The Marshall County Coal Company et al v. Oliver et al

Filing 26

MOTION for Leave to File Brief Amicus Curiae by ACLU of West Virginia. (Attachments: # 1 Proposed Amicus Brief, # 2 Exhibit Exhibit A)(Crofts, Jamie)

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Exhibit A Case 5:17-cv-00099-JPB Document 26-2 Filed 08/01/17 Page 1 of 11 PageID #: 937 Transcript: “Coal: basically cocaine for Thomas the Tank Engine. We've heard a lot about coal this past year, particularly from President Trump. In fact, arguably a key reason that we have this cautionary Bible story in the White House was his ability to connect with mining communities during the campaign, even doing this in West Virginia:” Clip of Donald Trump:  “Nice nice, yeah I’ll put it on alright.” “Okay, okay, let me stop you right there. It is not easy watching someone I doubt has done a day of hard labor in his life show how he thinks coal mining works. It’s like watching a four-year-old play store. Oh that's right Adin, you just hand them your ducky and then you get cookies, you idiot. But what that crowd probably remembered from that day was how Trump’s speech ended:” Clip of Donald Trump:  “We’ll start winning winning winning, and you are going to be very proud, and for those miners, get ready because you're going to be working your asses off, alright. Thank you everybody.” “That's right you're going to be working your asses off, like that, right? That's how you do it. Maybe some of this you'll do? Or maybe this? Maybe you’ll do so…. You’re mimers, right? You’re mi… you're going back to the coal mimes, aren't you? I don't know what you people do. But Trump promising to bring back coal jobs is undeniably potent. And to listen to his EPA Administrator, it's a promise that he's already keeping.” Clip of EPA Administrator Scott Pruit:  “Since the last fourth quarter of last year to most recently, added almost 50,000 jobs in the coal sector. In the month of May alone, almost 7,000 jobs.” “Okay so the only problem there is that those numbers are bullshit. The Bureau of Labor Statistics has the actual number of coal jobs created since last year has been just 1,300. So that 50,000 new jobs claim was off by 48,700, which for this administration is actually uncharacteristically accurate. I just assumed that the figure would be more like 12 mining jobs, and they're not actually jobs, they're lobsters, and Trump didn't create them he just remembers 12 times in his life that he saw a lobster. But look, there is no doubt Trump claims coal is a huge priority for his White House, and let's set aside tonight the fact that it is environmentally catastrophic— which we shouldn't, because it is, but this president clearly doesn't care about that. 1 Case 5:17-cv-00099-JPB Document 26-2 Filed 08/01/17 Page 2 of 11 PageID #: 938 He pulled out the Paris agreement citing coal as one of the reasons. He's lifted a freeze on new coal leases on public lands and revoked a rule to limit coal mining companies from dumping debris into local streams, with miners behind him both times. So if coal jobs are so important to him, let's talk about them, and let's begin with a number, because it's smaller than you might think.” Clip of news broadcast  “While President Trump has talked about reviving the coal industry which employs 76,000 people, retailer JCPenney, on the verge of bankruptcy, employees 114,000, alone.” “Wow, so there's a lot that is surprising there. For a start, I didn't even know that JCPenney had employees anymore. I thought anyone who walked into a JCPenney was just handed the keys to the store. Say ‘here, see if you can make it work. Good luck!’ But 76,000 co-workers is less than you'd expect. Although, in the areas where they are concentrated, coal mines are central to the community. Some schools have miners as mascots for their sports teams, or even or even they have coal industry sponsored fairs where kids make a variety of projects, perhaps none as awesome as this one:” Clip of kid with awesome project:  “It's about a lump of coal named Lumpy. He’s on a journey to figure out what he’s gonna be and what he could be when he ‘grows up’” “I love that kid, and by the way, top-notch use of air quotes there because you and I both know kid that lumpy is not going to ‘grow up.’ Lumpy is going to live a short life underground until one fateful day his friends notice he's missing. ‘Where's lumpy?’ they'll say. ‘Has anyone seen lumpy?’ They'll form search parties and put posters up around town but, in the back of their minds, they know the truth. They've always known. And one day there's a knock at the door. It's the news they've all been dreading all along. Lumpy has been burned to death in a horrifying ritual alongside the entire Lump family. This is why we don't name them, because then we get attached. Anyway the point is, when coal jobs go away, communities feel it, especially because these jobs are high-paying. A coal miner can make upwards of eighty thousand dollars, so that's not easy to replace. And the industry itself points much of the blame for lost jobs at President Obama, with one of the loudest voices being this guy:” Clips of Bob Murray:  “These are my employees. I care for them deeply. Barr[a]ck Obama and his Democrat followers are destroying entire segments of America.”  “Mr. Obama is an outlaw.” 2 Case 5:17-cv-00099-JPB Document 26-2 Filed 08/01/17 Page 3 of 11 PageID #: 939   “I pray every day that this man's incompetence will be overcome. That his evil agenda will be overcome.” “When you have a 52 year old coal miner in your office crying because you were forced to lay him off, that's what Obama has never seen because he's never had a job.” “What are you talking about? He had a job. Listen to yourself, his job was ‘destroying entire segments of America with his evil incompetence or his name was not Barr[a]ck Obama.’ That man was Bob Murray, the CEO of Murray energy and we will get to him later. But his claim that Obama's regulations have been job killers is worth taking a look at because, while coal mining jobs undoubtedly did decline under Obama, it’s worth noting th[at] coal mining jobs have also been declining for decades. Just look at that trend line. Coal industry jobs declined and roughly the same rate as careers in the Zeppelin industry, and babies named Adolf. Oh, some still exist there's just not nearly as many of them anymore. And I'm not saying that Obama’s regulations had no effect, but researchers have found that they had very little impact relative to other factors. When they studied the decline in expected demand for coal from a decade ago they found that nearly half of that drop was owing to the drop in natural gas prices, and another 18% was due to the growth in renewable energy like wind and solar. And there is perhaps no more dramatic evidence of coal losing out to solar energy than this:” Clip of news broadcast:  “Work has begun to power the Kentucky coal mining museum, not by coal, but by the Sun.”  “We believe that this project will help save at least eight to ten thousand dollars off of the energy costs on this building alone.” “It's true. The Kentucky coal mining museum is now using solar energy. It's like finding out the Rock and Roll Hall of Fame was brought to you by Smashmouth. And the hard truth is, even if consumption wasn't declining, companies would still be cutting jobs as they are increasingly replacing miners with machines.” Clip of news broadcast:  “You had all this mechanization going on. The people leaving. But, it's come to the point now where they don't do underground mining if they can get away with it, they do mountaintop removal and surface mining. You can mine a whole mountainside. And I'm talking about a whole mountainside within a year or two with around seven to twelve people and you that's all you need.” 3 Case 5:17-cv-00099-JPB Document 26-2 Filed 08/01/17 Page 4 of 11 PageID #: 940 “He's right. Coal mining, like almost all industries, is facing increased automation. And I say that well aware that in five to ten years I am probably going to be replaced by a robotic English tea kettle that screams depressing money stats at you. And look, the rise of alternative energies is a good thing for the earth as a whole, and some point out that as coal jobs go away new green jobs are opening up—which is true, but not where coal miners live. West Virginia and Kentucky, for instance, rank near the bottom in solar jobs per capita. So, for the people who face layoffs, the future can look bleak.” Clip of what appears to be a coal miner who lost his job:  “It's really depressing whenever you, y’know you have kids and going to work one day and they say ‘well you don't work here no more.’ You gotta go home and face your family and say ‘em you don’t have a job no more.” “Yeah, and that is devastating. And I know that it does not help someone in his situation to be told statistics by someone like me, in a TV studio, possibly powered by coal, who doesn't have the skills or muscle mass to be a miner, and who looks like the result of a drunk threesome between Chris Hayes, Austin Powers, and a potato. But, I know that. But the question is: what does help someone in that situation? Donald Trump insists that he's helping miners by reducing regulations on coal companies. But too often, people conflate coal, coal miners, and coal companies, and imply that when you help one, you help them all. But they are not all in the same boat, although they may insist otherwise. For instance, when the coal company Alpha Natural Resources filed for bankruptcy two years ago, their CEO stressed how painful that was.” Clip of interview with the CEO of Alpha Natural Resources:  “Are more mine closures possible?”  “They are, unfortunately.”  “And for Crutchfield, that's clearly the hardest part of it all. When I asked him about this photo displayed prominently in Alpha headquarters—a photo called ‘daddy's hands’—the emotions were hard to hold back.”  “That is the backbone of America and we have that photograph just to remind everybody who we serve.” “That's a nice sentiment just slightly undercut by the fact that, according to court documents, Alpha later asked its banks bankruptcy trustee if it could save three million dollars by terminating the health and life insurance benefits of around 1200 retirees while at the same time seeking permission to pay bonuses totaling up to around 12 million dollars to top executives including that guy that you just saw. Which is the sort of thing that might make daddy's hands want to do something like this [referencing image of hands flipping the bird] and you wouldn't really blame them for that. 4 Case 5:17-cv-00099-JPB Document 26-2 Filed 08/01/17 Page 5 of 11 PageID #: 941 And yet coal CEOs constantly claim to workers that it's us against them. Take Don Blankenship, ex-CEO of Massey Energy; he once held a rally featuring Ted Nugent, Hank Williams Jr., and a rousing speech from Blankenship himself:” Clip of Don Blakenship:  “I know that our safety and health of coal miners is my most important job. I don't need Washington politicians to tell me that, and neither do you.” [Applause] “Okay, so speech aside, that's a hell of a look. It takes a brave man to go half Kerri Strug and half the ‘time to make the donuts’ guy. And if you thought if you thought the presence of a man who's just been ejaculated on by a flag was as upsetting as that rally could get, well, guess who else was there?:” Clip of Sean Hannity:  “You believe in God, right? Faith. Family. Country. We believe America is the shining city on the hill. Right, we believe in freedom. How you doing [inaudible]? By the way there's a really hot looking chick in the third row there. How you doin’ baby? I'll take you backstage to meet Hank a little later if you want. You wanna meet me later?” “What the fuck was that? In the course of his speech he referenced God, quoted Reagan, and engaged in sexual harassment. That man really is Fox News. But but notably notably just just a few months after his rally against Washington safety rules, Blankenship's company had a massive explosion killing 29 miners, and Blankenship denies responsibility. But, in the wake of that disaster he was sentenced to a year in prison for conspiring to violate mine safety and health standards. He actually just got out and now has to rebuild his life with absolutely nothing but his estimated golden parachute of 86 million dollars. And that will help you get back on your feet. 86 million will help you get back on anyone's feet. You want to get back on Fred Astaire’s feet? That's no problem. For 86 million, grab a hacksaw, we are digging up Fred. Blankenship is already lobbying the Trump administration to oppose more onerous criminal laws for mine owners, saying ‘they will not improve mine safety.’ And I would like to think that Trump would not listen to him because, you know, he loves the miners so much. But there's not much evidence of that. What there is evidence of is his affection for mine CEOs. His Secretary of Commerce is Wilbur Ross who ran the company that had the deadly sago mine disaster, and he's also close to that man that you saw earlier— Bob Murray—who claims that Trump called him shortly after the election to deliver a special message:” Clip of Bob Murray: 5 Case 5:17-cv-00099-JPB Document 26-2 Filed 08/01/17 Page 6 of 11 PageID #: 942  “He said ‘tell your coal miners I've got their back,’ and then he said ‘I Love You Man.’” “Well, congratulations on that Bob! You're now in the very select group of people that Donald Trump has said I love you to, along with presumably the worst Baldwin, exactly one of his two daughters, and the hollow-eyed business ghost that greets him in the mirror every morning. And Murray actually illustrates the divide that can exist between a coal company’s interests and those of its workers. And I'm going to need to be careful here because when we contacted Murray Energy for this piece they sent us a letter instructing us to ‘cease and desist from any effort to defame, harass, or otherwise injured Mr. Murray or Murray Energy,’ and telling us that ‘[f]ailure to do so will result in immediate litigation.’ And a cease and desist letter is, incredibly, something that we've never received before on this show. Not even the nation of New Zealand has sent us one, and we’ve wallaby kicked those M&M burglars in the balls almost every week. So so I have to proceed with caution. I'm not going to say, for instance, that Bob Murray looks like a geriatric Dr. Evil—even though even though he clearly does—because Murray Energy has sued people in the past. Just last month they sued the New York Times for libel. They also sued everyone from a contributor to The Huffington Post; to these two papers in Ohio…. In fact, Murray's current general counsel told reporters that this paper had included a potential economic loss of—and I am NOT making this up—1 billion dollars: which, when you think about it, is exactly what you’d expect from a Geriatric Dr. Evil. And though Murray energy have insisted in the past that they only sue news outlets as a matter of last resort and never to chill free speech, their letter also tells us that they might pursue our damages to the fullest extent of the law including to the level of the Supreme Court of the United States. And that would actually be a real mistake because we have a personal relationship with those judges. And I'll give you a fun fact: if you scratch Justice Alito just behind his left ear, he pees on the floor. That’s true. That's true of the dog and the man. So so, as we have been explicitly told to cease and desist, let us do neither of those things and let's talk about Bob Murray. Because he often speaks on TV in defense of coal workers, but let's take a look at his actions, shall we. Because Murray's company recently unsuccessfully sued to block a rule aimed at reducing miners exposure to coal dust that causes black lung; a disease which killed as many as 10,000 people between 1995 and 2005. Murray insisted that the rule was illegal, destructive, and did nothing for miners but, uh, nothing for their health. Although last year, with the rule in effect, government reports indicated respirable dust levels fell to historic lows. And look, if you even appear to be on the same side as black lung you're on the wrong fucking side! That's the equivalent of watching My Girl and rooting for the bees. 6 Case 5:17-cv-00099-JPB Document 26-2 Filed 08/01/17 Page 7 of 11 PageID #: 943 And some of some of Murray's employees have clashed with the company over safety. A few years back, Murray proposed a program where miners could receive bonuses based on the amount of coal they extracted. It was voted down by employees who believed it would have an adverse impact on safety in the mines. But the company did it anyway, saying if workers didn't like it, they could just write void on their checks. And, amazingly, around 62 employees did just that with two going even further: one returning a check for $11 58 by writing ‘kiss-my-ass Bob’ on it; and another taking a check for $3.22 and writing ‘eat shit Bob.’ And I have to say, well-played miners, because you could have sent that message on a cake, or you could have sent it on a bear with a big stuffed heart, but to write it on your $3 bonus check: well played to you sirs. And then there was the deadly collapse at the Crandall Canyon Mine in Utah. Murray attracted attention for a bizarre press conference in which, while rescuers were still working, he was making bold claims about the cause of the accident:” Clip of Bob Murray:  “This is the first major accident I've ever had in one of my coal mines. In 20 years of being in existence, their first major accident. And this was caused by an earthquake. Not something that Murray energy or Utah American did or our employees did or our management did.” “So here is the interesting thing about that: to this day Murray says that the evidence proves he was correct that an earthquake caused the collapse, but that was decidedly not the conclusion of the government's investigation which found it was caused by unauthorized mining practices, and there was no evidence that a naturally occurring earthquake caused the collapse. Murray does not want us talking about the accident saying it was an incredibly difficult time for the families. And though he admits that he was unable to satisfy the expectations of the family members he says he showed them honesty sincerity and compassion throughout the crisis. Although, according to both a Department of Labor investigation and congressional testimony by some of them, their pain was exacerbated by Murray's behavior while they waited for news of their loved ones:” Clip of Mike Marasco (son-in-law of deceased miner):  “All we heard was earthquake earthquake. We did not want to hear about earthquakes, but wanted to know when we were going to see our loved ones again. Murray more than once yelled at us when we asked questions.” “Wow! Yelling at distraught families when they ask questions is not okay. It is barely okay to do it with five year olds, and they ask over forty two million questions a day! I give up! ‘Why are birds?’ is not a question I know the fucking answer to, Kyla! Google it! Google it! Google it! [Applause] 7 Case 5:17-cv-00099-JPB Document 26-2 Filed 08/01/17 Page 8 of 11 PageID #: 944 And there is one more Bob story, Bob Murray story that I would like you to know about: it's an apocryphal tale concerning how the company began. Union miners claim that Murray used to tell them that he was sitting on his back porch contemplating his future when he was approached by a squirrel who hopped up next to him, looked him in the eye, and said ‘Bob Murray, you should be operating your very own mines.’ And we asked Murray's company about that story and they told us it never occurred. And you know what, I actually believe Murray on that one because I think deep down we all know if squirrels could talk they wouldn't be giving career advice to coal executives. They'd be loudly listing their favorite nuts. Okay let's go: acorns, chestnuts, walnuts, almonds, cashews are good, although of course technically not a nut, Brazil nuts not my favorite but I wouldn't kick him out of bed either, do you feel me guys? Do you feel this? And look, to get back to jobs, Murray argues that he has provided thousands of them to mining communities, and he's right about that. And for those communities, that fact might understandably outweigh everything else, especially if Murray and Trump can bring coal back. But notably, even Murray himself is careful regarding that.” Clip of media interview with Bob Murray:  “Can those jobs come back if it's a Donald Trump presidency?”  “I don't think those jobs can come back ma'am, but we can stop the destruction. I don't think it can come back to where it was but we can stop it and that's what I've told Mr. Trump and he gets it.” “Uh hang on there Bob, no he doesn't. He's a (A) he barely gets what mining is. He may well think it's just running up to things that he wants and yelling “MINE!” That's that's possible. And and b (B) he’s repeatedly told miners that they're going to be working their asses off. If Trump really cares about miners you'll be putting a plan in place for their futures as mining continues its long-term decline. But he isn't doing that. Now luckily there are some small things being done by others. One company called Bitsource in Kentucky has been hiring miners as software programmers and paying them through their retraining:” Clip of Bitsource employee:  “I’ve learnt numerous code languages. I’ve [inaudible] CSS. I’ve learnt PHP, HTML, Javascript, Twig, and Yamal.” “And that's really impressive so much so that I will ignore the fact that Twig and Yamal all sounds like a bootleg Russian DVD knockoff of ‘Lilo and Stitch.’ Look, that program is encouraging but it won't suit everyone, and at present it only has nine jobs for former miners. 8 Case 5:17-cv-00099-JPB Document 26-2 Filed 08/01/17 Page 9 of 11 PageID #: 945 And Trump is actively hurting the chances of other projects like it. His new budget proposes cutting funding for the Appalachian Regional Commission which helps revitalize communities affected by coal mining job losses by funding employment programs that have helped, among other things, bit-source. And you might wonder, well, why would a guy who says he loves miners all the time do that? Well for a sense of how he really feels just read a Playboy interview from 1990 where he said, and I quote, ‘if I had been the son of a coal miner I would have left the damn mines. But most people don't have the imagination—or whatever—to leave their mine. They don't have ‘it.’’ And you know what they certainly don't have what Trump has, specifically, inherited wealth and hair like the wispy pubes of an aging Yeti. But the point here is Trump needs to stop lying to coal miners. We all do stop telling them that their jobs are all coming back when they not. Stop telling them that coal is clean when it isn't. And stop pretending that this isn't an industry in the middle of a difficult and painful, albeit necessary, transition. An honest conversation about coal and its miners needs to be had, and we should neither cease nor desist from having it. Which actually reminds me, one more thing here: Bob Murray, I didn't really plan for so much of this piece to be about you but you kind of forced my hand on that one, and I know that you are probably going to sue me. But you know what, I stand by everything I said. Although, just to reiterate, I do not think you claimed a squirrel talked to you. Even by your standard, that would be a pretty ridiculous thing to say. So I believe that you have never been spoken to by a squirrel. Until, that is, tonight. Look Bob! Look! Look Bob! It’s Mr. Nutter Butter, Bob! Look! Look! Huh! Look! He’s Mr. Nutter Butter!” Mr. Nutter Butter:  “Hi John.” “Hey there, Mr. Nutter Butter, I understand that you have a message for Mr. Bob Murray!” Mr. Nutter Butter:  “I do.” “OK” Mr. Nutter Butter:  “Hey Bob. Just wanted to say, if you’re planning on suing, I do not have a Billion dollars. But I do have a check for three acorns and 18 cents.” “Oh, that’s very nice of you, Mr. Nutter Butter.” 9 Case 5:17-cv-00099-JPB Document 26-2 Filed 08/01/17 Page 10 of 11 PageID #: 946 Mr. Nutter Butter:  “It is.” “Yeah” Mr. Nutter Butter:  “It's made out to: ‘Eat Shit, Bob!’ [inaudible] kiss my ass!” “Thank you Mr. Nutter Butter!” 10 Case 5:17-cv-00099-JPB Document 26-2 Filed 08/01/17 Page 11 of 11 PageID #: 947 My name is Gabriel Kallen. I prepared this transcript and, to my knowledge, it is a true and correct copy of the episode of “Last Week Tonight with John Oliver” which aired on June 18, 2017. Signed, Gabriel Kallen 11

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