A new lawsuit brought by environmental groups raises the alarm over the solvency of a fund that can be used to clean up coal mining operations when mining companies walk away.
Three groups — the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Sierra Club — filed the citizen’s suit Thursday against the West Virginia Department of Environmental Protection and its secretary, Austin Caperton.
The complaint alleges the agency violated federal mining laws by failing to alert federal mine regulators that recent actions jeopardize the state’s Special Reclamation Fund.
“The WVDEP has failed to properly manage its reclamation program, which has led to a dire situation, one in which there is not enough money to clean up mines abandoned by their insolvent operators,” said Karan Ireland, senior campaign representative with the West Virginia Sierra Club.
The solvency of the state’s Special Reclamation Fund and bonding program have long drawn criticism over whether they would be sufficient to cover all of the reclamation work needed across the state.
The lawsuit draws largely from the court actions the DEP took in March against ERP. In an emergency motion the agency wrote that transferring the company’s more than 100 permits to the state’s Special Reclamation Fund “would overwhelm the fund both financially and administratively, with the result that the actual reclamation and remediation of the ERP mining sites could be delayed.”
According to a Jan. 9, 2020 report to the West Virginia Legislature, as of Sept. 30, 2019, the Special Reclamation Fund had just over $58 million in cash and investments. It is funded by a 12.9 cent tax per ton of coal mined in West Virginia.
A spokesperson for the DEP said the agency “cannot discuss pending litigation and cannot comment at this time.”
A study released earlier this week about the potential of the Utica Shale formation was met with praise from the Consumer Energy Alliance. But the West Virginia Sierra Club doesn’t share that enthusiasm.
The Utica Shale Play Book Study released on Tuesday says there may be 20 times as much recoverable gas and twice as much recoverable oil in the Utica Shale formation as was previously thought.
Brydon Ross was very excited to hear the news.
“And it’s great news, it really is. It’s fantastic news, even if it’s 50 percent right,” he said.
Ross is the vice president of state affairs with the Consumer Energy Alliance, a nonprofit group that bills itself as an advocate for energy consumers with ties to the energy industry.
“For companies and industries that are looking to invest in the Utica Shale area and all through Appalachia as well, I mean you’re talking about areas that really need the money and need the investment is right where a lot of this resource potential is, so we see this as nothing but positive,” he said.
The Utica Shale runs under parts of five states, including northern West Virginia and Kentucky, eastern Ohio, Pennsylvania and New York.
Sierra Club
Not everyone agrees that looking for more fossil fuels is the way to go. Jim Kotcon deals with energy issues for the West Virginia chapter of the Sierra Club. He says the emphasis on hydro-carbon extraction is misplaced.
“We cannot use all of the reserves we’ve already found without very serious adverse affects from climate change. And so if we’re going to control the increase in temperature from climate change, then finding more gas won’t help us,” Kotcon said.
Fracking Potential
The West Virginia Geological and Economic Survey in Morgantown was one of four state geological survey groups that contributed to the Utica Shale Play Book Study.
Michael Hohn is the Survey’s director. He said that eastern Ohio and western Pennsylvania could see new hydraulic fracturing well pads developed as a result of the new Utica Shale study. But because many fracking wells can be drilled on one pad and the fact that the Utica Shale formation lies below the Marcellus Shale in West Virginia, Hohn says companies can use existing well pads to tap into the Utica.
“So, more wells in West Virginia, but the footprint will be similar to the Marcellus,” Hohn said.
But more fracking activity isn’t a good thing, according to Kotcon. He said the government isn’t doing a good enough job of regulating existing fracking operations.
“As a result, many of the local communities, although they benefit financially, are seeing some very significant adverse effects,” Kotcon said.
Hey said those effects include things like air and water pollution, increased truck traffic and the resulting damage to roads.
Ross disagrees. He said the fracking industry is being regulated properly.
“You can have economic development, energy security without harming your environment. We think this study is nothing but good news for the people of the Utica Shale area as well, who frankly need the investment and need the jobs and the money,” Ross said.
Either way, it appears the energy industry is quickly moving toward natural gas. SNL Financial issued a report earlier this week that shows natural gas overtook coal as the top source of U.S. electric power generation for the first time ever in April.
In the first days of the 2015 Legislative session, energy was the focus of legislators’ attention. A bill that first began as a total repeal of the alternative and renewable energy portfolio act soon became only a partial repeal as lawmakers’ attempted to leave in place current net metering standards.
Those standards govern the way solar energy is calculated and credited between a customer and an electric company. As the legislative session progressed, however, another bill relating to those same net metering standards came to lawmakers’ desks. The overall opinion of the new bill, which has been signed into law, is mixed.
The Bolivar-Harpers Ferry Public Library in the Eastern Panhandle had solar panels installed on their roof in January and in just a few short months has already started seeing the benefits.
Gretchen Frye is the director of the Bolivar-Harpers Ferry Public Library, and she says in March, the library saw an 8% decrease in its electric bill which can make a big difference for libraries who struggle for funding.
Credit Liz McCormick / West Virginia Public Broadcasting
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West Virginia Public Broadcasting
The back of Bolivar-Harpers Ferry Public Library and its set of solar panels.
“Libraries face, you know, budget crunches, and in our experience libraries, the demand for libraries continues to increase, but at the same time our budgets are staying the same or are even decreasing,” Frye explained, “so, we, this is a creative way for us to save some money for the library and help the environment at the same time.”
Frye says as the weather gets better she expects their electric bill to continue to drop.
Mountain View Solar installed the library’s solar panels. Located in Berkeley Springs, it’s the largest solar installation company in the state. Mike McKechnie is the company’s president and he explains one of the major differences between buildings that use rooftop solar and buildings that don’t is the way the electricity generated is metered.
“Everybody has an electric meter on their house, and it usually spins in one direction,” McKechnie said, “It counts the number of kilowatts, the amount of power that you’re using, they read it at the end of the month and they send you a bill, you pay the bill, and you get to do that happy event every month for the rest of your life,”
Homes with solar panels use a different meter though called a net meter.
“Net metering is where a new meter gets put on that spins both directions,” he explained, “When I’m buying power, let’s say you’re buying power at your house, you’re spending money on your bill, because you’re buying power, well if you’ve got solar on your house, you might be making all the power that your house is using, and you’re making excess. The power goes back to the utility meter and spins the opposite direction.”
That excess power is collected from the homes where it’s generated, returned to the power grid and ultimately sold by the power companies. Instead of being paid for generating power, net metering rules written by the state’s Public Service Commission in 2011 dictated solar customers receive a credit for the power they generate. They can then use the credit to buy power from the utility when they generate less than they need.
Those rules, however, were part of the state’s alternative and renewable energy portfolio act, an act that was repealed this session. Democratic Senator Herb Snyder of Jefferson County was one of many lawmakers concerned with the repeal.
“I think it was a step backwards,” Snyder noted, “that most states have an energy portfolio, we’re an energy state, so it just seems to be ridiculous not to have an energy portfolio, that’s why then Governor Manchin, now US Senator Manchin, did that; to make a collage of energy sources.”
Credit Liz McCormick / West Virginia Public Broadcasting
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West Virginia Public Broadcasting
Inside the Bolivar-Harpers Ferry Public Library.
The alternative and renewable energy portfolio called on electric companies in West Virginia to produce 25 percent of their electricity with alternative and renewable sources by 2025.
But this session, lobbyists from the coal industry told lawmakers the standards were hurting the mining industry, even though utilities testified they were already meeting the production standards. As the bill began to move through the process, Snyder and other members of the Eastern Panhandle lobby grew more concerned that a repeal of the portfolio would result in a repeal of the net metering rules that protected solar panel owners.
“I immediately picked it up and said we really don’t want to do this, so instead of trying to carve that out of the original repeal, they originated another bill to put that back in code,” Snyder said.
House Bill 2201 was meant to do just that; put those rules back in code. Approved and signed into law, the bill requires the state PSC to rewrite the net metering standards.
McKechnie says he and other solar energy advocates are not happy with the bill. McKechnie believes the large utility companies want the PSC to rewrite the rules to uproot rooftop solar by charging the ratepayer more money without receiving credits for the energy they are producing.
“This attack with 2201 is about trying to impose an additional cost to everyone that has a net meter,” McKechnie said, “Why would you direct the Public Service Commission to look at the cost only of a new generation facility without the benefit to the ratepayer?”
Credit Liz McCormick / West Virginia Public Broadcasting
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West Virginia Public Broadcasting
Backup batteries inside Mountain View Solar.
Senator Snyder however supported the bill after hearing from those companies in committee meetings before the bill’s passage.
“The power companies are saying, positively, and my question in committee, I put them on the spot, is, are you going to increase the fees or costs to homeowners and small libraries and so forth, and they said positively not, no, now I have to take them at their word on that for something I’m not an expert on,” Snyder said.
Snyder says as it was explained to him, the additional cost will come for some solar producers, but those are producers with large solar farms, not homeowners with smaller numbers of panels.
“They’re looking predominantly at the larger solar farms that are owned by probably investors, one or many, to build these power generation units solely for the sake of selling power onto the grid,” he explained.
Snyder says installing the net meters into these large facilities can be costly and utilities want to ensure that under the new rules those costs won’t be passed along to the consumers, whether they produce solar power or not.
Jim Kotcon is the Chair for the Energy Committee in the West Virginia Chapter of the Sierra Club, a group that advocates for solar and other renewable energies. Kotcon says the Sierra Club would like to see net metering expanded under the new PSC rules.
“One of the things that we think would be important is to actually try to expand net metering and the opportunities for homeowners to put on solar panels or wind generation and other types of renewable energy,” said Kotcon, “We think that the market is moving this direction very quickly, much more quickly than the utilities are able to adjust too. And we’d like to see the utilities sit down and develop the kinds of plans that would be needed to help transition our electric industry into something that will take advantage of renewable energy much more easily.”
Senator Snyder, however, says he thinks once the Public Service Commission evaluates the current net metering standards; it’s likely those standards will stay as they are.
Environmental and citizen groups are urging Gov. Earl Ray Tomblin to rethink leasing land under the Ohio River for oil and natural gas drilling.
In a letter Wednesday, Ohio and West Virginia groups expressed concerns that the state won’t sufficiently safeguard against releases that could harm water supplies.
Groups said more than 5 million people use the Ohio for drinking water.
Until Sept. 25, the state is taking bids on the rights to the reserves below 22 miles of the river. The sections are in Pleasants, Marshall and Wetzel counties.
Eight groups signed the letter. Some include the Ohio Valley Environmental Coalition, Concerned Citizens Ohio, West Virginia Sierra Club chapter and FreshWater Accountability Project.
The state will require a minimum 20 percent or one-fifth of oil and drilling royalties.
