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WVEC Green Legislative Wrap UpTo read the update online, scroll down to articles (or click on index links below). If you want to view or print an exact copy of the printed newsletter, try the PDF version. March 21, 2007
Under the Dome By Donald S. Garvin, Jr. DEP Rules Meltdown This is my annual rant about why the Legislature should not be allowed to mess with agency rules. There can be no better case in point than the total meltdown that occurred this legislative session with the Department of Environmental Protection rules. Because of the heated battle over the two water quality rules, none – I repeat, none – of the more than 20 various DEP rules were approved by the Legislature. They weren’t disapproved either. They were simply not acted on. They were not acted on because of the very real possibility that the protective stream lists contained in the two water quality rules would be gutted by amendments proposed by industry lobbyists and offered by their friendly Delegates on the House floor. In all my years as a member and lobbyist for the West Virginia Environmental Council, I have never seen anything like it. One long-time committee staff person told me that she recalled that the Legislature had once not acted on the rules for all the state’s miscellaneous boards and commissions because they simply ran out of time to act. But she also had never seen a year when legislative leadership actually chose not to act on an agency’s proposed rules. The rules that DEP proposes each year are important. They cover the whole gamut of what the agency regulates – air quality, water quality, hazard waste, solid waste, oil and gas drilling, and coal mining. DEP’s rules deal with critical and highly technical environmental issues, such as air and water quality standards, pollution limits, stream protections, recycling, waste transportation and disposal, and minimizing the impacts of resource extraction activities. In West Virginia DEP is the "expert agency" charged with developing these rules. DEP does this – for the most part – using professional technical staff and with varying degrees of input from a wide range of stakeholders, including environmental groups as well as industry. Once DEP finalizes the agency’s proposed rules, they are officially filed with the Secretary of State’s office, which is the official depository of all the rules of every state agency. DEP then provides copies of the proposed rules to the Legislative Rule-Making Review Committee. This is an Interim committee that is comprised of members of both the House and the Senate, and it is this committee’s responsibility to review the rules and forward them to the full Legislature for consideration. This is where the process begins to melt down. West Virginia is one of just a handful of states that allow the Legislature to actually "promulgate" agency rules. In most other states the expert agencies promulgate the rules and the Legislature can only vote them up or down. But in West Virginia, even though the rules are proposed by the various agencies, the Legislature can amend these rules, and even substitute their own rule in place of the agency rule. Even the U.S. Congress does not deal with agency rules this way. Federal lawmakers can only vote proposed agency rules up or down. But in West Virginia, legislators with no particular professional background in the issues at hand can completely rewrite proposed agency rules. The result is the maximum politicization of the process, giving the regulated industries almost full control over the very rules they are regulated under – through politics, not through science or technical expertise or sound reasoning. It’s an insane process and the WV Legislature ought to return rule-making authority to the agencies. There can be no better argument for why the Legislature should do so than the example of what happened to the DEP rules this session. But power and politics being what they are, don’t hold your breath waiting for this to happen. It’s a jungle out there. Spring is here, friends, and the songbirds are beginning to take on their brightest courting colors, so fill your bird feeders and enjoy show. Garbage Bills Suffer Deserving Defeat By John Christensen, WVEC Lobbyist As the clock struck midnight on Saturday, March 10th and the Legislature closed its session, WVEC had to feel pretty good about what had happened regarding our solid waste laws in West Virginia. The assault to seriously weaken this state’s model solid waste legislation began about mid-way through the session. But in the end we upheld the strong laws already on the books, and two terrible pieces of legislation – SB 629 and SB 701 – quietly disappeared into the night. SB 629 would have authorized a huge mega-landfill in McDowell County. It would have doubled the cap on the amount allowed at the landfill to 100,000 tons per month, just to be a depository for out-of-state garbage. SB 701 would have eliminated the concept of local control of our landfills. It would have abolished the state Solid Waste Management Board and county Solid Waste Control Authorities, and consolidated that control of solid waste management into the hands of the DEP. WVEC lobbyists, along with activists from the early "Garbage Wars" days and WV Citizen Action Group, helped kill these two terrible bills. I feel fortunate to have met the folks who came from McDowell County and across the state who attended the public hearing on SB 629 held in the House chamber. State citizens did a great job of getting the message across to legislators – the bill never made it out of the judiciary committee in the house. Imagine giving an out-of-state company preferential treatment to double the size of a landfill, bringing in railcars full of NJ, NY, and VA trash, and then trying to give the company a tax break on top of that? Citizens weren’t having any of it. If the DEP can’t properly monitor a class B landfill, how could we even imagine they could monitor a mega-dump like the one proposed in McDowell. (By the way, while lobbying against this turkey, I was invited to take a tour of the McDowell landfill in McDowell. I declined the offer. I don’t know about you, but I can think of better things to do with my time.) As for SB 701, I have been an applicant to serve on our local solid waste authority through appointment by DEP since early November last year and have yet to hear a reply from the agency. The vacancy on our board has existed for almost a year yet they haven’t seen fit to fill it. This puzzled me, but now I know why DEP has not acted on these appointments. They already had a plan (SB 701) to do away with local solid waste boards in favor of regional ones, appointed by you guessed it, the DEP. The sole sponsor of the Senate bill was Senator Brooks McCabe (D-Kanawha) who later intimated to colleagues that he wished he had never signed his name to it. Thankfully, neither the Senate nor House versions of the bill were ever taken up by committee. When it comes to garbage, I think that maybe our elected and appointed officials have forgotten whom they work for or that they are accountable to us for their work. I filed a Freedom of Information Act request with DEP last year so that I could read the leachate reports that our local landfill files with the agency. You know it took me many months to have it mailed to me and I finally prevailed only because I called them again to follow up. The report was marginal, hard to read, and sounded like our landfill company wasn’t exactly doing their job of standard testing methods to ensure the safety of our groundwater. Instead of enforcing the laws on the books, DEP is busy trying to make new law so they won’t have to enforce the old law. Does that make sense? We all know that this won’t be the last we see of these two bad bills, but at least now we know what they’re up to. As for this session, we lobbied hard to defeat bad solid waste legislation and we won. We told the Legislature, and Governor Manchin as well, that trash was not the business that West Virginia was open to. Early this year when it appeared that WVEC might end up with only one lobbyist on the Lobby Team, three new faces popped into the picture. First to come along was John "JB" Christensen. John is a WVEC board member, a long-time WVEC member and a veteran of the first "Garbage Wars." John is irrepressible. It was impossible to hold him back. And what a stroke of luck that he volunteered to lobby before we even knew we would be confronted with two terrible solid waste bills. Then there was Dennis Cunningham. Personality wise, Dennis is just the opposite of John – quiet, thoughtful, introspective. I have never seen anyone take such copious notes in a meeting. And he was capable of suffering the real torture of sitting through long and boring floor sessions in the House. He never complained and he was always there. And finally there was a wonderful young woman named Rowan Zoeller. For a variety of reasons, it did not work out that Rowan could be a paid member of the Lobby Team this year. That didn’t stop her. She spoke eloquently at the public hearing on the McDowell County landfill, and she volunteered countless hours doing all manner of E-Council tasks. These three new faces were real gifts, and WVEC owes them our deepest gratitude. Don Garvin, AKA would be solo WVEC lobbyist There are numerous ways to donate to a cause. Environmental causes (like ours!) are the best, especially when the donation is in the form of art. The WV Environmental Council is extremely fortunate to have among our members several talented artists who support our organization through music, visual arts, writings, film making, performing arts and artisan creations. I am very grateful for those who have supported past 'Artists for the Environment' and other WVEC initiatives, and for those who are able to continue supporting WVEC in this way. We all benefit from their creativity, and the fact that they take the time to perform at our events or donate a piece of art. Historically music, dance, the dramatic arts, paintings, photographs, sculptures, drawings, prints, short films, pieces of pottery, jewelry, clothing, quilts, graphic designs and the written word have played a significant role blending with WVEC's environmental efforts. A call for artists: "Artists For The Environment" is now an on going venture as we showcase various artwork, and sponsor semi-annual art openings at our new office building. We are accepting on-wall and off-wall artwork for display throughout the building and available year round. These works are for sale to our members by the artists with a partial donation going to WVEC. During our art openings we will feature West Virginia musicians, additional works of art and artistic endeavors. Film showings will also occur monthly beginning Friday, April 13th - doors open at 6:00 p.m. "What The Bleep Do We Know?" starring Marly Matlin will begin at 7:00 p.m. Come early for refreshments and socializing. If you are interested in participating in our "Artists For The Environment" initiative, please contact me at: deniseap@earthlink.net (please put "Artists / Environment in the subject box) or call the e-council office: (304) 414-0143. The first art opening will take place on Saturday, May 19th from 12 noon until 4:00 p.m. Support the Arts & the Environment! Please join us during these events! It's a wonderful way to relax, network, listen to the best music around, garner new works of art for your home or office - and just have fun while donating to good causes! Denise Poole, AKA artist for the environment How the Environment Fared in the 78th Legislature By Donald S. Garvin, Jr., The Regular Session of the 78th West Virginia Legislature ended at midnight on March 10 and most political pundits I know agreed that this was the best session for the environment in many years. All in all, there were more victories than losses on environmental legislation, with one major policy issue remaining up in the air. The "green" side won out this year on a variety of fronts, including garbage, global warming, protection of public lands, groundwater contamination in the coalfields, and possibly even on water quality and stream protections. What a Difference an Election Makes! For a lobby team advocating "pro-environment" positions, this session was indeed different. What a difference an election can make! Particularly on the House side! The 2006 elections brought new leadership and many new faces to the Legislature. At the beginning of the session I advised that "perhaps the best way to look at the ‘new order’ when it concerns environmental issues is that the playing field will be much more level than it has been in the recent past." Well, that was a serious understatement. This year the new Speaker of the House, Delegate Richard Thompson (D-Wayne) conferred with our lobby team frequently, included us in negotiations over the DEP water quality rules, and stood firm against industry proposals to further weaken protections for the state’s highest quality rivers and streams. The same can be said for the new chairperson of the House Judiciary Committee, Delegate Carrie Webster (D-Kanawha), who also conferred with our lobby team frequently, included us in negotiations over the DEP water quality rules, stood firm against industry proposals to further weaken protections for the state’s highest quality rivers and streams – and prevented a variety of bad proposals from being considered by her committee. It was a different year on the Senate side as well. Senator Bill Sharpe (D-Lewis), chairman of the Senate Energy, Industry and Mining Committee, was not present for most of the session due to undergoing major medical surgery he needed. Sharpe’s absence meant that Senator Jon Hunter (D-Monongalia) became the EIM chairman. There is no better friend to the environment than Senator Hunter. And Senator Sharpe is reportedly recovering nicely. The Good, the Bad, and the Ugly Before the session I also cautioned that "good environmental legislation will still face an uphill battle in both Houses." That was certainly the case this year. This Legislature passed some good bills, killed some good bills, and killed some very bad bills. Here is the rundown: The Legislature passed SCR 15, WVEC’s resolution requiring the Department of Environmental Protection to study the contents of coal slurry and the impacts on groundwater from disposing of it by injection into abandoned coal mine seams. As amended, the resolution also requires the Bureau of Public Health to consult with DEP on the design of the study, and to review the results for the potential of impacting the health of coalfield residents. This is a great outcome for an issue that WVEC guided through several months of Interim Committee meetings. The Legislature also passed: SB 337, DEP’s greenhouse gas inventory bill; SB 460, a bill that provides further protections in State Forests from oil and gas drilling operations; SB 177, that creates a Division of Energy for developing a comprehensive energy plan for WV; SB 441, that made the tax treatment for commercial wind power projects more equitable; and HCR 48 that authorizes an Interim Study on funding for land conservation in the state. Sometimes It’s Good To "Kill" a Bill WVEC, along with activists from the early "Garbage Wars" days and WV Citizen Action Group, helped kill two terrible solid waste bills: SB 629 that would have authorized a huge mega-landfill in McDowell County; and SB 701 that would have abolished the state Solid Waste Management Board and county Solid Waste Control Authorities, and consolidated that control of solid waste management into the hands of the DEP. We also helped kill SCR 29, a truly terrible anti-wilderness resolution that is introduced annually by Senator Karen Facemyer (R-Jackson). The resolution was never brought up in committee. Other bills that died deserving deaths included SB 450, a DEP proposal to divert money from the coal Special Reclamation Fund for watershed improvement projects; SB 469, a bad Chamber of Commerce proposal to streamline the construction of new power plants before they receive the necessary air pollution control permits; SB 552, another bad DEP idea that would have changed the way water pollution permits for coal and oil and gas activities are approved; and SB 683 that would have allowed drilling new oil and gas wells in state parks. Sometime It’s Good To Amend a Bill WVEC worked with legislative staff and DNR officials to improve the language in SB 396, so that the bill protects rare, threatened, and endangered species from collectors and poachers, while still allowing researchers and concerned conservation groups to continue to have access to site-specific data necessary for protection of those species. The amended bill was approved by both Houses. Good Bills That Died Unfortunately, two of the best ideas for the environment to come along in recent years failed to advance again this year. SB 118, the WV Public Campaign Financing Act, was once again killed in the Senate Finance Committee when the chairman of the committee, Senator Walt Helmick (D-Pocahontas), refused to allow the committee to consider the legislation. The House bill, HB 2371, was also never advanced in committee. Campaign finance reform is the one reform that makes all other reforms possible. Likewise, the "Bottle Bill" (SB 370 and HB 2773) was never taken up for consideration by committee in either house for yet another year. This legislation would establish a deposit and refund program for beverage containers. No matter how hard and intelligently Linda Frame from WV CAG lobbies this bill, legislators cannot find enough gumption to buck the powerful lobbies from the beer and soft drink bottling industries to even run this bill. WVEC’s own proposal for the Bureau of Public Health to conduct a "Public Health Impact Assessment" whenever DEP proposes changes in air and water pollution standards (SB 558 and HB 3150) also did not advance through committee. However, we did succeed this year in getting the bill introduced in the House. Other good ideas that did not see the light of day included: SB 401, requiring Public Service Commission to promulgate additional regulations for wind power projects; SB 509, that would have banned all-terrain vehicles from all paved roads – Senate President Earl Ray Tomblin (D-Logan) killed this one; SB 678 that would have eliminated the tax credit for coalbed methane gas; HB 3104 that would have imposed an additional severance tax on surface mined coal; and HB 3154 that would have increased timber severance taxes. Well, that about covers the ground for the 2007 session of the Legislature – except for the one major policy issue that remains up in the air. For that discussion please see the article on Page 6 concerning the DEP rules and stream protection. By Dennis Cunningham, WVEC Lobbyist This story is an account of an odyssey comparable to the one Homer underwent, and almost as long. I had been working on a Public Health Impact Assessment bill much of the session. After it failed to make it out of committee we decided to resubmit it as a House Concurrent Resolution (HCR) in order to have the issue studied. After getting input from Allan Tweddle, Denise and I put some language together in resolution format. Then I walked it over to the Capitol and brought it to the bill drafting office. My previous experience with this office was very favorable (the actual bill was ready in one day). So expecting this kind of turn-around, I came back the next day to ask about the status of the resolution. The first thing I was told was that it was ready, all it needed was a signature, and it would be ready in 10 minutes. I came back after about ten minutes and was told that it had been sent up to the House Clerk’s office. Wanting to know for sure that it was going through the process step by step, I went to the Clerk’s office. The secretaries started to look through all the resolutions they had, which were already numbered, and said they hadn’t received mine yet. So I went back down to the bill drafting office and told them that the Clerk’s office is saying that they haven’t received it. Then I talked to the person that brought it up there and asked him for the name and office of the person that he gave it to. When I talked to that person, he said someone from the Majority Leader’s office had come down and picked it up. So I went to the Majority Leader’s office where I was told that they had not received it. So I went back to the Clerk’s office and asked who from the Majority Leader’s office had it. Then I went back to find the person who had it — he was in a meeting. When I finally caught up with this person, I was told that everything was fine and that it would be put before the rules committee. Anyway, it is the last week of the session and I’m not that surprised that anything that can go wrong will go wrong. So I’m still suspicious about this recent information because I haven’t seen the resolution in its final form with a resolution number. All of this is taking place over a couple of days while following numerous good and bad bills in both houses and putting out last minute fires. Later in the day, I am approached by an employee of the Dept. of Environmental Protection, who would be affected if this resolution passes, who says, "I’ve been alerted that you are trying to get a study resolution introduced." I was actually kind of shocked to hear this, which shows how naive I am. The mystery continues. When networking after hours another like-minded lobbyist told me, "I’ve been trying to get a resolution introduced and was told that the only person who assigns numbers to resolutions can’t be found." Apparently there is only one person in the entire state government who can assign numbers to bills and resolutions, and that person was sick or something that day. Needless to say, the resolution never passed and if anybody finds it let me know. Stream Protection Remains Up In the Air By Donald S. Garvin, Jr., Perhaps the most controversial environmental issue of the legislative session – how many West Virginia rivers and streams would be placed on the Tier 2.5 list to protect them from degradation by polluters – is still up in the air. Here’s the explanation, which I will attempt to keep as brief as possible. In the House of Delegates, all of the DEP agency rules were placed into a rule bundle, HB 2601. All of the rules in that bundle, including the Tier 2.5 stream list, were approved by the House Judiciary Committee as proposed by DEP. In the Senate, the Judiciary Committee considered most, but not all, of the DEP proposed rules individually. The committee accepted an amendment to SB 255, the antidegradation rule, that would have reduced the number of Tier 2.5 streams from the proposed 309 streams down to just 38 streams. However, since the House Judiciary Committee had already passed its DEP rules bundle, the Senate Judiciary Committee simply deferred any further action on the rules. Meanwhile, behind the scene back on the House side, Speaker Richard Thompson (D-Wayne) and House Judiciary Committee chairperson Carrie Webster (D-Kanawha), convened a series of meetings between the various stakeholders in an effort to reach a compromise on the number of streams on the Tier 2.5 stream list. Participating in those discussions were several DEP officials including DEP Cabinet Secretary Stephanie Timmermeyer, several key members of the House Judiciary Committee, a wall of industry lobbyists, the Speaker himself, and Norm Steenstra and myself representing environmental organizations. Before going any further, I want to make it clear who the "wall of industry lobbyists" represents. They dubbed themselves the "Antidegradation Coalition," and they have been fighting against the state having an antidegradation implementation plan for the last six years. They are the lobbyists for the WV Farm Bureau, the WV Timber Association, the WV Chamber of Commerce, the WV Manufacturer’s Association, the WV Coal Association, the WV Oil and Natural Gas Association, and the WV Independent Oil and Gas Association, among others. The major compromise that was offered in the negotiation sessions came from Secretary Timmermeyer and it would have reduced the number of Tier 2.5 streams from 309 down to 156, a number that protected most of the native brook trout streams on the list that were located on public lands. However, the industry lobbyists refused to budge from the 38 streams that they got the amendment for over in the Senate, an amendment that was overwhelmingly defeated in House Judiciary Committee. Therefore, facing the very real possibility that the stream list would be gutted by amendments proposed by industry lobbyists on the House floor, House leaders and DEP Cabinet Secretary Stephanie Timmermeyer ultimately decided not to advance the rule bundle to the floor for a vote. So here’s the situation as it now stands at the end of the session. DEP filed the proposed rules with the Secretary of State last year. If the Legislature does not act on the rules (which they did not), according to state law the rules filed by DEP will go into effect. And even though last year the Legislature passed a bill requiring the Tier 2.5 stream list to be approved by the full Legislature, Secretary Timmermeyer believes that legislation is unconstitutional based on separation of power issues. In press reports, Secretary Timmermeyer has indicated that since the Legislature did not act there are now 309 new streams on the Tier 2.5 list and that DEP will manage those streams and issue permits on that basis. She is basically telling industry that if they don’t like it, they can take the agency to court. Representatives from the Governor’s office have basically made similar comments to the press. Finally, all last week during the Budget Session there were rumors and press reports that the Governor would call a Special Session to deal with all the DEP rules. Industry reportedly was still lobbying for some sort of a compromise with DEP and the Governor (WVEC was not involved in any such discussions). No Special Session was called for these rules. Obviously, it may be quite some time before we finally know just how many streams will receive Tier 2.5 protection status. And that number may be decided by the courts, and not by the Legislature. |
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