The Register-Herald, Beckley, West Virginia

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February 1, 2011

Bill to create Intrastate Coal and Use Act gains new support

CHARLESTON — A bill intended to give a West Virginia agency final say on coal mining permits introduced in duplicate to a West Virginia House of Delegates committee was pushed forward Tuesday — with the same name but different sponsors.

A few weeks ago, Delegate Gary Howell, R-Mineral, introduced the Intrastate Coal and Use Act, which designates the West Virginia Department of Environmental Protection as the “final-say” agency on permits for coal companies that produce coal for in-state use. The bill was referred to the Energy, Industry and Labor/Economic Development and Small Business Committee Jan. 19 and has not yet been brought out for discussion.

“The federal government has overstepped its authority in the Constitution. They are costing West Virginia jobs, they are putting unnecessary hardships on West Virginians, and our founding fathers gave us the tools to run our state as we see fit,” Howell said. “This bill takes those reigns away from the federal government and puts the state in charge, because we know better how to deal within our own borders than what somebody in Washington does.”

However, the leaders of the Energy, Industry and Labor committee had a few issues with the bill that they said kept it from going to a vote.

Monday afternoon, Delegate Stan Shaver, D-Preston, vice-chairman of the committee, said he thought the problem with the bill dealt with it’s constitutionality.

“I think there’s a consensus among the attorneys that it’s probably unconstitutional,” Shaver said Monday morning. “I think that’s the consensus.”

Shaver deferred to Delegate Larry W. Barker, D-Boone, chairman of the committee, for further comment. Monday afternoon, he said the problem was that from what he gathered, it would be hard to prove that business was not done outside the state.

“If you sold hamburgers and you made the hamburgers here and you fried them here, and everything else, but they find out you ordered the buns from Kentucky, that would eliminate the word intrastate,” Barker said.

Howell disagreed, saying that definition of intrastate commerce is far narrower than what the writers of the Constitution intended.

“If you buy some kind of excavator, conveyor — it could even be a dump truck — it is regulated by interstate commerce, but once you get it here, you own it. That interstate commerce has ended once you purchased the vehicle,” Howell said. “Following (Barker’s) philosophy, there would be nothing but interstate commerce and that’s not how the Constitution was set up.”

Tuesday afternoon, while House Bill 2554 remained stalled, House Bill 2972 was passed to the same committee. The bill was introduced with the same title and nearly identical text, but with one key difference. Howell, a freshman Republican in the House, who has touted his version of the bill since before setting up office in Charleston, was no longer a sponsor or co-sponsor on the bill.

Several other Republican delegates who sponsored 2554 also were no longer listed on 2972.

The new bill is co-sponsored by 11 Democrats, including Delegate Steve Kominar, the chair of the economic development and small business committee and Delegate Harry Keith White, chair of the finance committee. Kominar also co-sponsored Howell’s version of the bill.

Tuesday evening, after learning the new bill was introduced, Howell said he wanted to compliment House Democrats for “introducing my bill with all Democrats on it.”

“With a Democrat-controlled Legislature, it makes the bill much easier to move,” he said. “As Ronald Reagan said, ‘You can get a lot accomplished if you don’t care who gets the credit.’ This bill is important to the people of West Virginia and our economy, and I hope with all Democrats on it, this bill swiftly moves through the Legislature and becomes law.”

Howell said he had even considered approaching the House speaker to have his name taken off the legislation “if that’s what it takes” to get the bill passed.

The new Democrat-introduced bill also adds a section that cites a recent EPA action affecting Logan County. The bill also states that “by denying or shutting down mining permits long after the basic permits had been approved presents the threat of the United States Environmental Protection Agency shutting down all coal mining in West Virginia, costing the jobs of thousands of miners and driving the state into bankruptcy.”

Howell said constitutionality of the bill shouldn’t be a question, as “some of the best constitutional lawyers in the nation” at the Cato and Goldwater institutes have determined the law does pass constitutional muster. Further, Howell said the constitutionality of the bill should not be the delegates’ concern.

“While I respect delegates Barker and Shaver’s positions, about the constitutionality, we are the legislative branch, not the judicial branch,” Howell said. “If we are unsure, it is our job as legislators to pass it out and let the judicial branch do their job and decide whether or not we are correct. It is always best to side with the people of West Virginia.”

Howell said the full membership of the West Virginia Legislature should have the opportunity to decide if they want to enact the Intrastate Coal and Use Act.

Monday evening, Barker said he and several delegates from the committee “looked at it pretty hard” and determined there was not enough support for Howell’s bill to pass. Between the two bills, 19, or one fifth of the delegates, Republican and Democrat have sponsored or co-sponsored one or both of the pieces of legislation.

Tuesday afternoon, Barker said he had just received the second bill and that both pieces of legislation would be discussed on Friday. He said they did appear nearly the same, but he had not had the chance to review the new bill.

Barker said he is an adamant supporter of state rights and agrees the EPA had overstepped its authority

Howell said there was a way to check Barker’s prediction that there is not enough support.

“Let’s put it to a vote and find out.”

— E-mail: tkuykendall@register-herald.com

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