CHARLESTON, W.Va. — Despite several rulings that appeared to limit such a strategy, lawyers for Don Blankenship are mounting a defense that is already rich with the former Massey Energy CEO’s frequent criticism of government efforts to regulate the coal-mining industry and with Massey’s battles with federal mine-safety regulators.
Jurors in the landmark trial have heard testimony and viewed documents that referenced an “unreal” pace of violations and “new interpretations” of old laws by the U.S. Mine Safety and Health Administration after President Barack Obama took office in early 2009, a period when the Upper Big Branch Mine — the focus of the case against Blankenship — was struggling with growing safety problems.
And late last week, jurors heard several lengthy discussions about complaints from Massey officials about the efforts of MSHA officials to enforce a new mine ventilation rule that was put in place as a result of the congressional response to a series of major fatal mining explosions and fires in 2006, including one that killed two miners at Massey’s Aracoma Alma No. 1 Mine in Logan County.
Blankenship’s defense team, with lawyers from the Washington, D.C.-firm Zuckerman Spaeder and Spilman, Thomas & Battle’s offices in Morgantown and Charleston, telegraphed this approach many months ago, when they argued in pretrial motions that the case was a political attack on Blankenship, prompted at least in part by his outspoken criticism of the Democratic elected officials. U.S. District Judge Irene Berger denied motions to dismiss on those grounds.
Lead defense lawyer Bill Taylor, though, hinted strongly in his opening statement Oct. 7 that his team would continue to push a defense that included subtle — and sometimes not-so-subtle — jabs at government mining rules and federal regulatory agencies.
Taylor told jurors, for example, that the amount of time MSHA inspectors spent at Upper Big Branch doubled between 2007 and 2009 and that coal operators struggle to comply with a system where “what one inspector considers to be a dangerous accumulation [of coal dust], another one may not…