Law Scholars Question State's Next Steps After Roe

The Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization returns decision-making power on abortions to the states. But it's unclear what that means in West Virginia.

The Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization returns decision-making power on abortions to the states. But it’s unclear what that means in West Virginia.

Passed in 1848 as a Virginia law, West Virginia §61-2-8 makes receiving or performing abortions a felony, punishable by three to 10 years in prison.

Some say that Friday’s ruling automatically puts §61-2-8 back in force. However, West Virginia University College of Law Professor Anne Lofaso says the law remains unenforceable at this time.

“When Roe v. Wade came down in 1973, within a year this law was challenged in court and said ‘You can’t enforce this law because of Roe v. Wade,’” Lofaso said.

Lofaso is the co-founder of WVU’s U.S. Supreme Court Clinic. She says the West Virginia law doesn’t qualify as a trigger law, because the injunction remains in place even if Roe was overturned.

“That law is still good,” Lofaso said. “It’s on the books, but it’s been enjoined, which means it can’t be enforced. So the next question is, will the attorney general try and go to courts and lift the injunction?”

Lofaso said one of the other options is to allow the state legislature to clarify the issue.

In a statement, Attorney General Patrick Morrisey said he will provide a legal opinion to the Legislature about how it should proceed.

If Morrisey does choose to go to the courts, there are several legal avenues available to him.

Via e-mail, WVU College of Law Professor Robert Bastress said the attorney general could bring a mandamus to either a circuit court or the state’s Supreme Court to compel enforcement of the statute.

A mandamus is a judicial writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty.

“Or (Morrisey) could file a declaratory judgment claim in a circuit court seeking a ruling that the old law is enforceable,” Bastress said.

Further complicating the issue is a 2018 amendment to the state’s Constitution.

“Amendment One, which is now under Article Five, section 57 in the West Virginia Constitution, says nothing in this constitution secures or protects a right to abortion or requires funding of abortion,” Lofaso said.

Even if West Virginia’s law is unenforceable for the moment, the impact of the ruling is already being felt in the state. Within hours of the court’s ruling, Katie Quinonez, the executive director of Women’s Health Center of West Virginia, released a statement saying that it was now impossible for the clinic to provide abortions.

“They’re being chilled, because who wants to perform an abortion and then go to jail for 10 years,” Lofaso said. “It’s not safe for them at this point in terms of, they don’t want to commit a crime.”

Lofaso said it is possible both the West Virginia legislature and Congress may make exceptions for abortions in cases of risk of life to the mother in future legislation. However, she believes it is exceedingly unlikely that the protections that Roe v. Wade provided will be codified at any level of government.

WVU Moot Court Contest to Tackle Interstate Pipeline Case

Law students will tackle interstate pipeline issues at the sixth annual National Energy and Sustainability Moot Court Competition in Morgantown.

The three-day competition starts Thursday at West Virginia University’s Erickson Alumni Center. The competition is being hosted by the WVU College of Law.

Twenty-three teams from across the country are competing.

This year, students will sharpen their skills on legal problems faced by an environmental group’s appeal of a federally approved interstate natural gas pipeline. Allegations include violations of environmental and endangered species acts.

The case problem was written by Laura Griffin, a WVU energy and environmental law and policy fellow.

With New Regulations Coming, What's the Future for Coal?

The Environmental Protection Agency is going to be releasing new rules on carbon emissions from coal-fired power plants in the next few weeks. It’s an issue of great concern for many who rely on coal for work. But some also see it as an opportunity.

About 84 percent of the nation’s total greenhouse gas emissions into Earth’s atmosphere are from carbon dioxide, according to the Environmental Protection Agency, and much of that carbon dioxide comes from burning fossil fuels like coal. The EPA is taking action as, under the Clean Air Act, to enforce cuts in carbon emissions for cleaner air.

In September of last year, the agency put proposed new rules on how much carbon dioxide future power plants may release into the air. This includes capping carbon dioxide emissions to about 1,100 pounds of CO2 per megawatt hour, depending on the size of the turbines in those new plants.

New Rules on the Horizon

While at this point, everything is conjecture in terms of what the agency will seek in its newest regulations, pertaining to existing power plants  it is expected that states will have to figure out ways to reduce carbon emissions from their plants substantially in the next 15 years.

There are several ideas over how this can be done, but it certainly won’t be easy for many utilities to reduce emissions right away. One strategy is to do something known as fuel switching. This essentially means instead of burning coal at power plants, technical adjustments would be made to the plant so the facility would essentially burn natural gas instead, or co-fire coal with natural gas, to reduce carbon dioxide emissions.

“Some coal plants depending on the technology and the vintage can be switched to burn natural gas. A lot of utilities are looking at this,” said James Van Nostrand, director of the Center for Energy and Sustainable Development at WVU.

“That’s going on now with the wide availability of natural gas, utilities are doing that for economic reasons. That would also presumably will be a compliance option under these regulations. Or you could co-fire some natural gas with the coal, or biomass with the coal.”

Another proposal the EPA is pursuing is for utilities to use carbon capture and storage technologies. This is a method that involves taking the carbon emissions and storing them underground, instead of releasing them into the atmosphere. It’s something American Electric Power tried at a Southern West Virginia plant a few years back: essentially storing the carbon right there at the site, and the whole project took eight years simply to get  up and running. But it didn’t work out in the end. Jeffrey La Fleur is a vice president of generating assets at AEP.

The debate in Congress ended, and they decided not to take up the carbon issue. That debate stopped. We got the stagnation in public policy; the carbon issue got stuck in the mud. Nothing was moving,” said La Fleur.

“When we go to our commissions to get recovery of any cost, we are a public utility, to recover any cost; they are not interested in paying for any technology that’s not required.”

Despite the carbon capture project not working, La Fleur says there are no regrets about that project.

I think we were successful in doing out with what we set to do. I think it was a great project, I don’t necessarily think we would have done anything differently. I think we would be a lot further down the road now if we had a little more foresight on the government’s part to develop the technology,” said La Fleur.

“That technology is not commercially available. It’s not commercially viable. It’s got to be further developed.”

Needing Resources

That means funding. La Fleur says public utilities that are interested in CCS need the help of the U.S. Department of Energy to get more money to do it. But even with funding, La Fleur says utilities, policy makers, and the general public needs to have patience…because change won’t be coming fast enough for some.

The EPA is going to come out with a proposed rule in June. Are they going to give the states enough time to get with the companies, to come up with a plan. That I think has been the issue,” said La Fleur.

“We need to have the proper funding to develop the technology going forward.”

Whatever rules the EPA comes out with- some in the coal industry are expected to file lawsuits opposing them.

The Three Absolutes: Death, Taxes, and….Litigation on EPA Regulations?

Scores of environmental regulators, lawyers, and other interested parties discussed what they will be facing when the Environmental Protection Agency releases its new rules on existing coal fired power plants later this year.

Lawyers are concerned with the possibility of excessive amounts of litigation over the issue, and some hope coal-rich states like West Virginia are given a great deal of flexibility to implement changes.

Who Owns West Virginia? Part Two

According to a recent report, the top 25 landowners in West Virginia own about 20 percent of the surface in the state. And perhaps not surprisingly, most of those landowners live elsewhere. The report, released by the West Virginia Center on Budget and Policy, is the first to take a close look at land ownership since the 1970s and it’s created quite a stir.

Heartwood Forestland Fund. The Center on Budget and Policy’s report says the company is the largest surface owner in the state, holding deeds to more than half a million acres across 31 counties.

Well, the folks at Heartwood wouldn’t return phone calls to tell us about their business practices, but according to the web site, since the mid 1990s, the company is a “timberland investment management organization (TIMO) which emphasizes naturally regenerating hardwood and some softwood forests.” Heartwood currently manages more than 3.5 million acres in 25 U.S. states as well as in Belize, Canada, Costa Rica, and Panama. According to its web site, the company is interested in large tracts of land, 2,000 acres or more; looks for natural stands of hardwoods, mixed pine, and northern conifers; and, it likes the East Coast since it’s based in North Carolina.

FORESTLAND MANAGEMENT TFG believes in being a responsible steward of the land and follows the principles of sustainable forestry. Forestland management plans are designed on a tract-by-tract basis, paying careful attention to each property's unique biological habitat and diversity. The firm's goal is to seek competitive returns while maintaining the productive capacity of the forest. The firm's management practices encourage the natural regeneration of the forest; maintain soil productivity, water quality, species diversity, wildlife habitat, and sites with significant biological, historical or archaeological value. The goal is to employ forest stand improvement techniques increasing the viability of the residual forest and to maintain the ecological integrity of the forest ecosystem.

So investors potentially based anywhere around the world collectively own a lot of West Virginia, and appear to have a vested interest in leaving the land pretty well as is.

Of course, Heartwood isn’t alone its absentee status. The top 10 landowners in the state are all based out-of-state.

The age-old question is: Can we blame the pervasive poverty in West Virginia on absentee land ownership?

“I think that around the world where you have extractive industry, you often have very poor people,” says Beth Spence who works as a Coalfields Specialist for the American Friends Service Committee. Spence was also the primary writer for the recent land ownership report entitled, “Who Owns West Virginia in the 21st Century?”

“I think it’s particularly troubling that we have so many children living in poverty in the state,” she points out. “It’s something we really need to look at and address in terms of what kind of wealth do we have and what kind of needs do we have.”

Spence grew up in the southern coal fields in Logan County and worked on the Appalachian Land Study Task Force in the 70s researching land ownership across Appalachia. She says not a lot has changed since then. Or at least, like many, she was not surprised by findings that so much land is owned by outside developers.

“It’s a different kind of ownership. In the past, the owners were people who wanted to develop minerals. These guys manage investment funds. I think it’s going to be interesting to see what that means for West Virginia because it may mean something different.”

Spence says answering questions the report brings up regarding mineral ownership and taxation are important next-steps. She notes that transparency hasn’t quite been a state-wide priority in the past.

Consider this:

WEST VIRGINIA CODE §11-1C-14. Confidentiality and disclosure of return information to develop or maintain a mineral mapping or geographic information system; offenses; penalties. (a) All information provided by or on behalf of a natural resources property owner or by or on behalf of an owner of an interest in natural resources property to any state or county representative, including property tax returns, maps and geological information and property tax audit information provided to the West Virginia Department of Environmental Protection, Office of Oil and Gas, and the West Virginia Geological and Economic Survey, for use in the valuation or assessment of natural resources property or for use in the development or maintenance of a legislatively funded mineral mapping or geographic information system is confidential. The information is exempt from disclosure under section four, article one, chapter twenty-nine-b of this code, and shall be kept, held and maintained confidential except to the extent the information is needed by the State Tax Commissioner to defend an appraisal challenged by the owner or lessee of the natural resources property subject to the appraisal: Provided, That this section may not be construed to prohibit the publication or release of information generated as a part of the minerals mapping or geographic information system, whether in the form of aggregated statistics, maps, articles, reports, professional talks or otherwise, presented in accordance with generally accepted practices and in a manner so as to preclude the identification or determination of information about particular property owners: Provided, however, That effective the first day of July, two thousand six, the Tax Commissioner may disclose the following specified information obtained from the West Virginia oil and gas producer/operator return to the West Virginia Geological and Economic Survey and the West Virginia Department of Environmental Protection, Office of Oil and Gas: Provided further, That the West Virginia Geological and Economic Survey and the West Virginia Department of Environmental Protection, Office of Oil and Gas, may disclose the following specified information obtained from the West Virginia oil and gas producer/operator return. (1) The name and address of the owner of a working interest in the well for which the return is filed; (2) The county and district within the county wherein the oil or gas well is located and taxed for ad valorem taxation purposes; (3) The name, address and telephone number of the producer and the producer's agent; (4) The American Petroleum Institute number assigned to each well for which the return is filed; (5) The total barrels produced in the reporting period for each oil well for which the return is filed; and (6) The total mcf produced in the reporting period for each gas well for which the return is filed. (b) Any state or county representative or employee, or employee or representative of the West Virginia Geological and Economic Survey or the Department of Environmental Protection, who violates this section by disclosing confidential information is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in jail for not more than one year, or both fined and confined, and shall be assessed the cost of prosecution. As used in this section, the term "state or county representative" includes any current or former state or county employee, officer, commission or board member and any state or county agency, institution, organization, contractor or subcontractor and any principal, officer, agent or employee thereof.  Note: WV Code updated with legislation passed through the 2013 1st Special Session The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.

“The West Virginia Constitution, the U.S. Constitution says that taxation must be uniform and equal,” says Jesse Richardson, the lead attorney for the Land Use and Sustainable Development Law Clinic at West Virginia University’s College of Law. He’s also an economist. He and students are often engaged in the tedious and difficult work of determining mineral rights for given properties.

“We do title work and it can be a bear to try to find out who owns the mineral rights.”

Richardson speculates that a significantly larger percentage of the state is owned by out of state interests since mineral rights are often severed from surface rights. But while we collectively wonder about ascertaining such information and about the implications, Richardson says he and several others at WVU are interested in brainstorming about how to cope with absentee ownership.

Take Wyoming County as an example. In the report “Who Owns West Virginia?” Wyoming County is highlighted as having the largest percent of land owned by outside interests. Christy Laxton, Executive Director of the Wyoming County Economic Development Authority corresponded through email on the subject:
 

“… around 85% of our county is owned by absentee landowners, those being Heartwood Forest, Norfolk Southern and Natural Resource Partners.  These bring great challenges to development in our county.  These owners have prime property in our county, and the property that is not owned by them is affected by them to some aspect with regards to right-of-ways, timber rights, etc.  We currently have an industrial park that is full and we are in the process of building another one.  The new Industrial Park is affected by Norfolk Southern with a rail right of way through the middle of the property.  We are working with the company to convey an easement for use of the right-of-way, but this has been a very lengthy process.  They have been very cooperative though. …  It is a huge challenge in Wyoming County, but we do the best we can…”

So Richardson, back in the land use law clinic at WVU is wrapping his head around this conundrum. Aside from the obvious need to address transparency especially with regards to taxation, he mentions thing like improving liability statutes.

“West Virginia has, like most states, a recreational use statute. If you allow people on your property, and you don’t charge them a fee, then you’re not exposed to as much liability,” Richardson says. But, he adds that improving West Virginia’s statute is only a small step.

Richardson says other actions can be taken to lubricate the joints where out-of-state corporate headquarters interact with local interests. He’s an outspoken advocate of the Comprehensive Plan. Such plans allow counties to outline goals for how land will be used in the future.

While many cities and municipalities are developing or already have developed these plans, only a small fraction of West Virginia’s 55 counties have taken up the initiative. Richardson explains that without zoning or subdivision ordinances, largely rural counties don’t feel the need to take such actions, but it may be in their best interests—especially those counties interested in pursuing economic improvement grants.

Richardson also believes we can do more as individuals to claim ownership, regardless of land boundaries. He points to public participation saying it’s up to the citizens of West Virginia to decide how they want to deal with these issues.

In his practice at the WVU Law Clinic, Richardson all too often encounters neglect. He says without a will, for example, properties are bequeathed by default to people who have long since left the state and had expansive families elsewhere, all unaware or uninterested in their percentage of ownership. Land is left to invasive plants like Garlic Mustard and Multiflora Rose; properties abandoned and condemned because it was easier to buy a new plot than one owned by some 300 far flung individuals. Richardson says apathy and incognizance are areas we can address.

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