How We Got Here: The Role of Government in the Creation of Coal-Dependent Communities

Danielle Marshall*

The effects of transitioning away from coal will dramatically disrupt the lives of miners, their families, and the larger communities, regions, and states that have so far depended on and built an entire way of life around coal. A 2019 study found that twenty-six counties in the United States could be classified as “coal-mining dependent,” meaning coal-related revenue may fund a third or more of local county budgets.¹

Local and federal government played a crucial role in creating coal-dependent communities, a point necessary to recognize as we rapidly transition to a clean energy economy. Government involvement becomes painfully evident when tracing the history and development of West Virginia, the Appalachian state at the heart of coal country. The state’s founding in 1863 intensified land purchases made by capitalists seeking resources,² and locals were virtually powerless against larger corporate or other powerful players.³ Land previously under common control was divided among the powerful elite and industry, eliminating land ownership rights and, for most, valuable mineral rights as well.⁴

Governors, legislators, and even eventually the judiciary, in tandem with Congress, incentivized and attracted corporate and industrial investment to West Virginia, feeding into this dispossession.⁵ A revised constitution in 1872 gave more power and influence to corporations by granting more authority to local judges and loosening title laws to better enable land purchases by investors.⁶

The state took control of all the economic activity in the state, granting massive power to incoming industries.⁷ These practices were legalized through “[a]n obscure piece of jurisprudence,” called Dillon’s Rule.⁸ This rule provided that local governments were mere instruments of, and subservient to, the state.⁹ This weakened local government—and therefore local consent—and strengthened the power of the state government to promote and protect corporate industrial interests.¹⁰ In effect, “Dillon’s Rule streamline[d] access to natural resources” since there were less government actors to influence.¹¹ This theory of state-local government relationship was affirmed by the Supreme Court in the 1907 case of Hunter v. City of Pittsburgh in no uncertain terms.¹²

Miners were wholly dependent on mining companies in nearly all aspects of life, including housing,¹³ food and household goods,¹⁴ and even money, or “scrip,” which were non-convertible coupons or coins usable only in the mining camps.¹⁵ Run as their own small police states, companies frequently enforced their own laws, managing their own police departments and governing bodies,¹⁶ and even controlling infrastructure development.¹⁷ This control included responding with extreme violence when there were efforts to unionize, with company efforts sometimes legitimized by the help of the federal government.¹⁸ Indeed, miners were actively prevented from seeing any economic benefits from their labor, partially because of union suppression.

Conflicts between workers and their employers were so common and violent in the late nineteenth and early twentieth centuries that they were dubbed the “mine wars.”¹⁹ The incident at Blair Mountain in 1921 is a prime example. This conflict in West Virginia remains the largest armed labor uprising in United States history.²⁰ Tired of oppressive conditions and inhumane treatment, over 10,000 miners organized an army to march on the local sheriff, who was in the pocket of the local coal company.²¹ After nearly two weeks of fighting, President Warren Harding sent the United States Army, replete with warplanes and bombs, to put down the insurrection.²² The result was a blow to coal unions and efforts to reform company policies.²³

The United States Supreme Court also stepped in to prevent unionization. In Hitchman Coal & Coke Co. v. Mitchell, the plaintiff coal company sought an injunction against defendants, leaders of the United Coal Workers of America, to prevent the union leaders from interfering with the current relationship between the coal company and its employees to force unionization.²⁴ The Court stated “[t]he case involve[d] no question of the rights of employés [sic]”²⁵ and that the activities of the Union to strike in an effort to compel the company to allow employees to unionize was unlawful.²⁶ Simply put, coal companies had the right to make non-unionization a condition of employment.²⁷

Because every aspect of life was tied to coal and beholden to the coal company, today there is a severe lack of economic diversification, a “mono-economy” (or monopsony), where the life of the community itself depends on the coal economy;²⁸ community employment and revenue are subject to the booms and busts of the coal industry. Tax revenue and royalties may fund, for example, public school systems, road maintenance and construction, and social and health services.²⁹ Losing this revenue will result in failing infrastructure, disappearing social services, and limited education opportunities, all in addition to losing coal-related jobs, which have been decreasing rapidly since at least the 1980s.³⁰

And while there are numerous factors contributing to the collapse of the coal industry, it “cannot simply be attributed to ‘natural causes’; rather, government policies allowed—and at times actively contributed to—the industry’s decline.”³¹ The primary driver of this decline is natural gas,³² and the federal government played a critical role in the exponential increase in natural gas production, making an intentional public policy decision to minimally regulate the natural gas industry.³³ When natural gas production exploded around 2005, it led to a major drop in price with which coal could not compete.³⁴

We must ask, and answer, the question of how we will transition to a clean energy economy in a way that does not leave behind and abandon the individual workers, communities, regions, and states that have depended on coal for decades to support their livelihoods and economies. The long and messy history of the federal government, beholden to the whims of a powerful industry, exploiting coal communities confers a moral obligation, an affirmative duty,³⁵ to implement a federal, comprehensive, just transition policy to ensure they are not sacrificed again in the name of energy.³⁶ There are scholars, institutions, nonprofit organizations, and governments past and present who have worked to establish frameworks for just transition policies.³⁷ Now it is a matter of political will and recognition of what these communities are owed to take the next step.

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¹ Bethel W. Tarekegne, Kamila Kazimierczuk & Rebecca S. O’Neil, Pac. Nw. Nat’l Lab’y, Coal-dependent Communities in Transition: Identifying Best Practices to Ensure Equitable Outcomes 2 (2021).

² Steven Stoll, Ramp Hollow: The Ordeal of Appalachia 131 (2017).

³ See id. at 164; see also Ann M. Eisenberg, Distributive Justice and Rural America, 61 B.C. L. Rev. 189, 237 (2020) [hereinafter Eisenberg, Distributive Justice].

⁴ See Stoll, supra note 2, at 165; see also Eisenberg, Distributive Justice, supra note 3, at 237. An interesting point to consider in this dispossession narrative is the deep class prejudice that existed between the elites and the “mountain people.” See Eisenberg, Distributive Justice, supra note 3, at 236.

⁵ See Stoll, supra note 2, at 131, 137–38; see also Eisenberg, Distributive Justice, supra note 3, at 237–38 (noting that “the state and federal legal apparatus served to funnel local residents into the coal labor machine, to give the coal industry a mandate to pollute freely and to deprive local residents of opportunities for redress.”).

⁶ Stoll, supra note 2, at 137. County judges were effectively elevated to the role of governmental administrators. Stoll, supra note 2, at 137. With fewer government checks and balances, the possibility of corruption from corporate interests naturally increased. See Stoll, supra note 2, at 137.

⁷ See Stoll, supra note 2, at 135–36.

⁸ Stoll, supra note 2, at 136. The rule is usually attributed to two cases from 1868 in Iowa and named for the author of the opinions, Judge John Forrest Dillon. See City of Clinton v. Cedar Rapids & Mo. River R.R. Co., 24 Iowa 455 (1868); Merriam v. Moody’s Ex’rs, 25 Iowa 163 (1868).

⁹ See generally John R. Nolan, Death of Dillon’s Rule: Local Autonomy to Control Land Use, 36 J. Land Use & Env’t Law 7 (2020) (detailing the history of Dillon’s Rule and the obstacles the rule poses to local land use control over negative externalities associated with fossil fuel industries).

¹⁰ See Stoll, supra note 2, at 137.

¹¹ Stoll, supra note 2, at 137.

¹² See Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79 (1907) (emphasis added).

¹³ See Stoll, supra note 2, at 213.

¹⁴ See Stoll, supra note 2, at 213, 222.

¹⁵ Stoll, supra note 2, at 222.

¹⁶ See Stoll, supra note 2, at 213, 221–22 (“[C]ompany rules functioned as martial law.”).

¹⁷ See Stoll, supra note 2, at 221.

¹⁸ See Stoll, supra note 2, at 212–13, 224.

¹⁹ See Trish Kahle, Coal Mining and Labor Conflict, Yale Univ.: Energy Hist., https://energyhistory.yale.edu/units/coal-mining-and-labor-conflict (last visited Apr. 16, 2023); see also Abby Lee Hood, What Made the Battle of Blair Mountain the Largest Labor Uprising in American History, Smithsonian Mag. (Aug. 25, 2021), https://www.smithsonianmag.com/history/battle-blair-mountain-largest-labor-uprising-american-history-180978520/.

²⁰ Hood, supra note 19; see also Campbell Robertson, A Century Ago, Miners Fought in a Bloody Uprising. Few Know About It Today, N.Y. Times (Sept. 6, 2021), https://www.nytimes.com/2021/09/06/us/coal-miners-blair-mountain.html.

²¹ Hood, supra note 19.

²² See Robertson, supra note 20;Ann M. Eisenberg, Just Transitions, 91 S. Cal. L. Rev. 273, 302 (2019) [hereinafter Eisenberg, Just Transitions].

²³ See Hood, supra note 19.

²⁴ See Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 233 (1917).

²⁵ Id. at 252–53. The Court reasoned that the employee rights were not at issue because the employees were not agents of the union. See id.

²⁶ Id. at 259.

²⁷ Id. at 251. This has, of course, changed because of later labor laws. Membership in the United Mine Workers of America was once strong—helping secure workers good paying jobs—but membership has been declining as the industry continues to fail. See Hiroko Tabuchi, Coal Jobs Prove Lucrative, but Not for Those in the Mines, N.Y. Times (May 2, 2017), https://www.nytimes.com/2017/05/02/climate/coal-jobs-prove-lucrative-but-not-for-those-in-the-mines.html (“[J]ust 2.5 percent of coal mining jobs were unionized in 2016, compared with over 40 percent two decades ago[.]”).

²⁸ Eisenberg, Just Transitions, supra note 22, at 301.

²⁹ See, e.g., Tara Righetti, Temple Stoellinger & Robert Godby, Adapting to Coal Plant Closures: A Framework for Understanding State Resistance to the Energy Transition, 51 Env’t L. 957, 963 (2021); Adele C. Morris, Noah Kaufman & Siddhi Doshi, Ctr. on Glob. Energy Pol’y, Columbia Int’l Sch. of Pub. Aff. & Econ. Stud., Brookings Inst., The Risk of Fiscal Collapse in Coal-Reliant Communities 16–22 (2019).

³⁰ See Morris et al., supra note 29, at 12 fig. 4.

³¹ Eisenberg, Distributive Justice, supra note 3, at 240.

³² See Trevor Houser, Jason Bordoff & Peter Marsters, Ctr. on Glob. Energy Pol’y, Columbia Int’l Sch. of Pub. Aff., Can Coal Make a Comeback? 10 (2017); see also Morris et al., supra note 29, at 10.

³³ Eisenberg, Just Transitions, supra note 22, at 304. There are, for example, laws that specifically exempt hydraulic fracking from environmental restrictions. See Eisenberg, Distributive Justice, supra note 3, at 239; see also Ann M. Eisenberg, Beyond Science and Hysteria: Reality and Perceptions of Environmental Justice Concerns Surrounding Marcellus and Utica Shale Gas Development, 77 U. Pitt L. Rev. 183, 206–07 (2015) (listing environmental protection laws that contain exemptions, including the Clean Water Act (see 33 U.S.C. § 1342(l)(2) (2019)) and the Comprehensive Environmental Response, Compensation, and Liabilities Act (see 42 U.S.C. § 9601(14) (2018)), among others).

³⁴ Houser et al., supra note 32, at 16.

³⁵ See J. Mijin Cha, A Just Transition: Why Transitioning Workers into a New Clean Energy Economy Should Be at the Center of Climate Change Policies, 29 Fordham Env’t L. Rev. 196, 199 (2017).

³⁶ See Eisenberg, Just Transitions, supra note 22, at 305–06 (“Fossil fuel communities have already been sacrificed for the sake of collective progress through their energy production activities. They stand to be sacrificed anew if their majoritarian encouraged dependency relationships are ignored in the transition to clean energy, as state and federal policy drivers continue to curtail or undermine these communities’ economic activities in the name of collective progress.”).

³⁷ See, e.g., Claire Wang, Sam Mardell, Jeremy Richardson & Uday Varadarajan, Rocky Mtn. Inst., Ensuring an Inclusive Clean Energy Transition: A Recovery and Revitalization Framework for Coal Workers and Communities (2022).