A West Virginia lawmaker says if the coal is mined and used in West Virginia and never leaves the state's borders, the federal government should have no say in the permitting process.
Del. Gary Howell, R-Mineral, is reintroducing his Intrastate Coal and Use Act. The bill would say that the West Virginia Department of Environmental Protection would be the sole entity to permit mines where the coal is produced, sold and used within the state.
In 2010, West Virginia shipped about 79 percent of its coal to other states. Of the electricity that is produced in the state, about 56 percent was consumed in other states.
"The federal government has overstepped its constitutional authority," Howell said in a prepared statement. "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. 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."
According to Howell's press release, his argument about the constitutionality of federal jurisdiction over non-interstate commerce has attracted praise from constitutional attorneys. Nick Dranias, director of the Center for Constitutional Government at the Goldwater Institute, said Howell's legislation "stands a chance of vindicating state sovereignty because it exerts powers traditionally recognized as within the powers reserved exclusively to the states."
The DEP, Howell said, would still be required to actually meet the standards set forth by federal law. Many in the mining and coal industry reacted favorably to the bill, particularly in light of a the EPA veto of a large surface mine permit called the Spruce mine. That decision has since been overturned by a federal judge.
"Delegate Howell's legislation presents a creative way of getting around the strangle-hold 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 Chris Hamilton West Virginia Coal Association senior vice president.
The bill was first introduced in 2011, but failed to pass. Similar versions of the bill were introduced in the Senate and by House Democrats.
Currently, the EPA has the right of review. Basically, the state is responsible for almost all parts of the permitting process, but the EPA is allowed to reject the permit if it does not meet standards set forth by the Clean Water Act.
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