Sustained Outrage

M. Blane Michael, 1943-2011

Word came on Friday that Judge M. Blane Michael, one of two judges from West Virginia who sits on the U.S. Court of Appeals for the 4th Circuit, had passed away. Judge Michael served on the 4th Circuit for more than 17 years.

Judge Michael was only the second occupant of seat nine on the court, which was created in 1978 and has always been held by a judge from West Virginia, with its duty station located in Charleston.

Others, including his old friend, Sen. Jay Rockefeller (D-W.Va.), have recalled his prodigious gifts as a lawyer and jurist, as well as his affability and warmth.

“Unvarnished in his honesty, uncanny in his humor and unequaled in his humility, Blane was a formidable presence on the federal bench, with a moral and intellectual compass set hard for justice,” Rockefeller said in a statement. “He was a brilliant judge who never took for granted the power and the responsibility of deciding the cases that impacted people’s lives or righted serious wrongs.”

I didn’t know Judge Michael well, but on those rare occasions when our paths crossed, I found him charming and unassuming, with a lively intellect that stretched far beyond the law.

But even as we recall what a personable and admirable man Judge Michael was, we should not overlook his stature as a judge, which is hard to overstate. It’s worth remembering that in 2005, when asked by the Bush administration, West Virginia Sen. Robert C. Byrd recommended Judge Michael to fill the vacancy on the U.S. Supreme Court after Chief Justice William Rehnquist died.

Through his opinions, he was a powerful voice, not just for West Virginia, but for the entire nation, as he served with distinction on one of the most carefully watched and influential courts in the country.

Over the years, my colleague Ken Ward has noted Judge Michael’s impact several times over on Coal Tattoo. Below are two samples of Michael’s clear and forceful writing, which do not even begin to do justice to the judge’s legacy.

Dissenting from the 4th Circuit’s decision not to rehear a case involving a mountaintop removal permit:

I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether the U.S. Army Corps of Engineers erred in approving permits that allow surface mining overburden to be placed into headwater streams, eliminating the streams and adjacent valleys. I recognize that it is not our role to second-guess the expertise of a regulatory agency, but we must nevertheless ensure that the Corps fulfills its duties under controlling law. In this case, the Corps has simply failed to do its job.

In the context of mountaintop removal mining, the Corps’ § 404(b) dredge and fill regulations require the agency to assess the “nature and degree of effect” that discharges of mining overburden into headwater streams will have “on the structure and function of the aquatic ecosystem and organisms.” 40 C.F.R. § 230.11(e) (2006). At a minimum, the regulations require some assessment of both stream structure and stream function. The Corps’ failure to assess stream function in this case and its later claim that an assessment of stream structure provides an adequate substitute cannot amount to a permissible construction of the regulations.

The ecological impact of filling headwater streams with mining overburden is both profound and irreversible. As the Corps itself acknowledges, “[i]t is well understood that the health of entire watersheds [is] dependent on functions provided by headwater streams.” J.A. 1823 (Black Castle combined decision document). The Corps goes on to explain that headwater streams provide a number of “important functions” including maintenance of natural discharge regimes, regulation of sediment export, retention of nutrients, processing of terrestrial organic matter, and exportation of water nutrients and organic matter to downstream areas. Id. The Corps does not credibly claim to have measured these functions for the permits at issue in this case.

Because the long-term environmental impacts of destroying headwater streams are not yet fully understood, permitting the filling of these streams without requiring the Corps to comply with its clear duty to assess functional impacts fatally undercuts the purpose of the regulations. The Corps’ Clean Water Act regulations require the agency to certify that any discharge of fill material will not cause or contribute to “significant degradation of the waters of the United States.” 40 C.F.R. § 230.10(c) (2006). Without the information provided by a functional assessment, the Corps cannot make that determination. No permit should issue until the Corps fulfills each distinct obligation under the controlling regulations. And this court should not defer to the Corps until the agency has done its job.

And another powerful dissent, discussed by Ken here, in another mountaintop removal case:

Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions. Further, the cumulative effects of the permitted fill activities on local streams and watersheds are considerable. By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. We should rescind the four permits at issue in this case until the Corps complies with the clear mandates of the regulations. First, the Corps must adequately determine the effect that the valley fills will have on the function of the aquatic ecosystem. Second, based on this determination, the Corps must certify that the fills, after mitigation is taken into account, will result in no significant degradation of waters of the United States and no significant adverse impact to the human environment.

Here is Judge Michael delivering the 2009 James Madison Lecture at his alma mater, New York University’s School of Law.

Charleston’s brain gain?

Richard Florida published an interesting piece, “Where the Brains Are Going,” over at The Atlantic this week, which noted that several aging Rustbelt cities have apparently started gaining adults with college degrees after previously experiencing losses, or a so-called “brain drain.”

Florida explains:

Cities and regions across America and the world have made significant efforts to attract and retain young college graduates over the past decade or so. This has been driven by growing awareness that the ability to attract human capital, as well the ability to attract companies, plays a key role in economic competitiveness. And since young adults are the most mobile members of the population — people in their mid-20s are three to five times more likely to move than middle aged folks — the ability to attract them early in life can pay big, lasting dividends.

A new study by Brookings demographer William Frey examines trends in the migration decisions of young adults and college grads (as separate groups) over the years 2007-2009. His findings are especially interesting and relevant, since they cover the period since the onset of the economic crisis and reset.

The economic crisis has caused a significant decline in migration, with the mobility of Americans hitting record lows. Young adults and college graduates are no exception, Frey finds, with a growing number of them staying put or moving back with their parents. That said, the mobility of both college grads and young adults remains considerably higher than for Americans as a whole, according to Frey’s analysis.

Frey’s study, which provides a broader view, notes that overall migration has declined to its lowest rate since America began tracking it in 1948.

While there is some debate about how accurately the survey documents the timing of this decline, there is no doubt that the last three years have seen a plateau in migration for interstate moves and, in fact, total moves.

The stall has affected college graduates and young adults—groups usually among the most mobile and coveted—which tend to be the lifeblood of the labor force and responsive to shifts in national job networks. Between 2008 and 2010, the annual interstate migration of this group fell to 2.1 percent, well below the levels of 3 percent and above earlier this decade and in the 1990s. This is indicative of young adults encountering a brutal job market, as many double up or remain at home with their parents or other families. The annual migration rate for adults aged 25 to 29 fell to 3.2 percent in 2009–2010, also an historic low point for this usually highly mobile group.

Consequently, according to Frey, big cities like New York, Boston, Los Angeles and Chicago have seen a reduction in their losses of college educated adults, while cities like Pittsburgh, Columbus and Baltimore have actually seen losses become gains.

This got me thinking: What about Charleston? The Charleston Area Alliance launched Generation Charleston in 2006, an initiative that, according to their website, “strives to attract and retain young professionals to the region, while focusing on fostering the next generation of leadership. Young talent is the future intellectual capital of any economy, and the Charleston Area Alliance is committed to creating both an economy and community that is and will be attractive to this group of professionals.”

I’m not quite sure how Frey calculated his migration figures, so I’m going to use a much clumsier metric. Using information from the U.S. Census Bureau’s American Community Survey, specifically, the “educational attainment” data, I compared figures from the years 2005-2007 and 2007-2009, the same periods Frey used.

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State Police settle with Roger Wolfe

State Police patchThe West Virginia State Police have agreed to pay Charleston attorney Roger A. Wolfe $200,001.01 to settle his lawsuit over an alleged beating that occurred in the South Charleston barracks while Wolfe was in custody.

Wolfe maintained that on June 17, 2007, following his DUI arrest, two troopers took him to a small room and beat him (with his hands cuffed behind his back) so badly that cranial fluid came out of his nose. While offering slightly differing accounts of how it happened, the troopers suggested that Wolfe became belligerent and lunged at Paul A. Green, who was forced to sweep Wolfe’s legs out from under him to prevent a head-butt.

wolfemugshot.jpgIn any event, Wolfe ended up requiring treatment at Thomas Memorial Hospital. Although he was treated and released that night (and arraigned and jailed; that’s his mugshot to the left), Wolfe later spent six days in the hospital.

The settlement covers all of the troopers that Wolfe said beat him and later covered it up (Green, Jason S. Crane, Kristy L. Layne and John K. Rapp Jr.). It also covers former superintendent D.L. Lemmon, three unnamed troopers and the agency itself. (Court documents indicate that Wolfe wanted to depose troopers L.W. Price, J.T. Portillo and D.O. Bennett, who were reportedly in the barracks at the time of the alleged beating.)

According to filings in the civil case, all seven of the troopers testified in front of a federal grand jury convened in June or July 2008 as part of a criminal inquiry into the alleged beating. The U.S. Attorney’s Office routinely refuses to confirm or deny the existence of a grand jury investigation, and to date, no criminal charges have been filed in the matter.

(Read previous posts related to Wolfe’s lawsuit here, here and here.)

You can read more about this in tomorrow’s Gazette.

Updated: Here is a link to the Gazette‘s story on the settlement.

Metro government: There’s no one size fits all

Bruce Katz is something of an expert on metro government. He is vice president and director of the Metropolitan Policy Program at the Brookings Institute, where much study of the nation’s brucekatz.jpgmetropolitan areas is done. During a recent chat, I asked him if he had any advice for a community, such as Kanawha County, where residents are considering whether to form a metro government. Katz (pictured) warns that reorganizing local government is difficult, but more people are finding it worth the trouble.

“Nothing comes easily in this area,” Katz said. “The fact remains that more and more places feel a need to change. They’re realizing that business as usual, with everyone going their own way, leads to paralysis.”Municipalities spend a lot of time competing against each other. “

While it’s true that merging governments does not increase the population or make the workforce any more skilled, a cohesive regional government is frequently associated with a better job market, he said.

“The literature is still divided on whether consolidated government leads to a better economy, but there is tantalizing evidence that it may be so. The intuition is that greater cohesion in government might be a economic value.

“It’s not as immediately sexy as an effort to land a particular manufacturer, but over time, it may be the most important thing.

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Metro government: What about the user fee?

Could metro government mean the end of Charleston’s user fee?

Very possibly.

At a July reception, representatives of various governments in Kanawha County had a chance to ask Louisville, Ky., Mayor Jerry Abramson how his community handled various problems when merging city and county governments in 2000.

Charleston City Manager David Molgaard, for example, asked about Charleston’s user fee, a $2 weekly deduction from every paycheck in the city.

If county residents formed a county-wide council, it could easily “vote the user fee out of existence,” Molgaard said.

“You may have to restructure your finances,” Abramson said. “You can let that kill it [metro government], or you can noodle on it a bit.”

The goal, Abramson said, is to identify everyone’s needs and concerns, and then address them. If the rest of the county would not support that fee, then the new government should be designed without it.

Meanwhile, at a recent meeting of Charleston’s Metro Government Committee, city council members were told that the fees city residents pay for certain services, such as garbage and fire protection, do not completely cover the costs of those services.

Garbage service, for example, costs $1.6 million more than Charleston residents pay in city refuse fees. The city uses tax money to make up the difference.

That means, if a community next door to Charleston wanted to pay to engage the city’s services, it would not be simply a matter of charging current fees of those new customers.

Metro government: Watch the forum

You can watch the July 8 forum on metro government featuring Louisville Mayor Jerry Abramson. A video recording of the event is at the Kanawha County Commission’s Web site:

Part 1

Includes an overview of Louisville’s experience by Jerry Abramson. About 33 minutes.

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Metro government: Interest in Harrison County

ron_watson.jpgHarrison County Commissioner Ron Watson has been keeping an eye on Kanawha County’s metro government discussion.

He grew up at Lost Creek in Harrison County, but he worked for more than 20 years for the consolidated government of Jacksonville, Fla.

“I have some knowledge of the good, the bad and the ugly of consolidated government,” he said.

Clarksburg has about 16,000 people, but used to be a major city in the state with 30,000 people. Bridgeport is an energetic, up and coming city of about 8,000, he said. But all the municipalities compete and squabble with each other to annex developing bits of the county, which doesn’t seem like much of a growth plan to Watson.

“I love what Kent Carper and Kanawha County Commission did, by going to the Legislature and getting the opportunity to put it on a ballot, they can let the people choose what they want.

“I’m going to follow them very carefully and closely as they go through the process.”

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Metro government: Where are specifics?

One good question that keeps coming up in discussion of metro government is exactly how would county residents save money on the functions of government, how much and in what categories?

The short answer is nobody knows because the committee that is responsible for figuring it out hasn’t been formed yet.

Nor will it be formed unless Charleston and Kanawha residents agree that they want to consider forming a consolidated government. That can be done either through a petition or by resolutions passed by Charleston City Council and the Kanawha County Commission.

I asked Jennifer Sayre, deputy county manager, when residents could expect to get more specific details about metro government savings. Here is her response:

When will the cost savings of Metro Government be discussed?

Since the discussion has started regarding Metro Government in Kanawha County and the City of Charleston, the number one question that has been asked is how much money will a consolidated government save?  Unfortunately there is no correct answer to this question at this time.  As I have posted before on the Gazette’s Blog, most of the decisions regarding the layout of the consolidated government will not be developed until the Charter Review Committee is appointed.  The Charter Review Committee must be composed of the following based upon statute:

(1) Two government officials or their designees from the Principal City appointed by the governing body of the principal city;
(2) Two County Commissioners or their designees from the affected County appointed by the County Commission;
(3) Two or three public members, including one from an unincorporated area, elected by the other members to make the number of the charter review committee members and odd number.

As you can see, the members of the Charter Review Committee must represent the full population of those being considered in the consolidated government.  Once the Charter Review Committee is appointed, then the Committee has two years to study metro government as the law requires and provide a draft charter for the public to vote on.  The development of this charter will allow for public comment as required by the statute.  The Committee must hold at least three public hearings during its study of metro government and completion of a draft during the two-year allowed period.
The Committee is charged with several duties, which include

(1) The fiscal impact of the proposed consolidation on the affected municipalities, counties and metro governments including:
a. The cost of providing services by the consolidated local government;
b. Projected revenues available to the consolidated local government based upon proposed classifications and tax structures; and
c. Projected economies of scale resulting from consolidation.

Therefore, the Charter Review Committee will take into account the proposed cost and cost savings of a Consolidated Government.  The Committee will be given ample opportunity to study potential cost savings with the Metro Government.  The Committee’s study process and draft Charter will be a public document that may be viewed by the public during its draft period.  The draft Charter will also be discussed in public meetings and the public will have the opportunity to provide input.

As it has been stated, this is a process that will take time and all of the answers will not be given in one single day.  The Charter Review Committee has much more information to study and prepare as part of the Charter, the financial aspect is only one piece.

Metro government: How Brooks McCabe envisions it

Sen. Brooks McCabe has been praised and pilloried on this blog, in the paper and elsewhere for pushing consideration of metro government. We asked McCabe to spell out how he envisions metro government in Kanawha County in as much detail as possible. Here’s what he came up with:

What Is Metro Government, An Example

By Brooks F. McCabe, Jr.

As we discuss the prospect of metro government with Charleston and Kanawha County, certain questions continually arise.  What is the plan?  What does it mean to me?  What are the benefits for the community?  Is it worth the cost?  Trying to answer these questions, even at this mccabe_brooks.jpgearly stage in the process, can be helpful to frame the discussion.

The plan for metro government will be finalized in a proposed charter which will be voted on by the residents of Charleston and Kanawha County.  To pass, it needs a majority vote by those voting within the Charleston city limits and by those outside of the city limits, whether as part of another municipality or from the unincorporated areas of the county.

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Metro government: More answers from Louisville

Remember the Q&A from the metro government forum earlier this month? Some of those questions were directed to Louisville, Ky., Mayor Jerry Abramson. His office has since sent responses to those questions, and Jennifer Sayre, deputy county manager of Kanawha County, passed them on to us:

louisville_kentucky_seal.jpgFrom: Shannon Tivitt, Chief of Staff, Louisville Metro

RE: Questions and Answers

Our staff has researched your questions about merger of city and county government in Louisville and tried to provide helpful answers. Thank you again for the opportunity to share our success story with your community.

  1. Did you/Do you have any smaller communities that refused to merge? If so, what problems?

The merger statute did not dissolve the 80 or so small suburban cities within Louisville Metro. These citizens are part of Louisville Metro, receive city services and pay city taxes as other residents of the former county did.

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