Jeff Clements

October 28, 2011

“Industrial homicide” by a “rogue corporation.” That’s the verdict this week from the United Mine Workers  Association after an exhaustive investigation and report into the April 2010 explosion that killed 29 men at Massey Energy’s Upper Big Branch Mine.

The Mine Workers’ report comes as Delaware Attorney General Beau Biden’s office continues to consider a request of Free Speech for People, Appalachian Voices, and Rainforest Action Network that he initiate action to revoke the Delaware corporate charters of Massey Energy Co., now a wholly owned subsidiary of Alpha Natural Resources.

On top of all of Massey’s previous lawbreaking, two days after the release of the Industrial Homicide report this week, a West Virginia jury convicted a Massey security chief on federal criminal charges of lying to investigators and destroying documents. What was he lying about? It turns out that he was trying to cover up the fact that Massey instructed employees to violate federal laws, and to warn foremen in advance of federal inspections into life-threatening conditions at the Massey mine.

A federal criminal investigation into the conduct of higher officials in the Massey corporation continues.  Eighteen Massey executives and employees took the Fifth and refused to cooperate with an earlier state investigation into the Upper Big Branch mine explosion deaths.

The Delaware Constitution requires that the Delaware legislature only grant corporate charters subject to revocation for abuse of the privilege of incorporation, such as repeated violations of law.  Delaware law empowers the Attorney General to initiate such a proceeding in Delaware’s Court of Chancery.

Massey Energy Company presents a classic case for revocation of corporate charters.

As detailed in West Virginia’s recent Independent Investigation Panel Report to Governor Massey Energy “normalized deviancy” and committed more than 62,000 violations of law.  The report documents Massey corporation’s “culture of illegality,” “codes of silence” and intimidation, and its “too big to be regulated” attitude. The report describes Massey’s “incalculable damage mountains, streams, and air in the coalfields; creating health risks for coalfield residents by polluting streams, injecting slurry into the ground and failing to control coal waste dams and dust emissions from processing plants; using vast amounts of money to influence the political system; and battling government regulation” protecting coal miners safety and the health and environment of the Appalachian people.

What about the merger with Alpha– why shouldn’t that end the charter revocation matter with Massey? Two main reasons:

First, Massey’s Delaware corporations continue to exist. The shareholders have simply changed. Massey continues as a subsidiary of Alpha.

Second, as Ken Ward, Jr. at Coal Tattoo has reported, the merger itself was intended to avoid exactly the public oversight and accountability that the people of Delaware demanded when they insisted that the state reserves the right to revoke the privilege of a corporate charter.

Among the questions that a charter revocation investigation and proceeding might well ask is why shareholders, directors and executives who operated Massey as a “criminal enterprise,” in the words of Robert Kennedy Jr., should be rewarded with a merger and a share in hundreds of millions of dollars of booty? And why should shareholders and investors such as Bank of America reap the gains from a merger “resolution” of the Massey crimes? Why should the people of Delaware and America be left in the dark about how these shareholders, directors and executives at Massey abused the privileges of incorporation?

You can join the call for revocation of Massey’s corporate charters and learn more about this issue here.

You can download the UMWA Industrial Homicide report here.