Clean Water Advocacy - Newsroom - AMSA in the News
Clean streams Lawmakers, industry should support policy to protect state
Jeremy P. Muller
ON Aug. 29, U.S. Judge Joseph R. Goodwin handed down his opinion on a lawsuit
concerning West Virginia's river and stream protections. He found that crucial
provisions of the state government's policy are illegal and do not comply with
federal law. "Lead"> This marked the first time an anti-degradation policy was
successfully challenged at the federal level. In his ruling, Judge Goodwin said:
"West Virginia's regulations simply fail to require the minimum protections
required by [U.S.] regulation." It means that a good portion of the clean
streams policy developed by the West Virginia Department of Environmental
Protection (DEP) with a coalition of industry and business associations failed
to meet the requirements of federal law and the Clean Water Act.
The policy in question is termed "anti-degradation implementation procedures"
and is intended to keep clean streams clean and prevent polluted ones from being
polluted further. Anti-degradation is a review of a proposed polluting activity
that ensures the activity benefits the public and not just the polluter. It is
required by U.S. law, and until 2001, West Virginia had failed to comply for
roughly 30 years.
In 1999, a two-year debacle began which led to the clean streams policy in
question being drafted. The West Virginia Rivers Coalition filed a notice of
intent to sue over West Virginia's lack of anti-degradation implementation
procedures. In reaction, a policy was developed under the West Virginia
Environmental Quality Board by an industry and state agency-laden stakeholder
committee.
That policy was summarily thrown out for being too protective by the Legislature
the day before the 2001 session opened. Next, an industry coalition wrote one
that was so weak it could not have received federal approval. Finally, DEP and
the industry coalition crafted a policy late at night in the waning days of the
session and the Legislature passed it. The U.S. Environmental Protection Agency
approved that policy.
The Ohio Valley Environmental Coalition, West Virginia Rivers Coalition and 27
additional organizations and individuals promptly filed suit in federal court.
Represented by attorneys Joe Lovett of the Appalachian Center for the Economy
and the Environment, and Jim Hecker of Trial Lawyers for Public Justice, they
said the policy did not meet federal requirements.
Throughout this two-year time-frame, a substantial coalition united in
opposition to protections for our rivers and streams. This group was commonly
referred to as an "industry" coalition. However, "industry" casts a much
narrower net than the coalition's composition suggests.
Those against protecting West Virginia's rivers and streams, and who sided with
EPA and DEP during the litigation, include the West Virginia Chamber of
Commerce, the West Virginia Hospitality and Travel Association, the West
Virginia Farm Bureau, the West Virginia Municipal Water Quality Association, the
West Virginia Manufacturers Association, the West Virginia Forestry Association,
the Contractors Association of West Virginia, the West Virginia Municipal
League, the Association of Metropolitan Sewerage Agencies, the Independent Oil
and Gas Association of West Virginia, the West Virginia Oil and Natural Gas
Association, and, of course, the West Virginia Coal Association.
The mantra oft repeated by this coalition was that "environmental protections
will shut down business in West Virginia." An amusing scenario, since the pro-
business Bush administration has done a fine job shutting down business in West
Virginia and across the nation while weakening environmental protections.
Nevertheless, for all of industry's lamenting on the fate of West Virginia if
they didn't get the policy they needed, the state and industry got what their
efforts deserved - a failing grade in the U.S. judge's ruling.
The point is this: Despite their rhetoric, posturing and hyperbole, industry and
the state government failed to develop a policy that complied with U.S. law. Now
we are back at square one. West Virginia has no anti-degradation policy, yet has
spent untold dollars in state agency staff time and legal costs.
This appears to be a common occurrence in the Mountain State. Unwilling to say
"no" to big business, out-of-state corporations and notorious polluters, our
elected officials think they need not comply with federal law. Lawsuits have
been filed over anti-degradation, over river clean-up plans, over mountaintop
removal mining. The list goes on. The common thread is that in all of these
cases, the state was not complying with U.S. law.
This rogue mindset hampers West Virginia's growth and development, and should
not be coming from our most elevated elected officials. The lack of an anti-
degradation policy could throw manufacturing, construction, mining and small
business permitting issues into confusion, as permits granted by the state
without an anti-degradation review may be challenged in court for failing to
follow federal law.
Confusion in the permitting process is something that industry has repeatedly
decried as a problem impeding economic development. Yet it is a situation they
themselves have created. It makes industry's calls for certainty in the
regulatory process sound hollow, just like their bemoaning that environmental
regulations will put them out of business.
So, four-plus years after the initial notice of intent to sue over anti-
degradation was filed, we are wondering why industry and business interests so
vehemently push to weaken environmental laws intended to protect West
Virginians, the state as a whole, its resources, and even its economy - four
things industry and business proclaim to support.
But, more importantly, we are wondering why West Virginia's elected officials
continually bow down to industry and pass laws with a narrow focus and short-
term gains, instead of looking at the broader picture and long-term
consequences. Passing an anti-degradation policy that complied with federal law
would have saved West Virginia hundreds of thousands if not millions of dollars;
it would have instituted some certainty in the permitting process, and protected
a most valuable and sought after resource, clean water.
We who live, work and play along and in West Virginia's exceptional rivers and
streams should all consider Judge Goodwin's ruling a resounding victory. It puts
the state on a path to truly protect West Virginia's water. It also demonstrates
the need for organizations and individuals to work for compliance with federal
environmental laws, and specifically the Clean Water Act.
We hope that our elected officials, both current and future, will learn from the
mistakes of the past and put West Virginia on a progressive track for the
future. We also look forward to the opportunity to work with them toward that
goal.
Muller is executive director of the West Virginia Rivers Coalition,
headquartered in Elkins.