The Dark Side of Non-Prosecution Agreements: Massey Energy Co.
Photo credit: Robert Hune-Kalter | Talk Radio News Service
For four agonizing days in April 2010, the world awaited news of the fate of the 29 miners trapped as a result of an explosion in the Upper Big Branch mine then owned by Massey Energy Co. The horror we all felt upon learning of their tragic fate was magnified by what emerged later: Massey had “engaged in a deliberate, long-standing, and deceitful effort to thwart the mine safety laws that were enacted to prevent exactly this kind of tragedy.” This misconduct included concealing from government inspectors more than 300 safety law violations.
Yet even the preventable deaths of 29 miners and the deliberate deception on the part of Massey were not enough to trigger a criminal prosecution. Instead, the Justice Department entered into a non-prosecution agreement with Alpha Natural Resources Inc., the post-merger successor to Massey, which allowed the company to avoid any criminal charges whatsoever. The Justice Department touted the agreement’s requirement that the company take steps to improve mine safety and fund research into additional safety measures.
But the $80 million the company was required to make for mine safety improvements under the agreement, the $48 million it was required to place in a trust for research, the $46.5 million it was required to pay in restitution to the families of the dead miners, and the $34.8 million it had to pay in penalties to the Mine Safety and Health Administration – a total payment of $209.3 million — pale in comparison to the $4.29 billion Alpha earned in sales and revenues in 2014. And the money does not come close to making up for the preventable deaths of 29 individuals.
Non-prosecution agreements like the one the government reached with Massey Energy do a disservice to our fundamental notions of fairness and justice. As David Uhlmann, the former heard of the Department of Justice’s Environmental Crimes Section put it, by allowing wealthy companies to “buy their way out of criminal prosecution,” these kinds of non-prosecution agreements “sen[d] a terrible message about how we view corporate misconduct and weaken the Department’s commitment to address corporate crime.”