Mike Eisenfeld, San Juan Citizens Alliance
When Westmoreland Coal Company filed for bankruptcy this fall, some might have assumed it would be nothing more than a continuation of the recent trend of coal giants such as Alpha Natural Resources, Arch Coal, and Peabody Energy going through bankruptcy reorganizations. We now know that’s not the case, and that the Westmoreland bankruptcy has potentially disastrous consequences for workers and the environment. Different forces drive the Westmoreland bankruptcy, and all signs indicate that the outcome will be far uglier. Founded in 1854, Westmoreland is the oldest coal mining company in the US, and its demise is a harbinger of the fate of the thermal coal mining industry as a whole.
Unlike the prior bankruptcies, which were driven by badly-timed investments in metallurgical steel-making coal, Westmoreland’s bankruptcy reflects the plummeting demand for coal-fired electricity generation. Westmoreland’s unique business model involves almost exclusive investment in “mine-mouth” operations, which are coal mines inextricably tied to a single power plant that serves as their sole customer. Initially, this approach was heralded as a way to use long-term coal purchase agreements to achieve some stability in the generally volatile coal sales market. But now that many of Westmoreland’s customers are shutting down their power plants, it looks more as if the company has lashed itself to the mast of a sinking ship.
Whereas Alpha, Arch, and Peabody were able to use the bankruptcy process to shed debt and otherwise emerge more or less the same as they’d been pre-bankruptcy (particularly now that Alpha has re-merged with Contura, the company it spun off), Westmoreland’s proposed reorganization plan allows the company’s lenders to act as vultures: picking the choicest morsels from the corpse and leaving the rest to rot.
Westmoreland’s debts exceed $1 billion. In the months leading up to its bankruptcy, the company secured additional loans of over $100 million, largely from a group of banks and hedge funds that had already made bad investments in the company. Those additional loans now allow the lenders to control the bankruptcy, and they are using this power to acquire just four of Westmoreland’s US mines. Those mines are the Rosebud, Haystack, and Absaloka Mines in Montana and the San Juan Mine in New Mexico. The fate of Westmoreland’s other mines—in Wyoming, North Dakota, Texas, and Ohio—is uncertain. Ominously, the company’s proposed reorganization plan includes the formation of a “Liquidating Trust” for the purpose of offloading an unspecified number of remaining assets. None of the Alpha, Arch, or Peabody bankruptcies involved liquidating trusts for coal mining assets.
The irony is that even the mines that Westmoreland’s lenders are using the bankruptcy process to acquire will be worthless in a few years. The Rosebud and San Juan mines each sell coal to a single power-plant buyer, and each of those power plants has announced that it is shutting down. The Rosebud Mine provides coal to the Colstrip plant, which has announced that it will close two of its four units in 2022 and is widely expected to close the remaining units in 2027. The San Juan Generating Station, the sole purchaser of coal from the San Juan Mine, already closed two of its four units in 2017, and is on track to shut down completely in 2022.
Westmoreland’s bankruptcy further demonstrates that thermal coal production is no longer an economically viable or sustainable industry by highlighting the cruel measures the company is willing to take to minimize costs. In its filings, Westmoreland has described its obligations for employee health and safety, the environmental reclamation of its mines, and the restoration of polluted waterways as “burdensome regulations.” The company has now begun using the bankruptcy process to try to strip away those obligations. Specifically, it’s indicated its willingness to force renegotiation of collective bargaining agreements and pension and retiree health benefits. And it has announced its intention to default on its pension, healthcare, and black lung obligations. Westmoreland is seeking bankruptcy court approval to default on nearly $335 million in post-retirement medical benefits, $41.7 million in pension obligations, and $21.8 million in black lung obligations. Westmoreland has made clear that it intends to transfer the few remaining assets of value to its lenders with “no obligation to assume or otherwise pay for . . . liabilities arising under retiree medical benefit plans, the Black Lung Benefits Act or the Federal Coal Mine Health and Safety Act of 1969.”
Dozens of retired miners and widows who rightfully fear for the loss of their pension and health benefits have submitted moving letters to the bankruptcy court. “Judge, as you know, coal miners, both underground and surface miners, are the hardest working people in America, and their safety and working conditions are the most dangerous in this country, with black lung, silicosis, and other breathing disorders, and from a safety standpoint, falling roofs, rocks, slips, falls, equipment mishaps, and working around beltlines, pulleys and other pinch points,” writes retired miner Jim Villos in one of those letters. “We the miners kept our end of the deal and Westmoreland needs to keep their promise, too!”
Although Westmoreland has not yet taken steps in the bankruptcy to evade its environmental reclamation obligations, it has been underfunding this work for decades. For example, only about 3 percent of the company’s Rosebud mine has been fully reclaimed, even though mining has been going on for approximately 40 years. Should Westmoreland choose to walk away from any of its mines, regulators would first try to cover the clean-up costs by foreclosing on third-party surety bonds. If those bonds failed to cover the full costs, taxpayers could be on the hook for the remainder.
Meanwhile, Westmoreland is throwing cash at its executives to try to entice them to stay. But the executives are fleeing the company, presumably because they recognize that the prospects for future employment in this dying industry are nil. Westmoreland laid out millions of dollars in retention bonuses in the year leading up to its bankruptcy, and is now seeking approval from the bankruptcy court to offer millions more. Westmoreland paid six of its highest-ranking executives a combined $5.9 million in the 12 months prior to its filing. It’s also secured bankruptcy court approval for additional incentive payments of up to $1.5 million per quarter. Despite this, Westmoreland’s Chief Financial Officer Gary Kohn—who already received $1 million in retention payments over the last year—announced his departure this month. The company’s CEO left the company in November 2017 in the run-up to the bankruptcy.
Westmoreland’s bankruptcy remains in process, and new twists are likely. The company has not yet announced what it plans to do with most of its operations; sale, closure, or abandonment are all options. Meanwhile, groups like Sierra Club and the United Mine Workers are opposing the company’s efforts to strip away its obligations to workers and the environment.
The final trajectory for the company and its many mines and workers will come into clearer focus in the early months of 2019. But it is already apparent that—unlike in the Alpha, Arch, and Peabody bankruptcies—Westmoreland itself will cease to exist. When the oldest coal mine operator in the country shuts down, the rest of the industry should take notice. The rest of us need to make sure these companies don’t succeed in shirking their responsibilities to the workers who dedicated their careers to coal mining, or to the lands that were sacrificed for the company’s economic gain.