The Charleston Gazette has a long and proud tradition as a crusading newspaper. Our late publisher, W.E. "Ned" Chilton III coined the phrase "sustained outrage" and insisted the Gazette live up to that motto with long-term coverage of important issues facing West Virginia and the nation.
The mission of the "Gazette Watchdog" is simple: To carry on that tradition. We make a commitment to our readers to serve as a public watchdog over government, business, and other powerful entities in West Virginia society, to ensure that the public interest is protected.
West Virginia Governor Earl Ray Tombin, a Democrat, laughs as he delivers his inauguration speech on Monday, Jan. 14, 2013, in Charleston, W.Va. This is Tomblin’s second term in office. AP Photo/Randy Snyder)
Over on the Gazette’s Coal Tattoo blog, we’ve done several pieces about the lack of follow-up actions by the Tomblin administration to enforce West Virginia’s new mine safety law (see here and here).
We also had a story the other day about how the state Department of Environmental Protection is behind schedule in completing studies required of it under West Virginia’s new natural gas drilling law.
What these stories have in common is they involve West Virginia lawmakers passing “reform” legislation aimed at protecting the public, and then agencies charged with implementing those laws not following up to the letter (and sometimes the spirit) of the law. There seems to be a trend here …
Well, West Virginia lawmakers have succeeded in killing off for another year any efforts to fix the huge hole the state Supreme Court — in the name of disgraced former Justice Spike Maynard and his buddy, former Massey Energy CEO Don Blankenship — punched into our state’s Freedom of Information Act.
On Wednesday, the Senate Judiciary Committee voted down a bill that would have overturned that November 2009 ruling the court issued to conceal e-mail messages between Maynard and Blankenship, sent at a time that a huge verdict against Blankenship’s company was headed for a court appeal. Sen. Evan Jenkins, D-Cabell, explained his opposition to the legislation this way:
The state Supreme Court said our definition is clear and unambiguous. The court itself said we don’t need more clarification, and we are following the viewpoint of most other jurisdictions.
Actually, the meaning of our FOIA in this regard used to be pretty clear … until the Supreme Court’s Maynard-Blankenship ruling was issued. The definition of a “public record” in the statute isn’t that hard to understand:
“Public record” includes any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body.
As I’ve explained before on this blog, the problem is that Justice Robin Davis ignored that and dug through some federal case law to make up a different way of defining the term that would allow the Maynard-Blankenship emails to be kept secret. To get there, Justice Davis had to blatantly mischaracterize some of the emails that had already been released to The Associated Press, which had sued to get the rest of the correspondence. She ended up with this new point of law:
A trial court’s determination of whether personal e-mail communication by a public official or employee is a public record, subject to disclosure under the West Virginia Freedom of Information Act, W. Va. Code § 29B-1-1, et seq. is restricted to an analysis of the content of the e-mail and does not extend to a context-driven analysis because of public interest in the record.
Under that language, the context of the email discussion between Maynard and Blankenship — the heat of a political campaign, the impending appeal of a major case against Blankenship’s company, comments Maynard made defending Massey’s operation of a mine where two workers had recently died — could not be part of the consideration when deciding if the e-mails could be released. The context of a sitting Supreme Court justice having such discussions with the CEO of a major litigant on the eve of important court hearings would not be considered — ignoring the public’s a right to know if such blatant conflicts of interest are at work in our judicial system.
In the case at hand, a Justice sitting on the West Virginia Supreme Court of Appeals communicated by e-mail on a somewhat regular basis with a friend who was the Chairman and CEO of a party litigant with a case pending before the Court. With one exception, the literal content of those e-mails did not contain information relating to the conduct of public business.
The fact that those e-mails had been sent, however, did contain relevant information.
First and foremost, it discloses the existence of a personal relationship between a sitting Justice and a CEO of a party litigant. In addition, when the AP made its first FOIA request, a motion filed by the Plaintiffs in Caperton seeking Justice Maynard’s recusal from that case was pending, the basis of which was his personal relationship with Mr. Blankenship.
The fact that the e-mails were sent, albeit on issues unrelated to matters pending before this court, is clearly relevant to the relationship between Justice Maynard and Mr. Blankenship.
Because that relationship was the basis of a motion for recusal, the relationship was itself related to Justice Maynard’s conduct of the public’s business.
The legislation here, sponsored by Delegate Barbara Fleischauer and a host of House leaders, is really very, very simple. HB 2402 simply modifies the definition of “public record” this way:
“Public record” includes any writing containing information relatingprepared or received by a public body, the content or context of which, judged either by its content or context relates to the conduct of the public’s business. prepared, owned and retained by a public body;
I was a little disappointed that we didn’t pass that bill, which I think would have provided for more transparent government. And if the committee wasn’t willing to support that, I at least want to take a look at doing it next year.
Perhaps Sen. Palumbo will arrange to have the lawyers who represented The Associated Press — along with the various media and good-government groups that filed friend-of-the-court briefs in support of the AP — come and explain this issue so everyone involved understands it more clearly.
Over the course of 25 years the facility will have paid $32.6 million with the tax incentive in place, compared to $335.8 million under a normal assessment. The amount of revenue forgone over 25 years totals $303.9 million, an average of approximately $12.1 million per year.
In an “Issue Brief”, the center’s Sean O’Leary dissects H.B. 4086, with a special emphasis on examining the Legislature’s “fiscal note” about potential costs of the governor’s tax break legislation. Incredibly, the fiscal note projected the costs of the legislation at $0 — that’s right, nothing. But O’Leary explains:
… There are several problems with the reasoning behind the $0 fiscal impact, and it is likely that there will be a significant fiscal impact if a facility is built, andtakes advantage of the tax incentive.
While legislators debated and ultimately passed H.B. 4086, the fiscal note, which informed them that there would be no fiscal impact, did not include:
— An estimate of the revenue forgone
— An estimate of the costs of increases in demand for government services
— A model to estimate the economic impact and corresponding increases in revenue
— An explanation for how state revenue increases offset forgone local revenue
The fiscal note also assumes that a cracker facility would not locate in West Virginia without the tax incentive, due to the state’s uncompetitive property taxes. This assumption relies on misconception about the state’s property tax system and ignores many factors more influential to business location decisions.
Legislation to overturn a state Supreme Court ruling that significantly weakened West Virginia’s Freedom of Information Act is making its way through the statehouse again, having passed the full House yesterday, as the AP’s Larry Messina reported:
A document’s content or context would help determine its release under West Virginia’s Freedom of Information Act, under an update to the open government law unanimously passed Wednesday by the House of Delegates.
Delegates advanced the measure to the Senate after a party-line vote rebuffed a GOP-sponsored amendment. It’s the first bill exchanged in the Legislature since the regular session began last week.
Readers may recall that Justice Robin Davis cooked up a fairly contorted ruling that concealed from public disclosure emails between then-Justice Spike Maynard and his buddy, then-Massey Energy CEO Don Blankenship, that were sent while a major verdict against Massey was headed for an appeal before the court. As we’ve written before, Justice Davis blatantly mischaracterized the content of some of the emails that were released during an earlier portion of the case, making out like none of them had anything to do with the public’s business. Perhaps the best description of the problems with the decision were outlined in a dissent filed by Justice Margaret Workman, which we discussed here.
The Legislation now under consideration, H.B. 2402, would rewrite the state’s definition of public record in this way (underlined language is what would be added to the law):
“Public record” includes any writing containing information relatingprepared or received by a public body, the content or context of which, judged either by its content or context relates to the conduct of the public’s business. prepared, owned and retained by a public body
Interestingly, the House Democratic leadership made sure to block two amendments proposed by House Minority Leader Tim Armstead, R-Kanawha.
One amendment would have significantly narrowed a problematic FOIA exemption that covers “internal memoranda or letters received or prepared by any public body,” adding the requirement that such documents could only be withheld “to the extent that these internal memoranda or letters contain information which would be specifically exempt from disclosure” under any of the other state FOIA exemptions.
The other would have added this language to the existing exemption for certain law enforcement records:
Such agency shall, at the conclusion of any investigation resulting in a criminal charge, prepare a full report of such investigation; and, unless the agency determines that disclosure of that report would hinder prosecution of those criminal actions, or any other ongoing investigation, such report shall be subject to disclosure.
The bill now goes to the Senate, where Judiciary Chairman Corey Palumbo, D-Kanawha, told the AP that he generally favors broadening the scope of FOIA, but also wants to examine how other states define “public record” in their versions of that law. Maybe that review won’t take too long … all Delegate Palumbo needs to do is point his web browser to the site of the Reporters Committee for Freedom of the Press, and he can pull up a side-by-side of all state public records laws. If you’re interested in protecting the public’s right to know in West Virginia, Sen. Palumbo’s number at the Capitol is (304) 357-7880. If you want to encourage Senate President Jeff Kessler to move this legislation, his number is (304) 357-7801.
The governor might, as some lawmakers did during floor debate today, argue that because industry wasn’t completely happy with the bill and citizen groups were likewise not happy with the bill, that the legislation is obviously a reasonable compromise. Such arguments ignore the overwhelming evidence that changes made by the governor’s office were almost exclusively aimed at pleasing industry and weakening the legislation (see here and here).
For all West Virginians, the legislature and I have worked together to open the door to new job opportunities and reasonable regulations for Marcellus Shale development with the passage of the Horizontal Well Act. This landmark piece of legislation provides clear rules to the natural gas industry, protects our communities, surface owners and waterways while sending a clear message – West Virginia wants jobs and we will protect our rights and our environment.
Going forward, some of the more important questions about the future of the state’s natural gas industry:
— How much good will the increased inspectors — 14 new staff will be funded by the increased permit fees — do when they get on board at the state Department of Environmental Protection? Are a lack of inspectors and the need for new rules enough, or are problems at DEP — an agency environmental groups don’t especially trust — bigger than that?
So will the industry play ball, now that a joint special interim committee has come up with compromise legislation? It doesn’t look like it, unless pretty major changes are made to remove some key provisions of the measure.
Enacting legislation that addresses the safety and environmental concerns is important to the citizens of West Virginia, the legislators and the natural gas industry. But enacting overly burdensome or counterproductive legislation serves no legitimate public policy and, more importantly, does not serve the citizens of West Virginia.
I respectfully urge your Committee to focus on the essentials of the legislation outlined above and reject the attempts to burden the legislation with others’ wish list of issues that do not advance safety of citizens and the protection of the environment coupled with encouraging economic development through jobs and tax revenue.
Here’s what the industry group thinks legislation should do:
I am abundantly aware that the development of gas bearing shale formations in West Virginia has generated a public outcry of both legitimate and non-factual concerns. I strongly suggest that the Legislature’s role is to address the legitimate concerns and discard the fabricated or non-factual concerns. These legitimate concerns include (1) the protection of water supplies, (2) the use and disposal of waters of the State and (3) the use, maintenance and repair of county roads for natural gas exploration and development.
And here’s what they are against:
What we should not and cannot do in a limited amount of time is to rewrite history and turn upside down well developed contractual relationships. Toward that objective, I make this plea that the Joint Select Committee make first things first and refocus its effort on addressing the important matters and leaving the efforts to re-align long standing property rights to another time or at least another legislative initiative.
UPDATED: The legislative committee on Marcellus Shale has approved the bill and asked for a special session to consider the measure.
Long-time West Virginia political leaders like Sen. Joe Manchin (above) were making much earlier this week (see here and here) about how the state needs time to get a handle on the Marcellus Shale issue and put a proper regulatory system into place, making it clear they want federal officials to pretty much mind their own business.
But on at least one crucial issue — whether the state Department of Environmental Protection has enough inspectors and other staff to do the job — West Virginia has had nearly 20 years to remedy the problem, and so far as done next to nothing. That’s the bottom line in a story we posted online last night. Headlined, State ignored previous warnings about drilling inspector shortage, the story explains:
Long before most West Virginians had ever heard the words “Marcellus Shale,” outside auditors were warning that the state’s oil and gas regulatory agency was greatly underfunded and severely understaffed.
In December 1993, a review by the Interstate Oil and Gas Compact Commission warned that lack of funding and a shortage of inspectors were among the chronic problems facing the state Department of Environmental Protection’s Office of Oil and Gas.
“The OOG does not have enough inspectors or funding to fully meet its statutory mandate,” said the 98-page review report, written by a team of regulators from other states, industry officials and environmental group representatives.
A decade later, another outside examination found that little had changed. The state oil and gas office still “does not have enough inspectors or funding to fully meet its statutory mandate,” said a 110-page report issued in January 2003.
Don Garvin, lead lobbyist for the West Virginia Environmental Council, commented at Sen. Manchin’s Senate committee field hearing, held in Charleston on Monday:
The best written rule is no good if you don’t have enforcement, if you don’t have inspectors in the field overseeing the operations.
You can read the 1993 review of West Virginia’s oil and gas regulatory program here and the follow-up review done in 2003 here.
Delegate Tim Manchin, D-Marion and co-chair of a special Marcellus Shale committee, made it pretty clear yesterday where he stands on whether the state Legislature should stop stalling action on a new natural gas drilling regulatory bill:
If the industry uses its vast arsenal of lobbyists and other means to delay or defeat a meaningful bill, you won’t have to come back here to hear about it, because I’ll be coming to Washington to ask for your intervention to protect our citizens and our beloved West Virginia hills.
One aims to encourage drillers to reach voluntary agreements on compensation and land access with the owners of the surface property that would host a well. In such cases, the operator may have obtained the mineral rights through separate owners. Another amendment Monday sets qualifications for state gas field inspectors.
The AP story also reported possible objections to parts of the bill are being raised by the Tomblin administration:
Tomblin Chief of Staff Rob Alsop also said earlier that the governor shares some of the industry’s disagreements with the bill.
“There are some provisions of the bill that give us some concern,” Alsop said Sunday. “We hope to work over the next couple weeks with the co-chairs and legislative leaders to come to a resolution.”
This hearing is an opportunity for West Virginia to demonstrate our unique position of strength in the energy industry, as we are literally sitting on top of the tremendous potential of the Marcellus Shale. With the development of this resource, our state has a great opportunity to do two critical things at once: create jobs both now and into the future, and advance our goal of achieving energy independence within this generation.
Two meetings this week should determine whether West Virginia lawmakers will tackle Marcellus Shale drilling rules this year, but the main players involved in the months-long quest for compromise appear as divided as ever.
A special House-Senate committee plans to debate a final handful of amendments to its draft Marcellus bill Monday. The legislators will then likely decide Wednesday whether to endorse the measure.
In his inaugural speech on Sunday, Gov. Tomblin made mention of the issue, saying:
Now, we are on the forefront of new energy sources and new technologies with the development of the Marcellus Shale.
Working with members of the Legislature, we will put permanent rules in place to provide certainty to the natural gas industry, while also protecting landowners and our environment.
And with this certainty, we will see our manufacturing sector rejuvenated by taking advantage of natural gas byproducts.
I look forward to, not just one, but hopefully two multi-billion-dollar investments, so our children can stay home, secure good paying jobs and raise their families’ right here in West Virginia.
To do this, we must work together.
But Larry reports:
Tomblin also has concerns with the bill, Chief of Staff Rob Alsop said Sunday. As an example, Alsop cited a provision addressing the casing of a gas well’s walls with cement to prevent leaks. Supporters of this language say it’s borrowed from neighboring Pennsylvania, a leader in Marcellus drilling. Echoing an industry objection, Alsop said it does not allow for evolving technology.
“Given the kind of amendments that have been passed, we do believe there will be changes that need to be done,” Alsop said.
Alsop also said that Tomblin is pleased with the committee’s progress, and hopes to resolve his concerns with legislative leaders over the next couple of weeks — if a final bill emerges.
If West Virginia is to avoid a costly future environmental legacy like that left behind by coal mining and natural gas extraction of the past, bonds for horizontal wells in the Marcellus and other shales must be high enough to ensure those wells will be plugged.
Legislation currently in draft may set a sufficient level, or may not …
“A $50,000 individual well bond would cover the cost of plugging an individual Marcellus well,” said Don Garvin, legislative coordinator with the West Virginia Environmental Council and a long-time board member of STRONGER, the national nonprofit State Review of Oil and Natural Gas Environmental Regulations, which helps states improve their oil and gas regulatory programs.
“But a $250,000 blanket bond is a joke,” Garvin said.
When I was talking with Delegate Tim Manchin, D-Marion, earlier this week about the Marcellus Shale drilling bill (see here and here), he said one of the biggest problems for lawmakers and staff has been that industry lobbyists kept declining for months to put their concerns about specific language — or proposals for improvement — in writing.
But Delegate Manchin did mention that the West Virginia Oil and Natural Gas Association had recently sent lawmakers a short letter outlining some specific objections to language added to the legislation by a special interim committee. So I thought we’d post that letter here so everyone can give it a read. Among the industry’s objections:
— A buffer zone of 1,000 feet (as originally proposed, but reduced by the committee to 625 feet) between homes and wells “will cause very significant portions of the state to become off-limits to drilling thereby sterilizing many resources.”
— The “casing and cementing requirements” should be left to the state Department of Environmental Protection to write during rulemaking, rather that specifically set by lawmakers. The industry letter says:
It appears that the drafters of the amendment essentially borrowed the language from Pennsylvania regulations that were finalized after considering around 2,000 comments. West Virginians deserve the same opportunity to participate in a rulemaking process rather than having the Legislature serve in the rulemaking capacity.
— Requiring public notices of new permit applications to be published in the newspaper “will result in obstructing the well permit application process.”
— Proposed permit fee increases to fund additional inspectors send “a clear message to the industry that “West Virginia is an uncompetitive business environment.”
The letter concludes:
It is WVONGA’s view that the adopted and pending amendments do not advance the cause of promoting the development of our natural resources while at the same time ensuring long-term protection of the environment.