Coal Tattoo


Lawmakers are back in town here in West Virginia’s Capital City, for their inevitable special session — required because they’re too busy scarfing down Tudor’s biscuits to get a budget passed or to make sure they don’t write legislation for state agencies that haven’t existed for years.

Coal Tattoo readers should know there are two bills likely to resurface that affect the mining industry and — at least as written — don’t help West Virginia move as far as it could toward clean energy and green jobs. Both bills are proposals from Gov. Joe Manchin.

First, there’s SB 375, Manchin’s post-mining land use legislation. This bill passed the Senate, but died in the House on the last night of the regular session.

I’ve written before that I didn’t really understand the need for or purpose of this bill. Existing law requires mountaintop removal mine operators to develop flattened last after they blow up hilltops and bury streams. The problem is state regulators have just never enforced that requirement.

But several folks who have taken a closer look at that bill  pointed out language that might explain things. It’s this proposed language to create a new section at W.Va. Code 22-3-10(a)(3)(c) that would say:

By complying with a master land use plan that has been approved in accordance with article two-a, chapter five-b of this code, a post-mining land use satisfies the requirements for an alternative post-mining land use and satisfies the variance requirements set forth in subsection (c), section thirteen, article three, chapter twenty-two of this code if applicable to the proposed use;

What’s that mean? Well, it is referring back to W.Va. Code 22-3-13(c), which is the requirement that companies receiving approximate original contour, or AOC, reclamation variances must propose plans to develop their flattened land.  This is the basic social compact that allowed mountaintop removal: Congress decided to allow this devastating form of mining, if companies were going to leave behind factories or shopping malls, schools or community centers — some kind of development to help local communities once the coal was mines.  But this social compact has been broken, by the lack of enforcement of these provisions by both state and federal regulators.

Now, Manchin’s bill is all mostly about requiring local communities in the coalfields to write land-use master plans. The idea is that these plans would then be used to work with mining companies to develop mined lands. My main question so far about this was why put this pressure for development on local communities, instead of on the coal operators — where Congress said it should be?

But if you look at this language in Manchin’s bill, you have to wonder if it’s not a get-out-of-development card for mine operators. Under this bill, mine operators are considered in compliance with the post-mining development provisions of the strip-mining law, as long as whatever post-mining land use they propose complies with the local land-use master plan. What if the local land-use master plan doesn’t require the kind of development that the federal strip-mining law mandates? Under this bill, this would be fine.

I have to wonder if the federal Office of Surface Mining would approve this language.

Next, there’s SB 297, Manchin’s big energy bill.  We thought this bill passed, but as The Associated Press reports, a slip-up led some of its House amendments to not be included in the version that went back to the Senate for final approval. So it’s likely to be back.

Manchin is rightly proud of his proposal to require utilities to met 25 percent of their electricity with renewable energy by 2025.

(It’s worth noting here that the American Clean Energy and Security Act that has passed a House Committee includes a renewable standard.  But, there are questions emerging about how good the language in that bill really is. Read more here, here, here and here).

But as I’ve written before (see here, here  and here) the problem with Manchin’s bill is this list of fuels that qualify as “alternative” and could be used by utilities to meet Manchin’s “renewable” standard (I love the last one — talk about broad language):

(1) Advanced coal technology;
(2) Coal bed methane;
(3) Natural gas;
(4) Fuel produced by a coal gasification or liquefaction facility;
(5) Synthetic gas;
(6) Integrated gasification combined cycle technologies;
(7) Waste coal;
(8) Tire-derived fuel;
(9) Pumped storage hydroelectric projects;
(10) Nuclear energy; or
(11) Any other resource, method, project or technology certified as an alternative energy resource by the Public Service Commission.

Don Garvin, lead lobbyist for the West Virginia Environmental Council, has written of this bill:

By including all of these sources as “alternative” energy, SB 297 undermines the goals and justification for a bill in the first place – to reduce carbon dioxide emissions – and it creates a system that puts West Virginia completely out of step with every other state in the country.