Big Coal’s Assault on Property Rights

Big Coal’s audacity can be astounding. For years, the coal company Consol has been dumping toxic wastewater into mined-out underground mines in Buchanan County, Virginia, without the consent of the owners of the property where these old mines are located. In 2008, the Virginia Supreme Court ruled that this is an illegal trespass against the landowners’ basic property rights. In other words, the Court affirmed what should have been obvious to Consol: landowners have a right to say “NO” to the dumping of waste on their property.

In one publicly disclosed 2010 settlement, Consol paid $75 million in damages resulting from this practice. Clearly, the Supreme Court’s recognition of landowners’ basic property rights was getting to be a major inconvenience for the company. And when following the law is inconvenient, the coal industry’s response is often to try to rewrite the law. Most well-known are the industry’s continuing attempts in Congress to gut the Clean Water Act and other environmental laws now that these laws are being better-enforced. But to change Virginia’s longstanding property rights law, Consol had to go to Richmond.

During the 2012 General Assembly session, the Virginia Coal Association and Consol worked hard to advance House Bill (HB) 710 – a bill that, in its original form, would have given coal companies a carte blanche right to do whatever they wanted with empty underground mines on other people’s property – without obtaining consent from the landowners.

The industry wasn’t initially up front with legislators about the fact that what it really wanted was the right to dispose of waste in these old mines, and some legislators may have agreed to support the bill before they realized this. Only when Appalachian Voices circulated a proposed amendment to the bill placing waste disposal without landowner consent off-limits was the industry forced to acknowledge what it really wanted.

Appalachian Voices and partners made the rounds at the General Assembly, worked hard to get the word out about the bill, and gained allies on both sides of the aisle willing to oppose it. Citizens from across the state called their state senators. Southwest Virginia landowners showed up to defend their rights, testifying to poisoned wells and financial harm from waste injections. Senators Donald McEachin, Dave Marsden, Chap Petersen, and Creigh Deeds spoke courageously against the bill.

We came within one vote of defeating HB 710 in committee. And, on the day of the floor vote, it looked like we had the votes to kill it by a razor-thin margin. Realizing this, the coal industry was forced to make a last-minute maneuver: they amended the bill to partially address the objections to it.

Incredibly, most senators didn’t even see this rewritten “substitute” bill until they got to the Senate floor to vote, but some who opposed the original bill were willing to vote for the substitute, and it passed. The substitute is an improvement, but it still takes rights from landowners and gives them to coal companies. Unlike the original bill, it requires that coal companies obtain consent from landowners before dumping waste in old mines on their property. However, it goes on to say that “such consent shall not be unreasonably withheld if the owner has been offered reasonable compensation for such use.”

This raises the question of whether “consent” is really consent if the government can force you to give it. Ironically, many state legislators who supported a constitutional amendment this session that would ban the taking of private property for “private gain, private benefit, [or] private enterprise” also supported HB 710, which takes property rights away from landowners for the private gain of coal companies! The coal industry clearly benefits from a double standard in Virginia. Notably, Consol alone has spent over $430,000 on state-level political campaign contributions in Virginia in the last two years.

It will be now up to judges to decide whether landowners refusing to allow waste disposal on their land are being unreasonable! The bill also leaves other major questions to the courts, but it does give landowners who want to say “NO” to coal companies more of a foothold than the original bill would have. The legislative fight benefited greatly from outspoken citizens and those principled legislators who were willing to put up a strong fight for basic rights in the face of corporate greed, but the final battles between landowners and coal companies will occur in the courts.

About Tom Cormons

Appalachian Voices' Executive Director, Tom holds a degree in law from UCLA and has a life-long appreciation for Appalachia's mountains and culture. An avid hiker and whitewater rafter, his latest pleasure is in sharing with his kids a deep respect and appreciation of nature.