Because, politics. That’s the short answer.
For the long answer, let’s have a look at the actual WV Code and see what protections we as West Virginians should have by law—and how the DEP is failing to provide us with those protections. We’ll also look at where our current Secretary of the Department of Environmental Protection has failed us.
We’ll start by examining WV code outlining the purpose and functions of the WV DEP, which is found in Chapter 22. Today we’ll look at part of Article 1 only; we’ll look at further code in the future. Feel free to follow that link and read through the first part of Article 1 before proceeding.
Generally speaking, in each chapter of our code the legislature starts out by explaining its findings and the intended purpose of the laws, in order to provide guidance to those trying to adjudicate them. The first article in Chapter 22 acknowledges the purpose: “Restoring and protecting the environment is fundamental to the health and welfare of individual citizens, and our government has a duty to provide and maintain a healthful environment for our citizens.”
There are other important parts of this article, and we can’t simply pull out the parts we like and pretend that’s all there is. We have to read the rest of the section to see if there are any limiting factors or additional considerations.
So if you have read through the code, you’ll have seen that the law goes on to discuss how the public should be permitted to participate in environmental decisions that affect them, and that decisions should be made AFTER public participation and hearings.
The implication, of course, is that hearings should provide affected people with a way to influence policy: that their needs will be recognized, and that they’ll be protected from having not only their physical property, but their peace of mind, taken for the profit of someone else. The public should not merely be able to “participate” in hearings, but they must be able to influence the outcome.
That is not explicit, however—and it should be.
Therefore, I would propose adding to §22-1-1 (a-3): “The state must consider all input from potentially affected citizens and must view that input in the most favorable light possible. Decisions must never be made that result in more loss than benefit to the citizens who bear costs and negative externalities of industry or development. Industry bears the burden of demonstrating significant long term benefit to affected persons and to the community.”
In (a-4), There’s a directive to protect our health and welfare in a cost effective, efficient way. In (a-5), the WV DEP is directed to “improve and maintain the quality of life of our citizens, and promote economic development consistent with environmental goals and standards.” The WV DEP is called unequivocally to protect our health. The duty to protect us, and to do it efficiently, is repeated over and over. In fact, health/healthfulness is emphasized six times in just this chapter, where”Health” is paired with welfare, safety, and even public enjoyment of the environment—for this and future generations.
In (b), we see also that the legislature acknowledges that environmental protection is in the public interest, and should consider future generations. It also calls for the WV DEP to protect the environment without sacrificing social and economic development. There is no specific legal definition of “social and economic development” for this chapter, but typically, socioeconomic development is measured by considering metrics like life expectancy, level of employment, educational accomplishment, and so on. It’s an indication of quality of life.
The Code goes on to enumerate ten specific legislative purposes. None of them provide any check on the main directive to protect our health and welfare; they simply suggest that the protection of plants, animals, our health, and our enjoyment of the environment must be consistent with our deriving benefits from the way we use our resources. This is important: WE must derive the benefits—not private companies. We are also directed to promote environmental quality by improving and sharing research. And the final purpose of the 10 listed is to promote pollution reduction and prevention at the sources of the pollution.
So this is all sensible. I would make what is implied §22-1-1 (a-3) explicit, as I outlined. But this part of the code is otherwise clear, and is the lens by which we must read the other laws in this chapter.
To sum up this part: the legislature finds that efficiently protecting and restoring the environment is fundamental to our health and welfare, and that WV DEP decisions must improve and maintain our quality of life. The DEP should promote social and economic development that is consistent with environmental goals, and improves the lives of West Virginians without hurting future generations.
Protecting us and ensuring industry actually benefits us is just not what the WV DEP is doing. There are noxious elements eating away at our health and welfare, but the WV DEP is refusing to act.
They know that mining communities are impacted by cancer, kidney disease, respiratory illnesses, heart disease, and even birth defects, for example. And they know that with frack-impacted communities, “health impacts include respiratory problems, birth defects, blood disorders, cancer and nervous system impacts, raising serious concerns for workers and people living closest to wells, as well as entire regions with high volumes of oil and gas activity.” They know they are not protecting our health and welfare, yet mining pollution continues, and fracking is expanding.
Residents are frantically trying to protect themselves while the DEP actually works against them by permitting repeat violators like Antero and EQT. Legislators are rolling back clean water protections with support from Secretary of the WV DEP Huffman, even after the spill that poisoned the water of 300,000 in this state. The state government even wants to approve fracking beneath the Ohio River, a river providing drinking water for 5 million people.
When you have the time, read all of those linked articles above—or others you can find. Compare how many times the WV DEP reps champion the health and welfare of citizens, with how many times they seem concerned about making things easy and quick for the polluters. See any pattern?
As for economics, we know that even there, the decisions fail to pass the sniff test. Neither mining nor extraction benefits the state’s bottom line. Extraction costs WV money, nearly $100 million a year just in coal.
So, they are not protecting our health and they are not providing any financial benefit—to us. The benefits go to Resource Barons… and the politicians they buy.
For example, neither the DEP representatives nor the company at the public meeting about the dangerous Antero frackwaste disposal project had any cost-benefit analysis showing that the project would benefit us. Instead, Antero actually talked about how much they would be saving for themselves—how much they’d make off of us!
They did that without any self-awareness or fear that the DEP would refuse a permit, even though ensuring profit to corporations at the expense of the community is explicitly counter to the department’s purpose.
The DEP’s only concern is seemingly with streamlining regulations to increase accounting profits for these companies. How do we know? Because even conveying the public’s concerns was claimed to be “Above my pay grade!” by Secretary Randy Huffman.
This is simply a lie.
Not only does he have the power to deny permits when they negatively affect our health and welfare, but additionally WV §22-1-3(a) reads:
“The director [Secretary of the Department of Environmental Protection or his or her designee”] has the power and authority to propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to carry out and implement the provisions of this chapter and to carry out and implement any other provision of law relating to offices or functions of the division.”
Huffman has always had the power to even propose new rules to help the public, so long as they are more stringent than federal rules.
He knows he has that rule-making power because he’s used it before: to contact “stakeholders” about ways he can reduce regulations, increasing the risks to regular people.
“I’ve lived here for 32 years. I can’t go out and enjoy my yard anymore. We are getting sold out. We don’t have a life anymore. I’m afraid to drink my water. I can’t breathe the air. We can’t even sell our homes; they’re worthless now. I just wish someone would listen to us,” begged Lyndia Ervolina.
In a crowd of 40 people like Ervolina , Huffman was confronted with desperate testimony about the social costs our communities are bearing.
He acknowledged that “You have had a huge invasion of industrial activity,” and that our country roads and infrastructure cannot support the heavy equipment to which it’s being subjected. “You’re overwhelmed,” he’s quoted as saying.
But here’s what he told regular people he could do for them: nothing.
“If I start pounding my fist, it is going to be a fruitless effort. I would become ineffective. There are too many entities at play in Charleston. If I did that, they’d laugh me out of the capitol building. It would limit my effectiveness.”
He also told them to vote.
This is precisely the reason why establishment democrats lost this year: they are not actually doing anything to help regular people. They’re having a tea party and serving us cups of air, telling us we’re not really thirsty. They seem to be more concerned with saying the right things than with doing the right things. Sometimes they do neither.
Huffman’s suggestion to vote was “met with several comments from those in the audience. One person said, ‘We have representatives. We’re just not represented.’ Another said, of the county commission, ‘It’s a joke. They don’t even acknowledge our communications.'”
I would add that Huffman himself was the perfect illustration of the problem we face here in WV. The people were at that moment talking to the person who could help them–whose job it was to help them. But he wouldn’t do it. Instead, he blew hot air at them: “Above my pay grade!” he averred—and “Vote!”
He gets his paycheck, anyway.
Bought and Paid For Secretary of the WV DEP
This is the issue we’re all struggling with: our representatives don’t represent us. Vote? We have been. But we don’t have real choices: no one we vote for will make a positive change. Our representatives and their appointees are more interested in keeping their positions than in helping make WV a prosperous place for all of us or doing the jobs they are given.
There is nothing in the law that even permits Huffman to sacrifice the health and welfare of people in order to make sure Resource Barons make huge profits at our expense. But that is what he does, because that’s the easy thing to do.
“A man does what he must — in spite of personal consequences, in spite of obstacles and dangers, and pressures — and that is the basis of all human morality.”
― John F. Kennedy, Profiles in Courage
Do I think that Huffman sits in his office, rubbing his hands together and twirling his mustache like a cartoon villain, planning on who he can tie to the railroad tracks next?
Of course not.
But he’s clearly abdicating his responsibility to protect us, because fighting to do the right thing can be uncomfortable. It will put you out. He doesn’t want to be laughed at, he protests! But being a public servant sometimes requires personal sacrifice. You must do things to promote the public interest—not YOUR interests. You can’t be so interested in winning your next election or appointment that you hurt people, or allow them to be hurt.
All you have to do to hurt people is close your eyes and not act when it is your job to help them.
Whether you twirl a magnificent villainous mustache while you turn away or not, it is an evil act. One’s intent has nothing to do with it.
This is why we need to exert pressure on this state’s latest humiliation: our Governor-elect—a deadbeat coal baron climate-science denier—to appoint a Secretary of the Department of Environmental Protection who will effectively run the department as it’s meant to run for a change.
Remember, the Governor appoints the Secretary of the WV DEP. As a coal baron—and a deadbeat—the Governor-elect has serious conflicts of interests. We don’t need him to appoint someone even worse than Huffman, someone who will view his job as helping the Governor enrich his personal businesses at the expense of the public.