Bankruptcy as Bailout: Coal Company Insolvency and the Erosion of Federal Law

84 Pages Posted: 12 Mar 2018 Last revised: 12 Jul 2019

See all articles by Joshua Macey

Joshua Macey

Cornell University - Law School

Jackson Salovaara

Independent

Date Written: February 10, 2018

Abstract

Almost half of all the coal produced in the United States is mined by companies that have recently gone bankrupt. This Article explains how those bankruptcy proceedings have undermined federal environmental and labor laws. In particular, coal companies have used the Bankruptcy Code to evade congressionally imposed liabilities requiring that they pay lifetime health benefits to coal miners and restore land degraded by surface mining. Using financial information reported in filings to the Securities and Exchange Commission and in the companies’ reorganization agreements, we show that between 2012 and 2017, four of the largest coal companies in the United States succeeded in shedding almost $5.2 billion of environmental and retiree liabilities. Most of these liabilities were backed by federal mandates. Coal companies disposed of these regulatory obligations by placing them in underfunded subsidiaries that they later spun off. When the underfunded successor companies liquidated, the coal companies managed to get rid of their regulatory obligations without defaulting on the pecuniary debts they owed to their creditors.

Our analysis of the coal industry also has implications for bankruptcy theory. First, we provide a novel reason for questioning the view that bankruptcy proceedings should prioritize Chapter 11 reorganization over Chapter 7 liquidation. Recent coal bankruptcies show that companies are using the Bankruptcy Code to externalize costs onto third parties, despite statutes designed to force coal companies to internalize those costs. We argue that reorganization should not undermine Congress’s efforts to force firms to internalize the costs they impose on others. When a reorganization threatens to do so, liquidation is the better method for resolving bankruptcies. Second, our account poses challenges for scholars who argue that parties in bankruptcy proceedings should be able to contract around Chapter 11. While there are compelling reasons to allow parties to do this, some mandatory federal rules are necessary to prevent creditors and debtors from negotiating around federal regulatory programs. And third, the use of Chapter 11 to discharge regulatory obligations whose purpose is to further congressional policy impedes the government’s ability to adopt certain efficient regulatory designs. Liabilities that can be discharged generally have to have been incurred before the bankruptcy petition. Such policies often take the form of market-based regulations or performance standards. Moreover, bankruptcy judges treat liabilities that can be converted to money judgments as ordinary contracts while giving injunctions what amounts to an effective priority claim. As a result, bankruptcy law creates incentives for regulators to adopt command-and-control regulations—a common regulatory design that is disfavored in scholarly circles for being less efficient than the alternatives. We conclude by arguing that many of the strategies coal companies have used to discharge these federal regulatory obligations are illegal.

Keywords: Bankruptcy, Environmental Law, Administrative Law, Corporate Law

Suggested Citation

Macey, Joshua and Salovaara, Jackson, Bankruptcy as Bailout: Coal Company Insolvency and the Erosion of Federal Law (February 10, 2018). 71 Stanford Law Review (2019, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3136711

Joshua Macey (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Jackson Salovaara

Independent ( email )

No Address Available

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