Capital Eye: Unintended Consequences

We hope you enjoyed your warm weekend!  Now, start off your Monday right (or should we say ‘left’?)  with an update on what’s been happening at our state Capitol.  Don’t forget to click the bold links to take action!


 Capital Eye

Unintended Consequences
by Gary Zuckett

One of the blessings about our state’s legislative session is that it only lasts 60 days. That also creates one of its pitfalls. In the rush to grind out as much policy as possible, lawmakers often find afterwards that there are ‘unintended consequences’ to deal with that never occurred to bill sponsors and the majority voting for a new law. One that comes to mind was the tax break for ‘alternative’ fueled vehicles that was passed several years back. Turns out that the myriad ‘Flex-fueled’ SUVs on the road that could run with a higher dose of alcohol in the tank were also covered under the ‘alternative fuel’ definition in the bill. As a result, instead of promoting more natural gas powered transportation, the state ended up paying out tens of millions in tax credits to owners of gas guzzling SUVs and pickups. There are lots more of these ‘bloopers’ every session.

Convention of the Unintended

Two resolutions and at least one bill now under consideration would add our state to the growing list calling for a ‘Constitutional Convention of the States’ purportedly to ‘fix’ the federal government in one way or another – Balanced Budget; term limits for Congress; reign in the Supreme Court; even overturn Citizens United, which is one that we agree needs to be fixed. However, CAG’s testimony at the 9AM Saturday hearing was whoa, beware of unintended consequences! Constitutional scholars point out that a convention of the states, even though written into Article V of our US constitution, has never been tried. They feel it would be hard – if not impossible – to keep delegates to such a conclave limited to only one or two issues. WVCBP warns that it could be open season on the whole document and no one knows what it would look like coming out the other end. SCR 10 passed out of Senate Judiciary on Saturday – contact your senators and ask them to vote no on any Constitutional Convention.

Red Ink Budget

WV Center on Budget & Policy was in the news again this week with its report on the Governor’s budget proposal. The report finds huge tax cuts enacted by then governor Manchin are a large part of the reason our state is in the red. “Senator Manchin Unsure if Tax Cuts were Right Move” was the headline of the Charleston Gazette-Mail on January 7th of this year. Another case of unintended consequences? Maybe so, but Ted Boettner, of the Center, told them back then they were building a ‘structural deficit’ into the state budget with those cuts!

Smoking Bans Under Attack

Casinos hate smoking bans – it costs them business. So just like last year, several bills are being considered to roll back these clean air regulations. One tactic is to make County Health Departments implementing these bans come under review by their County Commissioners. “Leave public health to the public health experts,” said former Senator Dr. Dan Foster in the Charleston Gazette-Mail this week about HB 4472 & SB 284. An unintended consequence of this is that every local health ordinance would go through County Commissions, even those that have nothing to do with smoky casinos.

Drillers Wish List Advances

Three bills being pushed by big Oil & Gas are moving. SB 508 sets up a “permit shield” against any nuisance claims against next-door fracking operations. This one potentially affects anyone who has noisy neighbors. Another, SB 565, would allow them to bulldoze well pads on your property even before they get a permit to drill the well! See Julie’s article for details on these and the new one that was both “originated” in and passed out of House Energy Committee at 8 AM on Saturday to replace the failed Forced Pooling bill.

Voter ID Passes House

On Friday, February 19th the WV House of Delegates passed HB 4013 in a 2-1 margin with 3 Ds and 1R crossing over. This bill would require voters to provide photo identification when voting and suppress voter turnout. It was softened in committee but is still unnecessary and a waste of taxpayer’s money and public employees time. To find out how your delegate(s) voted and let them know you are against voter ID and HB 4013, please click this link. You will be able to either thank them for their ‘No’ vote or tell them you are disappointed in their ‘Yes’ vote on this unnecessary and restrictive voter ID law.

Cole Gets Eyeful Outside Dinner

After the treatment it got this session and last, Labor is now on the warpath and had its first skirmish on Tuesday when about a hundred workers and friends showed up downtown outside the Senate Presidents annual dinner. President Bill Cole, also the Republican candidate for governor, was greeted with signs that saying “Stop the War on Workers” and “Remember in November” (and several others more colorful) as cars honked their horns in agreement.

Solid Waste gets Wasted

Oil & Gas is looking for another favor from Charleston, one that will allow them to build their own landfills for fracking waste without approval or oversight from pesky county Solid Waste Authorities or the Public Service Commission. Only the DEP would have to permit such facilities in SB 601.

Also electronics will be allowed dumped into landfills if SB 473 passes. It’s now in Senate Judiciary. Keep abreast of these and other environmental issues at the WV Environmental Council’s page.

Not all Bad

A Saturday meeting of House Government Organization passed out the Nurses Full Scope of Practice bill. It was a grueling debate which basically covered all the same objections and amendments as discussed in the Health Committee hearing earlier in the week. It now goes to the full Senate for passage to the House. Call your Senator in support of HB 4334!

One More Ask

As the days stay lighter longer, so do our work days at the capital. Many of us were there from 8AM to 4 or 5PM on this sunny Saturday after a long week. Much of this update gets written and edited on Sunday so you have it on Monday morning. Why? Because you, our members & supporters, need to know what’s happening and want to help by contacting lawmakers on the issues. Believe us, its gets their attention when someone from their district calls in on a bill. Keep those calls coming!

The other way you can support the work is to write a check to keep Citizen Action working hard for you. You can do this online or by mail at 1500 Dixie Street Charleston, WV 25311 – either way your ‘green’ keeps us going!


Three new bills that chip away at consumer protections
by: Emmett Pepper

Last week, we updated you about bills to help employers and other creditors get more access to the paychecks of their employees. This week, we have a few different bills that chip away at the rights of people struggling to keep up with debt that are being bombarded by debt collectors and trying to pay back their debts. Last year, the legislature made a major overhaul to the Consumer Credit Protection Act (CCPA), a bill that WV CAG was instrumental in forming. The CCPA reforms last year were negotiated between consumer advocates and creditor organizations, coming to a compromise. Despite reaching compromise, there are several bills opening it up again.

These three bills – SB 612, SB 614, and SB 635 – have all been introduced in the last week, right before the deadline for bills to be passed out of committees, which happens at the end of this week.

Making it harder to save a home from foreclosure

First is SB 612/HB 4623, which deals with what needs to be paid back in order to avoid a home being foreclosed on. One situation that happens from time to time is when a bank starts foreclosure proceedings after a homeowner defaults on the loan, and then the homeowner is able to turn things around and reinstate the loan and get back on track. Currently in those cases, there are certain charges that the homeowner can be charged such as the costs to advertise the foreclosure sale in the paper and appraisal fees for determining the value of the home. SB 612/HB4623 would pile on a list of additional items that homeowners can be charged while at their most economically vulnerable: when they are trying to save their home.

WV CAG believes that these bills will make it that much harder for people to save their homes and avoid foreclosure.

When is unconscionable not bad enough?

Currently, if an agreement or transaction was “induced by unconscionable conduct,” then a court can refuse to recognize the transaction as being valid or enforceable. Apparently some legislators and lobbyists who want SB 614/HB 4603 don’t think that unconscionable inducement is bad enough. They wanted to make it so that the conduct that induced the transaction has to be “fraudulent” in order for a judge to be allowed to throw it out. So, if someone tricks someone into signing some papers in a way that shocks the conscience, but didn’t technically commit fraud, papers would stand.

If you ask us, SB 614 and HB 4603 are unconscionable!

Giving banks more time to sue you

As you may know, if you get harmed by someone, such as in a car accident, you have two years to find a lawyer and decide whether or not you wish to pursue a legal action under the state’s statute of limitation laws. Right now there is a slightly longer statute of limitation – four years – for consumers who want to bring a lawsuit for violating consumer rights or for banks that want to collect an unpaid balance for a loan for personal property. SB 635/HB 4641 would extend that statute of limitation to six years, but ONLY for the banks. So, the banks can wait for years to collect, when there’s less likelihood of regular West Virginians having their documentation to prove they’ve paid a loan, or had any idea that it was even possible to get sued.

What you can do

All three of these bills are assigned to the Senate Judiciary Committee. Please send an email to the Senate Judiciary Committee by clicking this link.


Legislature Adds Insult to Injury with Bills to Aid Gas Drillers
by:  Julie Archer

It was bad enough that the Legislature and Governor Tomblin included few protections for surface owners in the Horizontal Well Act when the state finally updated antiquated drilling laws in 2011. Instead, the Legislature included an arbitrary setback of 625 feet from the center of the pad in the Act. They also required the DEP to do studies and gave the agency the authority to do rule-making if the studies showed additional protections were needed.

DEP contracted with the WVU School of Public Health to conduct a study on noise, light, dust and volatile organic compounds (VOCs) as they relate to the distance wells can be from peoples’ homes. Based on the study’s findings, DEP reported back to the Legislature saying that action needed to be taken “to reduce potential exposures” and “to provide for a more consistent and protective safeguard for residents in affected areas.” Instead of doing rule-making, the DEP asked the Legislature to revisit how close well sites can be to peoples’ homes, suggesting the limit from occupied dwellings be measured from the limit of disturbance (edge of the pad) rather than the center.

It’s been nearly three years since the study’s findings and recommendations were published, but neither the DEP nor the Legislature has taken any action to implement them. To add insult to injury, the Legislature is attempting to further erode the limited rights surface owners have and eliminate laws that surface owners and others living with oil and gas drilling in their communities are using to seek relief from drilling related impacts that are not regulated by the DEP.

The most egregious of these proposals is SB 508, which would take away citizens’ ability to bring “nuisance” suits against against oil and gas drillers or others who engage in activities that harm their property values or interfere with the enjoyment and use of their property. On Thursday, the Senate Judiciary Committee approved the bill and it is scheduled to voted on by the full Senate on Tuesday. The only audible “No” vote against the bill was Senator Mike Romano (D-Harrison).

Although much of the discussion around the bill has focused on oil and gas drilling, the effects of SB 508 are not limited to suits over oil and gas related activities. As the Charleston Gazette-Mail reported, the bill gives businesses virtual immunity from nuisance suits as long as the business does not violate a law, regulation or the terms of their license or permit. Drillers and other businesses could use this “permit shield” as a defense, even if the activity causing the nuisance isn’t covered or regulated under the license or permit.

If SB 508 passes, property owners would be left with no legal recourse to hold irresponsible neighbors accountable for their actions. We can’t let the Legislature take this right away.

Click here to contact your Senators and tell them to oppose SB 508. The West Virginia Association for Justice has also created a page to easily to contact your legislators again and urge them to vote NO on SB 508.

Unfortunately, the insults don’t stop there. The same day the Senate Judiciary Committee passed SB 508, the Senate Committee on Energy, Industry, and Mining approved a bill, SB 565, which would allow drillers to build well pads and access roads on a surface owner’s land without getting a well work permit. Instead, drillers would apply to build the pad and roads under a general water pollution control permit for oil and gas related construction activities issued by the DEP Division of Water and Waste Management (DWWM).

Although this may give some folks comfort because the DWWM has been more aggressive about issuing Notice of Violation to drillers when there activities impact waters of the state, there are a couple of problems with this approach. First, Stormwater Pollution Prevention Plans (SWPPPs) are not engineer-approved or subject to an engineering review by the DEP. SWPPPs are only intended to control sediment and DWWM only reviews the plans for how well they will keep sediment from the construction site from entering rivers and streams. Second, the stormwater permit is only in effect during construction. This means if the pad or access roads are poorly built and problems arise after construction is complete, and the driller has not yet applied for and received a well work permit, the DEP may be left with no way to make the driller correct these problems.

In addition to creating regulatory loopholes, SB 565 is bad for mineral owners because it would allow drillers to extend and hold some leases that might otherwise expire, simply by building a well pad with no a guarantee that they will actually drill a well.

Just when we thought the week couldn’t get any worse, on Saturday, the House Energy Committee approved a bill would allow drillers to lease jointly owned or heir-ship mineral tracts if a simple majority of owners agree to sign – changing existing common law that currently requires all owners with an interest in tract to sign before a company can execute a lease. (Read more here.)

Our biggest concern with the bill, as our co-founder and attorney Dave McMahon told members of the committee, is that there are many surface owners who only control a small portion of the minerals under their property. HB 4639 would allow the wishes of those surface owners to be ignored if a little more than 50 percent of their co-owners in the mineral tract make a deal with the gas company. For years, SORO has advised surface owners to buy an interest in the minerals under their property if they want to have a say in how the minerals and their surface property are developed. HB 4639 would largely eliminate any leverage surface owners with partial ownership of the minerals have in negotiations with gas companies.

Please contact your Senators and Delegate(s) and urge them to oppose these terrible bills.

Thank you for taking action! We’ll continue to keep you posted.


LEEP Act Still Needs to Move Out of Committee
by Emmett Pepper

As you may recall, the LEEP Act (SB 370) is the top priority of EEWV this legislative session. It is a bill that allows local governments to create a funding mechanism for energy efficient upgrades to commercial buildings. The bill has strong, bipartisan support in each house of the legislature, but has not yet been taken up by a committee.

While it is easy to get cynical about politics and assign negative attributes to people we disagree with, as Forbes recently covered, energy efficiency is a nonpartisan, widely popular concept regardless of your political stripe. As a lobbyist, I am constantly seeking out people who may be opposed to legislation I want to get passed, in order to see if I need to improve the bill to keep them from opposing it. I have done that over the past year and, believe me, there is absolutely no organization left who is still opposed to the LEEP Act. No legislator or lobbyist that I am aware of is against the bill. No one.

More importantly, the LEEP Act will help businesses reduce costs, which helps them stay in business and employ more West Virginians. The bill will also help construction and businesses that work on heating and cooling systems, because it will make it easier for businesses to make those upgrades. West Virginia is an outlier state in having this mechanism, as 30 states currently have equivalent laws to the LEEP Act.

The Senate Energy, Industry, and Mining (EIM) Committee needs to take up the LEEP Act on Tuesday or it may be dead. We need your help TODAY to ask the EIM Committee members to take up this bill and vote it out of committee.

Click here to contact the committee and ask them to take up the LEEP Act ASAP!


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