Defending coal’s victims

GELLERMAN: T’is the season for awards. There were TV’s Emmy’s, the MacArthur genius awards and the Heinz Award for the Environment. The winner receives a quarter of a million dollars, making the Heinz one of the largest individual achievement prizes in the world.

This year Thomas FitzGerald is getting the check. He’s founder and director of the Kentucky Resources Council. There, he’s helped fashion environmental laws and has offered free legal services for people harmed by coal mining operations in the bluegrass state. Over the past 25 years, he’s been involved in hundreds of cases but there’s one that Thomas FitzGerald remembers best.

FITZGERALD: It was a tragedy. In 1979, there was a waste dam. The fine material that’s washed from the coal ? its called slurry ? they pumped this behind a face of coarse rock and slate and it collapsed at four in the morning and washed down into a very narrow valley and killed one of my clients. She was a 83 year old post mistress who had retired and she didn’t even know the waste dam was there. There were three separate agencies that were responsible for assuring that that dam was properly designed, constructed and inspected, and not one of the three had done their job. That case will always stand out in my mind, ’cause Nellie was a wonderful woman and the idea of her being crushed to death by this wall of coal slurry is something that haunts me to this day.

GELLERMAN: In terms of this tragic case with Nellie and the dam, has anything changed as a result of your legal involvement.

FITZGERALD: I worked with the attorney that represented her sons’ estate, and they won a wrongful death case. In turn, the attorney and Nellie’s son Clark donated $5,000 to me, which was the beginning of the Kentucky Resources Council. Since Nellie’s death in ’79, there have been additional waste dam failures, but you know, the tools are there, in the ’77 mining law, to create more accountability on the part of the coal industry.

GELLERMAN: But I understand that you used a 1977 surface mining act in an unusual way ? that there’s a little known part of the law that you used to great persuasion.

FITZGERALD: It’s interesting ? when Congress enacted the law, they were adamant that mining should be one of many possible uses of certain lands, and they set aside certain lands by law as being inappropriate for mining: within 300 feet of a house, unless the homeowner said it was okay, within 500 feet of a church or school, within 100 feet of a cemetery. But they also created a process where you could petition to have other lands set aside as unsuitable for mining. So, we’ve used the “lands unsuitable” process to set aside, for example, the two major towns in Bell County, which is right on the southern border of the state, Pineville in Middlesbrough. Both get their water supply from lakes, and we were able to petition both of those water sheds: from ridge top to ridge top cannot be mined in order to protect their water supply.

GELLERMAN: So you were able to persuade the mining companies not to mine there, versus litigating which would have taken many, many years.

FITZGERALD: Well in this case, it actually wasn’t really persuading them as much as invoking a kind of ? almost a land use provision. You know, the final one that ? and I did mention ? is we filed a petition to stop a mountain top removal operation over on Big Black Mountain which is the tallest mountain peak in the state and it’s one that has a northern forested ecosystem, even though we’re not in the north ? it’s that high in elevation. And, through a negotiated process with the timber companies as well as the state of Kentucky, we were able to purchase the timber rights and to protect Big Black Mountain from the 3,000 foot elevation up, it can’t be minded or timber. So that was ? that’s probably one of the more visible victories, because, you know, it’s the tallest peak in the state.

GELLERMAN: You’re something of an environmental hero nowadays, but I imagine that you’ve made quite a number of enemies down there in coal country.

FITZGERALD: There are a number of people who are ? you know, would just as soon I lived in another state. It is a very frustrating for a lot of the folks who are employed in the industry who see the damage that’s being done to the land and the water resources. We’ve had some difficult times where workers are put in a difficult situation of being told that they will lose their jobs. You know, the industry, any time you ask them to internalize any of the costs of doing business, they will cry that they’re going to go out of business and it’s gonna costs jobs. And, you know, we’re ground zero for climate change. We’re 98 percent dependent on coal-fired power here in the state. We’re one of the poorest states in the union. So we’ve got our work cut out for us when it comes to coming to try to solve the energy issues and trying to move forward into a carbon constrained world.

GELLERMAN: You do most of your work ? or all your work ? pro bono, right? Free?

FITZGERALD: Yes. I’ve never billed a client in all the years that I’ve been practicing. We are set up to be a legal services, a legal aid and technical and strategy assistance provider. If people can afford a lawyer we send them somewhere else.

GELLERMAN: Well, did you get your quarter of a million dollar check from the Heinz Family Foundation yet?

FITZGERALD: No, I have not. Having been gainfully underemployed all these years, we do have some debt, and three boys in college, so I think that this could not have come at a more opportune time.

GELLERMAN: Well, Mr. FitzGerald, again congratulations and thank you very much.

FITZGERALD: Oh thank you. It’s a pleasure visiting with you.