, 67, was convicted of conspiracy to violate safety rules and then sentenced by U.S. District Judge Irene C. Berger to pay a $250,000 fine and spend one year in prison, both the maximum allowed under current federal law that classifies criminal mine safety violations as misdemeanors. Blankenship completed his one-year prison sentence in early May, and is currently serving his one year of supervised release. Berger recently modified the terms of Blankenship's supervised release so that he could report to probation officials in Las Vegas, where he now lives.
Earlier this year, the 4th U.S. Circuit Court of Appeals in Richmond affirmed Blankenship's conviction.
Blankenship had argued on appeal that Berger incorrectly instructed the trial jury that Blankenship's "reckless disregard" of federal mine safety standards amounted to the criminal willfulness needed for a conviction and that Berger was wrong to deny the defense the chance for a second cross-examination of former Massey official Chris Blanchard, a major government witness. Coal industry lobby groups from West Virginia, Ohio and Illinois had warned that Blankenship's conviction would pave the way for coal executives to be prosecuted for making "tough decisions" necessary to "operate a successful company."
Writing for the 4th Circuit, Judge James Wynn said that criminal penalties were intended as a mechanism to punish "habitual and chronic" violators who choose to pay fines rather than remedy safety violations.
"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.
In a prepared statement, Blankenship said the Supreme Court decision came as no surprise, but blamed his legal loss on the court being too busy with litigation over which bathroom a transgender high school student should use.
"Our court system is so tangled up trying to decide whether illegal is illegal and whether males can use female public restrooms that they have no time to concern themselves with whether American citizens have received a fair trial," Blankenship said. "The judicial system is broken top to bottom and it's not fixable."
Blankenship, described by prosecutors as "immensely wealthy," continues a personal public relations campaign saying that he was wrongly convicted and arguing his widely-discredited theories about the cause of the Upper Big Branch explosion.
While Blankenship was not charged with causing the disaster, the accusations against him focused on major violations of safety standards - mine ventilation, roof support and dust control - known for decades to be effective in preventing underground explosions. Investigations by the U.S. Mine Safety and Health Administration, the Governor's Independent Investigation Panel, led by longtime mine safety advocate Davitt McAteer, the state Office of Miners Health, Safety and Training, and the United Mine Workers union agreed that the mine disaster was caused by a longtime pattern of safety violations by Massey and by Blankenship's insistence that the company put coal production and profits ahead of safety protections for miners.
The Trump administration Department of Justice snubbed Blankenship in his appeal, urging the Supreme Court not to hear the case and sticking by the legal positions taken by the Obama administration when it prosecuted the former Massey CEO. Trump's nominee to run MSHA also told a congressional committee that, if confirmed, he is not likely to reopen the agency's investigation of the Upper Big Branch explosion.