If you are looking for another example of how the Legislature in West Virginia favors big industry over the little guy, look no further than SB 822, introduced in the Senate on February 16, 2024. This bill attacks carbon offset agreements and conservation easements — two different kinds of contracts currently used by small landowners to generate income from private land. Sometimes these contracts prohibit future timbering of the land. The timber industry hates this.

Carbon offset agreements are private contracts between emitters of greenhouse gas – say a manufacturer or a package delivery company — and owners of forested lands. Forested lands act as a natural carbon sink, removing carbon dioxide from the atmosphere and converting the carbon to wood fiber while releasing oxygen back into the atmosphere. That wood fiber keeps the carbon from the atmosphere over many years. Carbon dioxide emitters pay landowners not to cut the carbon absorbing timber on their lands. In exchange the producers get carbon credits against pledges to de-carbonize operations or in carbon markets.

Conservation easements are a different sort of private contract. They are made between a private landowner and a charitable group like the Eastern Panhandle Land Trust to preserve the natural character of valuable land by prohibiting development, including commercial timbering. By their terms, easements are perpetual. If an easement is donated to a charity the landowner gets a tax deduction, so both conservation easements and carbon offset agreements create a revenue stream for the landowner.

SB 822 seeks to interfere with a private landowner’s freedom to restrict her property from future timbering, all in service to the West Virginia timber industry. In 2023 a similar bill was opposed by environmental groups, the West Virginia Farm Bureau and property owners’ groups as a threat to a legitimate income stream for farmers and forest property owners, and an obvious incursion into the freedom to direct the use of one’s own land. Perhaps most importantly, carbon offset agreements are a market-based device to reach carbon neutrality and should be encouraged. Fortunately, last years’ bill died in the Finance committee.

SB 822 would create a strong disincentive for carbon offset agreements. First many of them would be removed from the Managed Timberland Program and lose the tax break that accompanies it. Carbon capture agreements that impose substantial restrictions on “commercial production and harvesting of timber” would be removed.

Second, purchasers of carbon offset agreements would have to register with the state and be liable for an excise tax payment of up to 50% of the underlying value of the carbon offset. That kind of heavy-handed tax would deter many of the agreements.

SB 822 would also create huge uncertainty regarding the common use of conservation easements. It would amend the article on “covenants” in the Code chapter on Estates and Property to declare a state policy in favor of land development and timber harvesting. It would void any future easement or contract that effectively restricts land development or timbering longer than 20 years for the purpose of carbon offset or sequestration.

If the Legislature passes this bill, it will favor the economic interests of large industry over small landowners, deprive farmers and small landowners of a revenue stream from their own property, interfere with the freedom of contract, and eliminate a means of reducing greenhouse gasses and climate change. This is bad legislation, and it deserves to be firmly rejected.

Update 2/29/24. SB 822 was taken off the Senate calendar on the last day a bill could be passed out of its chamber of origin, effectively killing the bill. This resulted from strong opposition on the Senate floor by Minority Leader Mike Woelfel (Cabell) when the bill was read for the third time . Woelfel asked “Why are we taking away the property owner’s right to manage his property and his timber as he sees fit?” This “property freedom” rationale overcame the industry argument advanced by Sen. Eric Tarr (Putnam). Tarr argued that the bill was necessary to keep private carbon offset agreements from encumbering thousands of acres of forestland and “putting them out of reach of the timber industry.”

Nationally there has been great interest in electric plug-in vehicles. In West Virginia not so much. The Biden Administration has identified alternative fuel vehicles, including EVs, as one means of reducing greenhouse gasses. The West Virginia government has given them a big yawn. That attitude is still prevalent at the 2024 Legislature.

The real benefit provided by EVs is in limiting further climate change — they have no tailpipe emissions. CO₂ emissions are created in the manufacture of these vehicles, just as with gas-fueled vehicles, but after being put into operation they produce none. Electric vehicles are also cheap to operate, costing roughly 2.5 cents per mile. They require virtually no drivetrain maintenance.

Although the purchase price of EVs is relatively high, a substantial federal tax credit has been available for years against that purchase price. Purchasers of electric vehicles in 2024 may be eligible for a tax credit as high as $7,500, depending on the taxes they owe for the year. Consumers can choose between claiming a nonrefundable credit on their tax returns or transferring the credit to the dealer to lower the price of the car at the point of sale.

Despite all the benefits and incentives, EVs have not been popular in West Virginia. We rank close to the bottom in adoption rate for EVs. In part this is the result of the high proportion of truck ownership in the state – electric trucks are only now widely available. Perhaps more importantly, fast EV charging stations are thin on the ground in West Virginia, particularly along Interstate highways.

But another drag on the popularity of EVs in West Virginia is government policy. The state offers no tax credit for the purchase of an EV. And the state charges higher registration fees for EVs. In addition to the standard $51.50 vehicle registration fee, owners of an electric vehicle in West Virginia must pay a separate fee of $200. The state justifies this because highway maintenance is funded from gasoline tax. While EV owners use the highways they pay no gasoline tax.

Still, there is reason for optimism. A West Virginia Department of Transportation survey found that 59% of the public favored switching to EVs. West Virginia also intends to participate in the National Electric Vehicle Infrastructure formula, which allocates $45.7 million to charging stations in West Virginia. 990 new charging stations are planned.

For the last several years legislation has been proposed that would eliminate the higher registration fees for EVs. This legislation usually does not make it onto the agenda of the relevant committee and certainly has never received a full vote in either legislative chamber.

There has been similar legislation introduced in 2024 with, so far, a similar result. HB 4771, introduced January 16, 2024, would repeal the entire section of the Code relating to increased registration fees for hybrid vehicles ($100) and EVs ($200). SB 368, introduced January 12, 2024, would eliminate the extra registration fee only for hybrids but leave the fee for EVs in place. These bills are in committee and have not moved.

One other helpful bill of note has been introduced. HB 5212, introduced January 26, 2024, would require any new charging stations installed in the state for public use after January 1, 2025 to be “universal” and fit the vehicles from all manufacturers. This responds to compatibility problems with Tesla vehicles.

West Virginia has a Green Fleet Initiative for state vehicles designed to help the state meet its goal of lowering greenhouse gas emissions. Unfortunately, the state conveys little confidence in EVs now:

Replacement vehicles will achieve the greatest level of emission reductions possible while still meeting the operational needs of the State and being cost effective. Alternative fuel replacement vehicles should be procured only when there is fueling infrastructure in place at State operated or local commercial fueling stations to support the operation of these vehicles.

Even though EV adoption in West Virginia is slow, some interest group is afraid that gasoline powered vehicles may eventually fall out of favor. HB 5186, introduced January 25, 2024, declares that the government is prohibited from banning gasoline-powered state vehicles and cannot require that state vehicles be powered by any non-gasoline means. It is not hard to guess who benefits from this legislation and, therefore, who is promoting it. Fortunately, it is also stalled in committee where we hope it stays.

 

Carbon dioxide is by far the largest contributor to climate change, and it comes from recognizable fossil fuel sources such as coal-burning utilities, and automobile tailpipes. Carbon dioxide persists in the atmosphere for hundreds of years, making the climate change it causes not just a current problem, but a future one as well.

But experts say that methane (CH4) is a bigger problem than carbon dioxide (CO2).  While methane dissipates naturally after about 100 years, its pound for pound impact is 25 times greater than carbon dioxide in trapping heat reflected from the Earth’s surface.

Agriculture, including raising of cattle for human consumption and management of animal wastes, is the single largest source of methane. Natural gas and petroleum systems are the second largest source. The U.S. oil and gas industry emits more methane than the total emissions of greenhouse gases from 164 countries combined. These emissions come from leaks in the production and transmission infrastructure, and from leaking unplugged orphan wells.

Drilling Down on Gas Wells

Oil and gas drilling in West Virginia has been ongoing for 140 years. A huge number of wells were drilled and then abandoned before anyone noticed or cared. While the WV Department of Environmental Protection estimates there are 6,500 orphaned wells in the state, that doesn’t account for the tens of thousands of undocumented wells the West Virginia Geological Survey estimates are scattered throughout our hills and valleys.

Neither orphaned nor abandoned wells produce oil or gas. Abandoned wells still have a solvent owner, while orphaned wells do not, often because the operator has gone out of business. In that case, the responsibility of plugging and remediating these wells falls to the state – and to us as taxpayers.

The Biden Administration’s massive Infrastructure Act provides for funding the orphan well problem. West Virginia will receive $25 million in a first tranche, which should be sufficient to plug 160 of the worst problem wells. We can qualify for more later. All this money is to be used to plug existing orphaned wells, but we are on our own when it comes to preventing future orphans.

Future orphan wells are certain to be created because of the economic structure of the industry. There are 3,163 “producing” wells in West Virginia, those that are producing enough to fund proper upkeep. When those wells near the end of their useful life they are often sold to operators lower on the food chain, who strip the final production capacity from them. There are estimated to be 55,823 “stripper” wells in West Virginia. They produce so little that the operator keeps them alive, sometimes for many years, to avoid clean-up costs.

And the clean-up costs for plugging a well are substantial. The DEP estimates the cost for hiring a contractor to plug a well with expandable cement to a significant depth is about $125,000. When depleted wells are transferred from the big solvent operators to the marginal ones, the plugging obligation is also transferred. To get a permit to operate a stripper well, the new operator merely needs to obtain a bond worth $5,000. This makes the economic choice starkly in favor of abandoning the well at the end of its life and forfeiting the bond, rather than undertaking the proper plugging.

Why Can’t the Legislature Fix This? 

Bills to adjust the economic incentives for an operator to plug a well have been introduced at the Legislature each of the last six years, but none of them has even made it onto the agenda of the responsible legislative committee.

This year Del. Evan Hansen (Monongalia) and three others have introduced HB 5414, which would condition the issuance of a permit upon the operator either (1) contributing to a plugging escrow fund from out of the cash flow produced by the well, or (2) posting a bond in an amount set by the DEP sufficient to cover the real cost of plugging. Upon its introduction, HB 5414 was assigned to the House Committee on Energy and Manufacturing, where it now sits with no action taken on it.

The Energy and Manufacturing Committee is a powerful House committee chaired by Del. Bill Anderson (Wood). Parkersburg in Wood County is close to the historic center of oil and gas activity in the state. Two other Wood County Delegates sit on the Committee – Bob Fehrenbacher and Scot Heckert.

Instead of putting HB 5414 on the committee’s agenda, Anderson, Fehrenbacher and Heckert have sponsored HB 5076. This bill would exempt operators from the obligation to plug depleted wells “promptly,” as required by law, if they have entered into an agreement with DEP regarding the schedule and details of plugging.  Most importantly, it would eliminate the possibility of lawsuits brought by landowners and other interested persons to enforce the prompt plugging obligation.

And – surprise! – there just happens to be a lawsuit like this pending against Diversified Energy, a large operator of abandoned wells in the state. The lawsuit alleges that Diversified’s business model involves purchasing many low production wells and then delaying its plugging obligation for years to avoid the costs. Whether HB 5076 would end that lawsuit isn’t clear, but it would definitely prevent any future private legal enforcement.

Instead of being stewards of our environment and our groundwater, and protecting the taxpayers of West Virginia, these legislators seem more interested in protecting big gas business. This is a tragedy that, in one form or another, is replayed in this state year after year.

Unfortunately, the West Virginia Senate has adopted the wholly undemocratic practice of advancing bills at the opening of the annual legislative session without public notice, referral to committee or debate. Senate Bill 171, passed unanimously on January 12, 2024, is the most recent of these.  It is now with the House of Delegates.  If it becomes law, SB 171 will usurp and prevent local land use planning and zoning authorities from regulating industrial operations which fall under the broad state definition of “agriculture.”

The bill appears to be a thinly disguised attempt by the Senate to override strong public and local government opposition to the relocation of a timber fumigation plant near Baker in Hardy County.  The facility, proposed in 2023 by Allegheny Wood Products (“Allegheny”), would treat or fumigate timber harvested elsewhere and intended for shipment overseas with methyl bromide, a highly toxic chemical.

Though the Division of Air Quality was prepared to issue an air pollution control permit to Allegheny, construction of the plant ultimately required re-zoning approval from the Hardy County Board of Zoning Appeals.  However, public reaction to the proposed plant was fierce, and over 150 County residents attended a May 4, 2023, public hearing.  Facing intense public opposition and a zoning appeal board that signaled it would deny the rezoning request, Allegheny withdrew its application.  But that’s not where it ended.

Because SB 171 was passed by the Senate with no debate, we don’t know what levers were pulled behind the scenes or by whom. But somebody is opposed to local control of agricultural issues, including the use of pesticides, and influential Senators are listening. The bill would never have been included in the fast-track package rammed through at the beginning of the session without the complicity of Senate Republican leadership, led by Senate President Craig Blair (Berkeley). Other sponsors of the bill were Patricia Rucker (Jefferson/Berkeley), Charles Trump (Berkeley/Morgan) and Mike Oliverio (Marion/Monongalia).

“Agriculture” is broadly defined under state law to include operations or land used in the production of woodland products.[1]  SB 171 would expressly prohibit county commissions from taking any action that would interfere with a permissible use of approved pesticides, herbicides or insecticides and would exclude agricultural lands or operations from local regulation.  If enacted, the bill would have a far-reaching effect and would further diminish local control over land use in favor of legislators in Charleston.

One feature of SB 171 is that any ordinance, rule, regulation, license requirement, or other authorization previously adopted by a county commission that contravenes or is stricter than any state law, rule, or regulation regarding agricultural operations would be revoked. This is certain to create uncertainty and frustration in local government.

If the bill passes the House and becomes law, Allegheny will be back with its proposed wood fumigation operation and the citizens of Hardy County won’t be able to do much about it. Despite the West Virginia Senate’s disdain for democracy, the democratic process can work for us if citizens speak up and object. CWV opposes this legislation. Let your delegates know how you feel.

UPDATE February 13, 2024

SB 171 was introduced in the House of Delegates on January 25, 2024, and was referred to the Committee on Governmental Organizations. When the bill was reported out of committee, two amendments were offered on the House floor and both were defeated. By a vote of 84 to 16 the House passed this bill on February 13, 2024. Here is the vote count. Now county control over any proposed facility loosely based on “agriculture”, like the proposed application of a hazardous, toxic pesticide on wood products in Hardy County destined for export, will be permanently impaired. This is short-sighted legislation.

[1] West Virginia Code § 19-19-2 as amended.

Anyone who has been to Weirton in the last decade has seen the shuttered steel plant, with its miles of pipelines, squarely in the middle of town. Now there is new life and hope in Weirton thanks to Form Energy’s long-duration battery facility under construction at the steel plant site. Form Energy represents the new energy economy and what is possible for West Virginia.

Form Energy’s batteries harvest and store the electricity created when iron rusts. The long-duration storage batteries can discharge power for about 100 hours, providing needed electric grid stability. The Weirton plant will employ 750 workers in jobs integrated with the energy economy of the future, not in declining fossil fuel industries so typical in West Virginia.

This was a no-brainer for West Virginia, right? Well, no. Politics and downright ignorance conspired to jeopardize the whole deal. The Form Energy story highlights the need for West Virginia voters to elect candidates for office who are sensitive to climate-related issues and who welcome the economic opportunities that are available in the new energy economy.

West Virginia development authorities salivate over practically any potential industrial development. State and local tax credits are liberally used as inducements. The Rockwool plant in Jefferson County is an example. Rockwool’s sweet tax deal breezed through the state’s legislative and regulatory authorities.

Rockwool’s insulation may reduce energy costs, but Rockwool’s operations aren’t a part of the new energy economy. Rockwool uses use natural gas, which isn’t a “clean” fuel no matter what anyone says. Burning natural gas produces 117 pounds of CO₂ per million BTUs (compared with 200 for coal) and is responsible for much of the country’s methane pollution through leaks and accidents.

Yet the Form Energy deal was not as easily accomplished as the one for Rockwool. It required a legislative act to create a supplemental appropriation of $105 million to the state Economic Development Authority. No new taxes were necessary because of available surplus tax revenues from the previous year. Still it was opposed by some legislators.

HB 2882 was introduced in the West Virginia House of Delegates to authorize the supplemental appropriation. This bill passed the House by a vote of 69-25. Del. Bill Ridenour (Jefferson) frustrated climate activists and most of his Republican colleagues by voting No.

In the Senate critics questioned the use of taxpayer funds to support a “green energy” company. Sen. Rupie Phillips (Logan) called the deal a “pig with lipstick.” He argued that coal severance taxes supported the state’s finances and said, “This is coal money we’re giving to a woke company.” His attitude could be the poster child for self-defeating, extreme ideology.

Some Senators who should know better, such as Patricia Rucker (Jefferson), voted No. Other Senators, such as Mike Azinger (Wood) and Robert Karnes (Upshur), always vote against anything progressive. Nevertheless, HB 2882 passed the Senate 21-13 and was signed by Governor Justice.

In late 2022, Berkshire Hathaway Corporation announced a solar-powered micro-grid facility in Jackson County that will use renewable energy to run an aerospace industry manufacturing plant. This plant will be located in the long-shuttered Ravenswood aluminum plant.

Other manufacturing plants attracted to the site by the clean power available through the micro-grid are expected. A drive past the Berkshire Hathaway Ohio River site, now under construction, reveals a jaw-dropping scope. A similar sense is created by seeing the size of the Black Rock wind power project in Grant and Mineral counties.

Young West Virginians searching for a reason to stay in the state need look no further than career opportunities in the new energy economy. There is a bright future for our state if it embraces clean-energy technologies during the painful winding down of our coal and gas economy. This can only be done if policymakers in the Legislature and the State House get on board. It is our job as voters to ensure they do.

 

Conservation West Virginia, a nonpartisan environmental guardian, announces Fix It, a campaign to engage and empower younger voters who care about West Virginia’s climate to Vote Climate Action!

Vote to Keep Our Mountains Cool

Our goal is to elect conservation leaders to the West Virginia Legislature and state house. We will send a message to the politicians who are ignoring the effects of climate change.

Our plan is to mobilize younger voters in seven key counties by raising awareness of local climate issues and providing information on candidates and their positions on the issues.

We need volunteers to spread the word on campus, at work, and in the community.

Join us!
Instagram: @conservationwestvirginia
Web: conservewv.org
Email: vote@conservewv.org

On May 11, 2023, the EPA proposed new power plant emission regulations. Power plants produce 25% of all U.S. greenhouse gasses, so the sector is an obvious place to make progress. These proposed regulations, along with the Inflation Reduction Act’s huge investment in clean power and environmental protection and the EPA’s proposed regulation of tail pipe emissions, are the Biden Administration’s effort to address climate change.

The new regulations would virtually eliminate carbon dioxide emissions from power plants by 2040. They set caps on emissions that will go into effect in 2030 and rise gradually thereafter. However, they would not mandate the method plant operators can use to reach the new limits. One method to comply is to employ carbon capture technology, which is not in wide use in the U.S. because it is technologically complex and expensive. Despite claims of critics, the regulations do not require the use of this technology. Another way to meet the limits is switching to cleaner fuels like green hydrogen, which does not emit carbon.

Some inefficient coal plants may have to close as a result of the proposed regulations. But the proposed regulations will merely speed up changes in the industry that are already underway. About 25% of coal plants are already scheduled to retire by 2029 and 60% by 2040. No new coal plants have been built in the U.S. in the last decade because coal is the dirtiest fuel choice and renewable energy sources are fast becoming cheaper.

The Obama Administration’s attempts to regulate power plant emissions sought to replace coal plants with windfarms and solar installations, an approach the Supreme Court found was beyond EPA’s authority. But last summer the Supreme Court confirmed that the EPA had the authority to regulate carbon dioxide under the Clean Air Act. These new regulations are designed to withstand Court scrutiny by focusing on individual plant performance and avoiding mandates of any particular solution.

The new proposed rules will likely increase average utility bills by 2% by 2030, declining to less than 1% by 2040. However, EPA estimates that limiting pollution from power plants would produce a new economic benefit of up to $85 billion by 2042 through improved public health from lower levels of soot and sulfur dioxide. Limiting these pollutants would prevent 1,300 premature deaths, more than 30,000 asthma attacks and 66,000 lost workdays.

West Virginia politicians are already howling in protest, threatening lawsuits and more. Sen. Joe Manchin threatens to block every Biden Administration nominee to EPA unless the Administration drops the proposed regulations. In Senate financial disclosures, Manchin reported making roughly $2.5 million from 2017 through 2021 from stock he owns in Enersystems Inc., the coal brokerage he founded.  But he says this has nothing to do with his political choices.

This outburst from the West Virginia political establishment seems like posturing for a political audience. Our political leaders should have the maturity to take a reasonable position that balances the need for greenhouse gas reduction, the need for technical and economic feasibility in the methods for doing so, and the need to support our coal communities.

Carbon offset agreements are private contracts between emitters of greenhouse gasses and owners of forested lands. These lands act as a natural carbon sink. West Virginia’s trees remove carbon dioxide from the atmosphere and convert the carbon to wood fiber while releasing oxygen back into the atmosphere. When utilized in long-term wood products such as lumber, that wood fiber stores the carbon from the atmosphere over many years. Carbon dioxide emitters pay landowners not to cut the carbon absorbing timber on their lands. In exchange the producers get carbon credits against pledges to de-carbonize operations or in carbon markets.

More than 12 million acres of forestland stretch across West Virginia, covering 79% of the state. It’s the third-most heavily forested state in the nation, making it prime real estate for carbon offsets. Currently, the participants in these carbon offset agreements are not required to report the existence of the agreements to the state. That didn’t stop Peter Shirley, director of the West Virginia Legislature Division of Regulatory and Fiscal Affairs, from telling the Legislature last year that active forest carbon offset projects covered at least 616,044 acres across 14 counties in the southern and central parts of the state.

Somehow these agreements are such a threat that HB 3294 was proposed last session to discourage them. The concern seems to be two-fold: potential state revenue reduction and the potential abuse of landowners who don’t understand the agreements. The bill would have limited the term of such agreements to 20 years, with the possibility of renewal for another 20 years, and would have imposed an excise tax of 30%  on the amount of the payment to the landowner. The carbon emitter would be required to pay the tax.

The bill was opposed by environmental groups, the West Virginia Farm Bureau and property owners’ groups as a threat to a legitimate income stream for farmers and forest property owners, and an obvious incursion into the freedom to direct the use of one’s own land. Perhaps most importantly, carbon offset agreements are a market-based device to reach carbon neutrality and should be encouraged. Conservation West Virginia opposed HB 3294 and, fortunately it died in the Finance committee.

However, just before the session ended a bill to impose a moratorium on contracts limiting timber harvesting was introduced in the Senate. SB 739 only covered contracts related to carbon capture, storage or sequestration. The bill’s sponsor, Eric Tarr (R-Putnam), claimed that there was “an emergency” because these contracts hindered timbering and potentially coal and gas severance. Although passing the Senate unanimously, the House amended the bill slightly and the Senate did not have enough time to concur — and may not have. At present there is no moratorium on carbon offset agreements.

Just exactly how to integrate carbon offset agreements and the state’s Managed Timberland Program will be a topic raised in the next legislative session. In 1946, the Forestry Amendment to the West Virginia Constitution was ratified, which was intended to provide for cooperation by contract between the State and the landowner in the planting, cultivation, protection, and harvesting of forest lands. Forest lands that were included in any such contract could be exempted from the full normal rate of taxation for timber property.

Recently, the Post Audit Division of the Legislative Auditor produced a report on the Managed Timberland Program and identified carbon capture agreements as a potential problem because some of these agreements restrict timbering completely. If the owner of a property participating in the Program also has a carbon capture agreement forbidding timbering, the owner would be in violation of the Program terms. The report estimates that there are 12.2 million acres of forest land in the state, 2.6 million acres of which are under a Managed Timberland Program agreement. Known carbon capture acres total 616,044 — although part of the problem is the state isn’t notified of the existence or terms of carbon capture agreements.

The report suggests that the Legislature could modify the statutory structure to classify carbon capture agreements as “deed restrictions” just as a conservation easement, thereby rendering land subject to a carbon capture agreement ineligible for the Managed Timberland Program. Conservationists and land owners should brace for this approach, which will surely be attempted by legislators hostile to addressing climate change.

Perhaps the way around this issue is to recognize those carbon capture agreements that still permit timbering and reforestation as eligible for the Program. The Post Audit Report itself states that “sustainable forest management practices, such as selective logging and replanting, can maintain
or even increase the carbon sequestration capacity of a forest over the long term. By replanting
trees or allowing for the natural regeneration of the forest, it is possible to offset carbon emissions
while also providing economic benefits to the landowner.”

The Nature Conservancy says that 80 percent of all forest harvesting in West Virginia is via “high grading,” a poor management technique that removes only the best timber from a forest, and therefore degrades carbon stocks, timber quality and wildlife habitat over time. The Conservancy operates several programs designed to help timber owners, both large and small, manage their forest lands profitably while also helping owners participate in carbon markets through offset agreements. Many carbon offset agreements still allow timber harvesting.

PFAS is an acronym used as shorthand for several related synthetic chemical compounds. These compounds have unique properties that make them highly stable and resistant to degradation in  the environment. For that reason PFAS are called “forever chemicals.” Recently we have discovered that humans have PFAS in our bodies through all sorts of ingestion, from using non-stick skillets to dental floss covered in smooth film. Scientific evidence indicates that several serious health problems can result, such as poor fetal growth, compromised liver, thyroid and immune functions and increased risk of certain cancers.

One major and preventable source of PFAS exposure is our drinking water. Identifying the location, source and amount of PFAS in West Virginia drinking water has occupied the legislature and state public health agencies over the last three years. Recently the federal EPA proposed very low drinking water standards for PFAS under the Safe Drinking Water Act.

The Background in West Virginia

Public consciousness of PFAS awakened after the 2019 film “Dark Waters,” which exposed years of unlawful PFAS pollution of the Ohio River by DuPont near Parkersburg, West Virginia and followed the subsequent lawsuit to hold the company accountable.

Environmental activists both in and outside West Virginia government recognized the danger and sought a legislative solution. In 2020 the Legislature passed SCR 46 requesting a study of all raw drinking water sources for possible PFAS pollution. The US Geological Survey was contracted to perform this research.

The  USGS reported that between 2019 and 2021 PFAS had been detected above the then-current EPA drinking water health advisory in 13% of the West Virginia raw water sources sampled. Before USGS could update this research, the EPA issued new health advisories for four PFAS compounds.

The USGS’s updated research was completed in June 2022 with a Report on PFAS in West Virginia groundwater and surface water sources used for public drinking water. This was raw water, not water after treatment. Nevertheless, the result was shocking. The Report disclosed that PFAS was found in levels above the new EPA standards in 130 community water systems used to supply drinking water to roughly 700,000 West Virginians. This was 49% of the raw water sources sampled.  The heaviest concentrations of these contaminated water supplies was along the Ohio River and in the Eastern Panhandle.

Legislative Response in 2023

The 2023 West Virginia Legislature, which concluded its regular session in March 2023, took action. A coalition of Republicans and Democrats passed HB 3189. The effort was led by Del. Evan Hansen of Monongalia. The thrust of the new law is to identify the sources of PFAS in drinking water so that an effective remediation can be developed.

HB 3189 directs the West Virginia Department of Environmental Protection to develop action plans to identify and address PFAS sources in drinking water on a relatively tight time schedule, depending on the level of PFAS found in the water source. It also directs manufacturers who discharge into surface water to report the use of PFAS in their operations. Quarterly monitoring of PFAS levels at those facilities will follow.

The key to this monitoring is that when the EPA issues final water quality criteria under the Clean Water Act for any PFAS, DEP is directed to develop a legislative rule adopting criteria for industrial discharge permits no more stringent than the federal standards, but likely to be identical to those standards.

But here is the important point: the new West Virginia legislation does not require DEP or any other state agency to begin removing PFAS now. Some critics wonder aloud what more is needed for action in the Mountain State to remove pollutants known for 22 years to be harmful.

Federal EPA Action

On March 14, 2023, EPA announced the proposed National Primary Drinking Water Regulation for six PFAS compounds. This proposed Regulation requires no action until it is final, which should be before the end of 2023. The proposed Regulation will establish legally enforceable maximum contaminant levels for the PFAS, which for the two most prevalent compounds will be zero. The Regulation will also require monitoring and notification to the public of PFAS levels and reduction of excessive levels of PFAS where found.

To help communities on the frontline of PFAS contamination, the Biden Administration’s Infrastructure Investment and Jobs Act invests $11.7B in the Drinking Water State Revolving Fund and $9B in additional money to help communities deal with “emerging contaminants,” especially small and disadvantaged communities of which there are many in West Virginia.

Recent Update

On May 12, 2023, the Department of Health and Human Resources and DEP announced that 27 of 37 public water systems sampled (post-treatment) showed detectable levels of some PFAS. Of these 27, PFAS levels above at least one of the  EPA proposed standards were found in 19. Dr. Matthew Christiansen, state Health Officer, said that the new sampling results did not call for do-not-consume orders, but that those concerned could use home filtration systems that address PFAS.

In West Virginia, environmentalists need to be realistic about how far the state can depart from fossil fuel power generation. Much of the state’s economy and many jobs are tied up in fossil fuels, both coal and natural gas. Currently, West Virginia relies on coal far more than any other state in the nation for electricity generation. Coal comprised 91% of the state’s electricity generation in 2021, well above Missouri, the next heaviest user of coal. All this is cemented by the powerful fossil fuel lobbies.

But competition between coal and gas interests, as well as the inevitable decline of coal, are leading some legislators to nudge the state toward more use of relatively cleaner natural gas.  West Virginia is the nation’s fourth-largest producer of natural gas, but only 4% of the state’s electricity generation in 2021 was gas-generated.  Proponents of gas generation complain that West Virginia offers fewer sites for gas power plants than surrounding states.  This “state-vs.-state” competition argument always seems to have particular persuasiveness with West Virginia legislators.  But the coal industry is pushing back against any favoring of gas.

SB 188, sponsored by Sen. Charles Trump (R-Morgan), would direct the Department of Economic Development Secretary to identify and designate sites considered appropriate for natural gas electric generation projects. An amendment offered by Sen. David Stover (R-Wyoming) to include coal in this site designation process was defeated in the Senate Economic Development Committee. The bill would also expedite the approval process for new plants.

SB 188 is backed by the West Virginia Manufacturer’s Association and the gas industry.  Conservation West Virginia has taken no position.  We favor shifting to cleaner fuel sources, even cleaner gas fuel over coal.  We recognize that increasing natural gas power generation would lower greenhouse gas emissions. But we are concerned by the unduly fast approval processes mandated for gas plant applications in SB 188, which we think will not allow opponents of a particular site a fair chance at influencing the decision.

As of February 17, SB 177 is only a few steps away from the Governor’s desk.