MORGANTOWN – Monongalia County’s newest state senator – Republican Chris Rose – is also the new chair of the Senate Energy, Industry and Mining Committee and introduced three energy-related bills on the second day of the legislative session.
One resurrects a 2024 bill to raise the property tax on windmills. One creates a state Coal Marketing Program. And one aims to curb federal regulation of intrastate energy commerce.
Rose’s SB 439 reintroduces last year’s SB 231, which was sponsored by Sen. Randy Smith, R-Tucker, who was Energy chair and is now Senate president.
Wind turbines and towers are currently considered pollution control facilities and taxed as personal property at salvage value – 5% of the original cost based on 79% of the full value of the property. That 5% figure depreciates annually.
SB 439 would change that to tax wind turbines and towers and the attached components as real property. A fiscal note with last year’s bill says it would produce $6.1 million in additional annual revenue: $1.8 million for the General Fund, $2.5 million to the county schools and $1.8 million to the county commissions.
The bill passed out of Energy last year. Smith said then that his aim was to get the bill out of committee and on to Finance where the various stakeholders – the counties, the windmill companies and so on – could work out a compromise bill that might do such things as grandfather existing facilities.
SB 231 died in Finance. SB 439 again goes first to Energy and then to Finance.
Rose’s SB 437 would create the Coal Marketing Program. The introduced version of the bill is short – about a page and a half – and broad. It says, “The purpose of the program is to protect and expand West Virginia’s coal markets and coal facilities and to address impacts cities, towns, and counties have experienced or will experience due to changes in the coal market.”
This might remind some of the 2021 House of Delegates Coal Communities Workgroup, whose goal was “to go into communities and talk with local residents as well as local community and business leaders, to determine what our coal communities specifically need to succeed and what tools are already available.” The workgroup produced a report in January 2022 that is largely forgotten.
This bill takes a different approach. It appropriates $1 million from the General Fund for the program account, to be spent by the governor, on “projects with a public benefit associated with expanding and protecting West Virginia’s coal markets and coal facilities,” and projects addressing the impacts described above.
It requires that the state attorney general sign off on the legality of any expenditure. It also calls for the governor’s office to draft the rules to govern the program – a departure from the usual process where agencies draft rules for legislative approval.
The bill is single-referenced to Energy and would go to the Senate floor if approved there.
Rose’s SB 438 is called the West Virginia Intrastate Energy Use Act. It cites rights reserved to the state in the 9th and 10th amendments to the U.S. Constitution to declare, “Regulation of intrastate commerce, including the environmental impact of such activities, falls under the states’ jurisdiction.”
It specifies regulation of coal, oil and natural gas where they are produced, consumed or retained within the state borders, including fossil fuel power plants..It reserves permitting power to the state “Department of Energy.”
There is no such department. There is an Office of Energy under the state Department of Economic Development. It role is “the formulation and implementation of fossil, renewable and energy efficiency initiatives designed to advance energy resource development opportunities and provide energy services to businesses, communities and homeowners in West Virginia.”
The state Department of Environmental Protection handles all mineral extraction permitting.
The bill says the U.S. EPA has no authority to regulate intrastate commerce.
The bill echoes to some extent a 2016 House bill, the Intrastate Coal and Use Act, which also cited the 9th and 10th Amendments.
That bill said that any coal mined in West Virginia and used exclusively in West Virginia would be subject to regulation and oversight only by the DEP. The U.S. Environmental Protection Agency had no jurisdiction under federal interstate commerce laws to regulate this coal.
That bill passed out of House Energy but died in Judiciary.
SB 438 is single referenced to Judiciary. It doesn’t mention but touches on the Biden administration EPA Good Neighbor Rule (also called the Good Neighbor Plan), which was put on hold by the U.S. Supreme Court last June.
The rule would have required power plants in 22 states to further reduce their emissions by 2027. The Biden EPA projected the plan could lead to retirement of 13% of current national coal-fired generating capacity.
The rule was a new version of the Cross-State Air Pollution Rule issued under the Clean Air Act’s Good Neighbor requirements, dealing with emissions that cross state lines. West Virginia was one of three states that challenged the rule. The Supreme Court pause returned it to a lower court to allow legal challenges to play out.
An independent publication called SCOTUSBlog cited the majority opinion acknowledging that the plan would improve the air quality in downwind states but could infringe on the states’ interests “in regulating their own industries and citizens.” And requiring the challengers to comply with the plan while litigation continues could cost them “hundreds of millions, if not billions of dollars.”
The Dominion Post reached out to Rose and Smith for comment on the three bills, but neither was available by deadline.
