WVEC Green Legislative Update

To 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 1, 2008

• Under the Dome
• Open For Garbage
• Good Bye, Tier 2.5?
• Mountaintop Removal Foes, Supporters Speak
• Not-so Shameless Plea
• You Say You Want a Res-o-lu-tion
• Bottle Bill Update
• House and Senate Bills We Are Tracking (as of 3/01/08)

Under the Dome

By Donald S. Garvin, Jr.
WVEC Legislative Coordinator

Our good friend Perry Bryant, long-time progressive lobbyist at the capitol, sent out his legislative update this week to West Virginians for Affordable Health Care with the following header:

"Opening the process at DHHR (Medicaid) is referred to two committees in the Senate, data-mining bill dies, removal of soft drinks in school dies, and the Senate is considering a way to substantially reduce health care costs for a select group of West Virginians — legislators."

That sums up the way things are going for environmental issues as well.

I began this session feeling fairly upbeat about our legislative agenda. With less than two weeks remaining, all that has changed and things are looking pretty gloomy.

The Tier 2.5 stream list in the Antidegradation Implementation Rule was gutted by three Senate committees, down to just 108 streams – and then the Tier 2.5 category itself was eliminated by a vote of the full Senate. In addition, the coal boys have managed to get the new list of trout streams removed from the Water Quality Standards Rule.

A bill that would help make a mega-dump out of the McDowell County landfill (SB 770) sprung to life on the final day that bills could be introduced, and was passed on the fast track by the Senate.

We have managed to get some improvements to HB 4438, the "mysterious blue haze" bill that would "streamline" air pollution permits and actually allow construction to begin before all the permits are received for new "minor sources" of air pollution. But, as I said last week, it is the very concept of HB 4438 that is bad public policy in the first place, and it, too, has been fast-tracked for passage in the House.

Once again both the Bottle Bill and the Clean Elections Bill – for the umpteenth year in a row – will languish without being advanced by committees. On E-Day, the Clean Elections bill actually appeared on the House Judiciary Committee agenda for about four hours before it was removed! I still haven’t figured that one out.

And to round things out, not one of the half a dozen or so renewable energy or energy conservation bills we have supported this session has even been taken up for consideration by any committee. Meanwhile, AEP yesterday asked the state Public Service Commission for a 17 percent rate increase.

Contrast all this to another piece of email I received this week from Conni Lewis, also a long-time progressive lobbyist at the capitol, including several stints on the WVEC Lobby Team.

Conni is also an active member of the American Friends Service Committee and she passed on this legislative update from the "Friends" group in the State of Washington:

"This past Tuesday, February 19th, was the last day for legislation to pass either the state House or Senate. We’re happy to report that each of the four Priorities for a Healthy Washington has made it over this hurdle . . .

• Climate Action and Green Jobs passed the House, 64 – 31.
• Local Solutions to Global Warming passed the Senate, 31 – 17.
• Evergreen Cities passed the House, 73 – 22.
• Local Farms – Healthy Kids passed the House, 95 -1; the Senate passed companion legislation, 48 – 0."

Well it’s obvious immediately that the legislature in the State of Washington is on a different planet than the legislature here. They actually seem to have a plan; they actually seem to have a progressive environmental agenda endorsed by their legislative leadership.

Or perhaps they even have a progressive environmental agenda sponsored by their Governor! Imagine that!

Conni’s wistful comment was, "We can only dream."

Yes, Conni, we can only dream.

Our fine-feathered friends are getting ready to nest, so remember to keep your bird feeders full this week.

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Open For Garbage

By John Christensen, WVEC Lobby Team

Action Alert: House Finance Committee chairman Harry Keith White has granted our request for a public hearing on SB 770. The hearing is scheduled for 9:30 A.M. on Monday, March 3 and will be held in the House Chamber.

Just when you thought we might get through the session without having to deal with a garbage bill, we get three on the last day to introduce bills (Feb. 18). SB 703, SB 727, and SB 770 are utilizing a different strategy to un-do our nationally recognized solid waste laws. They all bear the title "reduced solid waste assessment fee", which sounds almost palatable until you read the details.

SB 770 is the active bill, and the one that we are concerned about.

The premise of this bill is to reduce landfill tipping fees statewide, once the amount of garbage collected state-wide reaches 570,000 tons per month during a three month period.

The only way this can be accomplished is by boosting the garbage tonnage at the McDowell Landfill and force the state to consider making it a mega-landfill, lifting the cap from 50,000 tons a months to 100,000 tons a month.

The provisions of this bill will primarily benefit one private landfill operator, waste haulers, some municipalities and the McDowell county budget.

And, if the bill is passed as is, the tipping fees will remain at the reduced rate, even if McDowell Landfill garbage collection decreases in the future.

The only incentive contained in this bill is to produce more garbage, and the bill is a disincentive to West Virginia's recycling efforts.

The bill would be administered by our understaffed DEP. The bill does nothing to promote recycling, actually reduces recycling dollars by thousands per year unless we bring in MORE garbage. This is not a good deal for WV citizens.

It also hurts the LCAP program, which helps county solid waste authorities close old landfills in an environmentally safe manner and provide perpetual monitoring, by reducing the funding for that program. Currently only ten million dollars are in that account. When a landfill must be closed, the host county commission will have to make up the difference in the event of a shortfall.

And remember folks, once our WV code is opened for some special interest idea like this, the protective tonnage caps will be in jeopardy statewide.

Where will all this garbage come from? It's no secret - it will come from New York, New Jersey and Philadelphia, thousands of trainloads of plastic-cubed garbage from the east's biggests cities direct to McDowell County.

Senator Truman Chafin (D-Mingo) is SB 770's lead and only sponsor. Chafin has stated publicly that he will come back to the legislature in the future to ask for lifting the cap at McDowell.

The bill breezed through the senate, and will next be dealt with in the House Finance Committee.

This bill is nothing more than a classic case of "Bait and Switch" - citizens will be lured by lower garbage fees in return for higher tonnages and lifting of caps in the future. This bill should be killed.

Ask your all your House of Delegate members to oppose SB 770. Contact them by phone or e-mail - or better yet, come to the Public Hearing on Monday.

Let your voice be heard - West Virginia is not "Open for Garbage".

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Good Bye, Tier 2.5?

By Donald S. Garvin, Jr.
WVEC Legislative Coordinator

In a surprising turn of events late this week, both the Senate and the House Judiciary Committee actually eliminated the "Tier 2.5" category from the Antidegradation Implementation Rule.

You heard me right, folks. Tier 2.5 is gone, and there is now a new definition of Tier 3 that was adopted by House Judiciary.

Under the House language, Tier 3 streams are now "all Federally designated rivers under the ‘Wild and Scenic Rivers Act’, 16 U.S.C. #1271 et seq.; all streams and other bodies of water in state parks and forests, waters in national parks and forests and waters designated under the ‘National Parks and Recreation Act of 1978’ as amended; and pursuant to subsection 7.1. of 60CSR5, those waters whose unique character, ecological or recreational value, or pristine nature constitutes a valuable national or state resource."

The Tier 2.5 category is now gone in both the Antideg rule and the Water Quality rule, and the new Tier 3 definition was put into both rules. In addition, the additional trout streams that DEP had included in the updated B2 list were removed, leaving the definition of "trout waters" in tact, along with the old list of B2 streams.

My instant analysis is this: all streams on public lands in WV would now be Tier 3 automatically. Streams on private lands could be nominated for Tier 3 designation. And there will be no tier lists for the legislature to approve!

Just so everyone knows how we got to where we are, here is a brief re-cap:

Last year, DEP proposed 309 Tier 2.5 streams in the Antideg rule. A Senate Committee cut that to 38 streams. House Judiciary kept it at 309. The Speaker of the House and DEP Cabinet Secretary Stephanie Timmermeyer proposed 156 streams as a compromise, but lobbyists for the Farm Bureau, etal, wouldn’t take it. The Speaker withheld the rule for final passage and none of the DEP rules passed. Timmermeyer said she would file the rules as "finalized" with the Secretary of State’s office (since the legislature did not act), but she did not.

This year, DEP proposed 156 Tier 2.5 streams (the compromise from last year). Just prior to the regular legislative session, the Interim Joint Legislative Rule-Making Review Committee restored the list to 309 streams.

Last week the Senate Natural Resources Committee amended the Antideg rule to include just 108 streams (a Farm Bureau proposed number). This week, Senate Finance Committee defeated an amendment to restore the list to 156 streams, and adopted the Natural Resources amendment (108 streams).

Then Senate Judiciary Committee voted to accept the amendments reducing the list to 108 streams. Also, after a bunch of whining from the coal lobbyists, the Judiciary Committee voted to remove the additional trout streams that DEP had included in the updated B2 list (leaving the definition of "trout waters" in tact, along with the old list in Appendix A).

I think it is fair to say that Senate Judiciary Committee chairman Jeff Kessler (D-Marshall) was furious, because members had assured him they would support at least 156 streams (which obviously didn’t happen). So he reported all the rest of the DEP rules to the Senate floor in a bundle, and reported the Antideg rule and the Water Quality Standards rule separately.

When the rules were sent to the floor of the full Senate, Senator Kessler spoke about how corrupt and unworkable the Tier 2.5 process had become, and offered an amendment that removed entirely the Tier 2.5 category from the Antideg rule. That amendment passed, and the Senate then passed the DEP rules bundle (SB 373), the Water Quality Standards rule (without the additional trout stream list), and the Antideg rule (without a Tier 2.5 category).

That brings us to yesterday, where in a move orchestrated by the Speaker of the House Richard Thompson (D-Wayne) and House Judiciary Committee chair Carrie Webster (D-Kanawha), the House Judiciary Committee amended back into the rules bundle (SB 373) both the Water Quality Standards rule and the Antideg rule, and included the new definition of Tier 3.

So that’s where things stand at this hour. Yesterday was a long day. I was involved in "negotiating" meetings with an increasingly expanding list of lobbyists for the Dirty Water Coalition at 8:30 in the morning, and suffered through it most of the very long day. The new rules bundle was reported to the House floor last night.

For those of you who may not like the new Tier 3 definition, or the removal of the Tier 2.5 category, don’t worry. There’s a week left in the legislative session, and the Dirty Water Coalition boys and girls are already lobbying hard to kill the rules.

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Mountaintop Removal Foes, Supporters Speak

By Phil Kabler,
Charleston Gazette Staff writer

In what could be the swan song of his 12-year legislative career, Sen. Jon Blair Hunter, D-Monongalia, Wednesday (Feb. 27) gave opponents of mountaintop removal mining a rare opportunity to voice their concerns before a legislative committee.

"In 12 years here, I felt people from the coalfields had not had an opportunity to address the Legislature," Hunter said. "I felt it was important as a people’s Legislature to listen to the people."

Wednesday’s public hearing drew an overflow crowd to the traditionally pro-coal Senate Energy, Industry and Mining Committee.

Ostensibly, the debate was over Hunter’s bill (SB588) to effectively prohibit valley fills by coal operations. Realistically, though, the bill had been dead from the moment it was introduced Feb. 6, with Hunter as its sole sponsor.

"I didn’t seem to have a lot of support. I didn’t have any co-sponsors," said Hunter, who is not seeking re-election after three terms in the Senate.

He said he was encouraged that a majority of committee members turned out to hear the testimony of those opposed to mountaintop removal mining. "Hopefully, some of them were as moved as I was," he said.

During the hearing, both supporters and opponents spoke on the bill.

Coal industry representatives stressed the economic impact of banning valley fills. "The economic devastation would be equal to a modern-day Great Depression," said Jason Bostic of the West Virginia Coal Association.

Bob McLusky, a Jackson Kelly attorney who has represented the Coal Association in numerous lawsuits, said Hunter’s bill would not only halt surface mining, but most deep mining as well. "The state will face the largest takings case . . . probably ever filed against a state, for billions of dollars," McLusky warned.

However, the majority of the speakers said there is an environmental, societal and moral imperative to protect the state’s mountains.

Author and former gubernatorial candidate Denise Giardina said that the Appalachian Mountains are among the oldest on earth, which she said makes them one of God’s first creations.

"We, in one generation, are destroying them. Who do we think we are?" she said, pointing a finger at Coal Association representatives in the crowd.

Cindy Rank, with the West Virginia Highlands Conservancy, emphasized the societal price of mountaintop removal mining, naming a number of southern West Virginia communities that have been "obliterated" in the path of mining operations.

"The people in these small communities are worth more than that, and deserve more than that," she said.

Environmental lawyer Joe Lovett said federal Environmental Protection Agency studies have projected that a significant amount of surface mining that would be lost with limits on valley fills would be made up with an increase in underground mining.

"We are losing our mountains forever for that amount of coal in the short term," he said.

Hunter, meanwhile, said he hopes future Legislatures will be able to accomplish what he could not.

"I have been a long-time supporter of coal mining, but not mountaintop removal," he said.

(This article appeared in the Feb. 28 edition of the Charleston Gazette and is reprinted here with their permission).

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Not-so Shameless Plea

With only one week left in this legislative session, the WVEC lobby team is busy working night and day, seven days a week, to represent our members and member groups at the capitol.

We need your continued financial support in order to sustain this effort.

So, please help feed our starving lobby team by sending your pennies, nickels, dimes, and big dollars today! Do it before you forget .... the lobby team appreciates it. Thanks!

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You Say You Want a Res-o-lu-tion

By Vickie Wolfe, WVEC Lobby Team
wolfev@verizon.net

Well, at this point only one of the energy-related bills we were following is still alive. HB 4028, which allows counties and municipalities to enter into contracts for energy savings, passed the House some time ago and has a good chance of getting through the Senate before the final bell tolls.

The ideas contained in several other environmental bills are now being proposed as study resolutions, which means the Joint Committee on Government and Finance studies these things over the next ten months and then makes recommendations as to appropriate legislation for next year’s session.

"Green buildings" will be the subject of one of those resolutions and, to tell the truth, I think this may be a better outcome than having had this year’s bill pass. You may remember that the House version of the green buildings bill would have mandated that new and renovated state buildings be built in such a way as to satisfy the LEED silver standard (the Senate version removed the mandate). Well, it turns out the new DEP building is LEED silver certified, and just this week we met with the guy who oversaw the construction of the building. He told us, among other things, that the U.S. Green Building Council was very difficult to work with, and that after DEP moved into the building in 2004, three more years of negotiating were required before certification was finally granted.

Now, can you imagine how much complaining such a requirement would engender about people who sit in marble buildings and dream up laws that make others’ lives miserable? This gentleman said he thought EPA’s Energy Star certification was a better way to go. We’ve also been studying a "green buildings" bill passed by the North Carolina legislature last year, and I think that if next year’s bill adds some other things like water conservation and accountability language on top of Energy Star, we’ll end up with a better "green buildings" bill than we would have had this year. But I digress.

Another proposed resolution would result in a study of the effect of climate change on the Mountain State, and a plan for mitigation thereof. Still another one would focus on solid waste, including the proposals of the "bottle bill" and the bill that would have banned plastic shopping bags. Another resolution proposes a study of the staffing and enforcement performance of DEP, and yet another will propose studying in general the economic impacts of coal mining in West Virginia, and mountaintop removal mining in particular.

So let’s stay optimistic that these studies will result in more and better environmental legislation for next year, and maybe some of it will even pass . . .

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Bottle Bill Update

By Linda Frame, WV Citizen Action Group
linda@wvcag.org

While this year's bill does not sit on the governor's desk awaiting his signature, we did keep the issue alive and in the news. We received several newspaper endorsements again this year, several hits on the always-informative Reader's Vent line in the Charleston Gazette (I say if you make it to the vent line, then Joe Citizen is paying attention), met with the governor and his staff - as well as leadership in both Houses, and raised public awareness.

One of the most enjoyable parts for me this session was watching the involvement of the Student Environmental Action Coalition (SEAC) and members.They are taking it to the streets themselves - setting up recycling programs on campus, calling and meeting with the governor, and starting petition drives. What great new energy to our efforts!

I get many calls each week from citizens who want to help make the Bottle Bill a law in West Virginia. People don't just call to find out more - they call to find out what they can do. When you're going up against industry that can spend thousands of dollars on perks for legislators (it's a drop in their budget bucket) you have to be in it for the long haul. Only with this continual growing grassroots support will we be able to match the staying power of big money and access to fight our efforts. Thank you!

Our key event of the session was the visit by John Ferrari to present the basics of the California deposit law. By using the format of a Joint Judiciary and Finance Committee meeting, legislators had the chance to ask questions and learn more about our bill - contributing to taking the "fear" out of changing the status quo and let legislators know that this concept works - and businesses can make money under this law.

A serious study during the interims would be a big step and a way to continue to educate legislators on why this concept makes so much sense. It already works in so many places. I'll keep you posted on post-session news.

Please remember to call Governor Manchin and ask him to support the Bottle Bill. He needs to keep hearing from citizens, and has told us he supports the concept. We need to remind him that citizens do too!

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House and Senate Bills We Are Tracking (as of 3/01/08) (click to view pdf)

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