Cumberland Times-News

February 18, 2013

Howell’s bill would put coal mining power in W.Va’s hands

Delegate wants to move authority from EPA to state

From Staff Reports
Cumberland Times-News

— KEYSER, W.Va. — Delegate Gary Howell has reintroduced legislation that would grant the state of West Virginia authority to permit coal mining, thereby removing the power from the U.S. Environmental Protection Agency, according to a news release.

“The federal government has overstepped its constitutional authority. 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 in the news release. “As West Virginians with hundreds of years of coal mining roots, we understand the industry better than Washington bureaucrats and should be able to govern it accordingly.”

Under the proposed legislation, the West Virginia Department of Environmental Protection would be the sole entity able to issue coal mining permits to companies that produce, sell and use coal within the state borders of West Virginia.

The DEP is currently responsible for assuring potential mines have met all state and federal regulations before recommending their permit approval to the EPA.

Howell’s argument that the federal government does not have the jurisdiction to regulate mining permits has received national recognition from well-known constitutional attorneys like Nick Dranias, director of the Center for Constitutional Government at the Goldwater Institute, according to the news release.

“I think that Gary Howell is advancing precisely the kind of legislation that stands a chance of vindicating state sovereignty because it exerts powers traditionally recognized as within the powers reserved exclusively to the states,” said Dranias in the news release.

Howell continued to clarify this point.

“The bill states that if the coal is sold within the borders of West Virginia and never leaves the state — used within the borders — then no interstate commerce exists,” Howell said. “Since the EPA gets its jurisdiction from the interstate commerce clause (of the U.S. Constitution), then they have no authority to deny those permits under the 10th Amendment to the Constitution, which reserves those rights to the state not enumerated in the Constitution.”

Also, there are no environmental costs to the legislation as permits issued by the DEP would be required to meet all EPA environmental standards, according to the news release.

“Delegate Howell’s legislation presents a creative way of getting around the stranglehold that the U.S. EPA has on new mining permits here in West Virginia which continues to plague West Virginia's economy and hard-working West Virginians who rely on the coal industry to support their families,” said West Virginia Coal Association Senior Vice President Chris Hamilton in a news release.

The proposed legislation has nine co-sponsors, including Republican Delegate Randy Smith of Tucker County and Republican Delegate Joshua Nelson of Boone County, both of whom are coal miners, according to Howell.

The bill was originally introduced in 2011 and received support from the West Virginia Coal Association as well as bipartisan backing from legislators across the state in response to the EPA’s repeated rejection of, or failure to act on several West Virginia mining permits, according to the news release. However, the bill didn’t pass.

Howell indicated in an interview with the Times-News that the previous bill was very well received by the industry and public leadership but that there were problems with its constitutionality.

“It had top constitutional lawyers believing that it passed the constitutional muster,” said Howell.

Lawyers at the Cato and Goldwater institutes determined that the 2011 bill did pass constitutional muster, according to a previous Times-News article.