By: Will Emmons, Staff Member

The controversies surrounding the coal industry have led to a complex series of regulatory regimes that control workplace safety as well as environmental impact. Different state and federal agencies are responsible for these regimes, but many of them have one thing in common: reliance on individual plaintiffs, under the aegis of whistleblower or citizen suits, to ensure the law is enforced.[1]

In the safety context, it is true the occasional miner may win a series of 105(c) whistleblower claims.[2] However, advocates claim these successes are inadequate for protecting miners and criticize the Mine Safety and Health Administration (MSHA) for failing to compel companies to pay penalties.[3] Safety advocates argue the agency is under-staffed and under-funded and companies can "get away with murder."[4] Attorney Chris Regan has argued MSHA may be a “captured agency.”'[5]

Under environmental statutes, there are also issues with enforcement. Some scholars argue the 'cooperative federalism' of federal environmental statutes, a scheme that gives state agencies primary responsibility for applying federal law, results in the law not being enforced.[6] These scholars argue state budget cuts and political considerations, including competition with other coal-producing states make the framework completely reliant on citizen intervenors.[7] Point in case, in Kentucky, a group of citizen interveners recently won a settlement under the Clean Water Act against the state's chronically “do-nothing” Department of Natural Resources.[8]

There are several problems with relying on whistleblowers and citizen interveners for the heavy lifting. First, as a matter of principle, one hopes a democratically constituted government would seek to enforce its own laws to protect its citizens against depredation. Second, in the environmental context, citizen suits frequently raise constitutional standing questions.[9] Third, a whistleblower or citizen intervenor can never marshal the kind of resources the federal government or even state governments could even if they wanted to. While various non-profit law firms like Kentucky's own Appalachian Citizens' Law Center are providing plaintiffs with high quality legal representation for free, non-profits' resources are always as limited by their donors good will.[10] Finally, advocates argue coal companies are notoriously undercapitalized.[11] Even if a plaintiff wins a lawsuit, there is often little money to recover in a judgment.[12] The investors are protected by the corporate veil and may carry on the same illegal practices using another fictitious entity.[13]

Recently, economist Gar Alperovitz, proposed that the difficulty of regulating the banking system could be resolved by nationalizing it and running it as a public good.[14] I propose nationalizing the coal industry would similarly make coal extraction easier to regulate. This was UK College of Law graduate, Harry Caudill's plea at the end of Night Comes to the Cumberlands.[15] He recognized a nationalized coal industry under a Southern Mountain Authority, similar to the Tennessee Valley Authority, as tool to alleviate poverty and break the political power of coal bosses.[16] Today, a Southern Mountain Authority could also serve as a way to capitalize an economic transition for Appalachia as the world turns away from fossil fuels.

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[1]See infra note 2.

[2] Dave Jamieson, Charles Scott Howard, Whistleblowing Miner, Wins Another Round Against Arch Coal, Huffington Post (Apr. 13, 2013), http://www.huffingtonpost.com/2013/04/05/charles-scott-howard_n_3017913.html.

[3] James R. Carroll, Kentucky coal mine's unpaid fines show MSHA's penalty process still broken, critics say, Courier Journal (May 6, 2013), http://www.courier-journal.com/article/20130506/NEWS01/305060089?nclick_check=1.

[4] Id.

[5] Chris Regan, UPPER BIG BRANCH GUILTY PLEA REVEALS ADVANCE NOTICE GIVEN OF MSHA INSPECTIONS, Bordas & Bordas Attorneys, PLLC Blog (Apr. 18, 2012), http://www.bordaslaw.com/blog/2012/04/upper-big-branch-guilty-plea-reveals-advanced-notice-given-of-msha-inspections.shtml.

[6] Will Reisinger, et. al., Environmental Enforcement and the Limits of Cooperative Federalism: Will Courts Allow Citizen Suits to Pick Up the Slack?, 20 Duke Envtl. L. & Pol'y F. 1, 3 (2010).

[7] Id.

[8] Amanda Moore, Clean Water in Eastern Kentucky, Sargent Shriver National Center on Poverty Law (Mar. 3, 2013), http://povertylaw.org/communication/advocacy-stories/cromer.

[9] See generally Reisinger et al., supra note 6.

[10] Donate, Appalachian Citizens' Law Center, http://appalachianlawcenter.org/donate/ (last visited May 9, 2013).

[11] Carroll, supra note 3.

[12] Id.

[13] Id.

[14] Gar Alperovitz, Wall Street Is Too Big To Regulate, New York Times (July 22, 2012), http://www.nytimes.com/2012/07/23/opinion/banks-that-are-too-big-to-regulate-should-be-nationalized.html?_r=1&.

[15] John Cheves and Bill Estep, Chapter 3: The world comes to Whitesburg to take Harry Caudill's 'povery tour', Herald-Leader (Dec. 19, 2012), http://www.kentucky.com/2012/12/19/2448366/the-nation-takes-notice-of-eastern.html.

[16] Id.