This article originally provided by The Charleston Gazette

April 3, 2008

John McFerrin

Latest round in ongoing dispute: Gift card option irritates friends of coal industry

FOR the Ohio Valley Environmental Coalition, there is good news and bad news. The good news is that they are not living in a third-world dictatorship where those in power round up dissenters and have them shot. The bad news is that they find themselves sharing a state with people who share the mentality - if not the tactics - of third-world dictators: people who haven't enough confidence in the strength of their position to tolerate any opposing views.

The ongoing dispute is over whether mountaintop removal mining is a wise practice. This has been going on for years.

The current round is over the Kroger gift card program. Under that program, one may buy a Kroger gift card from any one of dozens of non-profit organizations. Kroger then donates a small fraction of purchases made with that gift card to the non-profit organization that the customer designates. Kroger has no role in selecting the organization that gets the donations. Customers may select a church, a school or any other non-profit organization that participates in the program. One of the participants is the Ohio Valley Environmental Coalition.

This is more than the Friends of Coal and the West Virginia Coal Association could stand. They announced that they planned to inform all their members both in West Virginia and in other states of Kroger's perfidy. While not explicitly urging a boycott of Kroger, the Coal Association announced a plan to "get the word out" to the people who work in the coal industry and "spend hundreds of thousands of dollars weekly to put food on the table." Since the announcement, letters from miners or their families attacking Kroger have started to pop up. While there is no way of knowing for sure, such campaigns usually mean there has been some persuading going on at work.

Let's get this straight. Kroger didn't do anything to the Friends of Coal, the Coal Association or anybody else connected with the coal industry. It only gave its customers an opportunity to choose to donate to the Ohio Valley Environmental Coalition. It didn't tell its customers they had to donate to it or to anybody. It didn't suggest that its employees write letters to the editor condemning the Coal Association.

So what is this Ohio Valley Environmental Coalition? Is it so evil that a small, neutral connection to it, the kind Kroger has, warrants the wrath of the Friends of Coal and the Coal Association?

In the first place, they are espousing a majority view. According to polling data, mountaintop removal mining is opposed by two-thirds of the population of West Virginia. It is also opposed by the Ohio Valley Environmental Coalition.

In its opposition, its tactics are solidly American. When it has the opportunity to speak, it criticizes mountaintop removal mining. Its position is that such mining is destructive to the land and people of West Virginia and that it should be eliminated. It is not a remarkable message. It is an opinion held by a majority of West Virginians.

Even the minority of West Virginians who disagree should realize that speaking out is what American democracy is all about. People have a right to be heard.

OVEC's other tactic - the one that has the Coal Association and its publicity arm, the Friends of Coal, all riled up - is surprisingly conservative. They go to court to seek enforcement of environmental laws. In the instance that has the coal guys in an uproar, OVEC managed to persuade a federal judge to enforce the federal Clean Water Act. The result of the enforcement was a restriction on mountaintop removal mining.

While the coal guys characterize anyone who disagrees with them as a radical, the court system is inherently conservative. It enforces laws approved Congress. The Clean Water Act was passed during the Nixon administration by an overwhelming majority of the United States Congress. In the case of the coal industry, it is being enforced by a federal judge.

The federal courts are not the forum of choice of radicals. To get to be a federal judge, one has to be appointed by the president and confirmed by the U.S. Senate. It is a system designed to weed out lunatics. One doesn't get to be a federal judge without being acceptable to two branches of government and being more or less acceptable to the prevailing political system. The judge who decided the most recent mountaintop removal case, Robert Chambers, was nominated and approved without controversy.

The Coal Association needs to lighten up. This is America. If you do something illegal, someone is going to call you on it. Someone is going to go to court to make you stop. If you do something that a lot of people find abhorrent, someone is going to criticize you. What the Ohio Valley Environmental Coalition does is not some aberration; that's the way things are supposed to work.

The Coal Association has more lawyers than Carter has little liver pills. If it doesn't like the result in court, it can appeal.

OVEC believes that mountaintop removal mining is harmful to our state. If the coal guys think otherwise, they can say that. They already have billboards everywhere. Within walking distance of my house there are two pro-coal billboards. They can buy some more of those TV commercials with the cutesy animated bug talking about how great mountaintop removal really is.

What they shouldn't do is attack their opponents and threaten boycotts of anyone who is remotely connected to its opponents. It's not just that such tactics are the province of those who know in their hearts that their position on the merits is untenable. Worse than that, it's un-American.

McFerrin, a Beckley lawyer, is a Gazette contributing columnist.