Rep. Alex Mooney Deals a Blow to West Virginia’s Mountain Streams

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Rep. Alex Mooney (WV 2nd) is celebrating the demise of the Interior Department’s Stream Protection Rule. This Rule, made effective in the waning days of President Obama’s tenure, would have created a buffer zone between mountain streams and mine sites and would have protected drinking water in accordance with modern technology. The Rule would have mainly affected mining done by mountaintop removal where mining refuse is pushed into stream valleys. But Rep. Mooney and his Big Coal backers claim that the Rule would have killed over 70,000 jobs in the coal industry. Unfortunately, Rep. Mooney’s grasp of coal economics and employment numbers is feeble, perhaps influenced by his ideological impulse to dance on the grave of the Obama Administration.

The scientific evidence of the harm done by mountaintop removal with valley fills is unassailable. In January 2010, Science Magazine published an article detailing that harm, written and researched by twelve preeminent scientists including one from WVU. They found that burial of headwater streams by valley fills causes permanent loss of ecosystems. Stream biodiversity and water quality suffer. As they emerge from valley fills, mountain streams are saturated with sulfate, calcium, magnesium and other harmful ions. These persist even after mine-site reclamation. Groundwater samples from domestic supply wells have higher levels of mine-derived chemicals than well water from unmined areas. The article, written before Obama’s stream protection Rule, concludes

mine-related contaminants persist in streams well below valley fills, forests are destroyed, headwater streams are lost, and biological diversity is reduced; all of these demonstrate that [mountaintop removal with valley fill] causes significant environmental damage despite regulatory requirements to minimize impacts.

Balanced against this certain environmental harm is Rep. Mooney’s rather hysterical claim that huge numbers of West Virginia coal jobs would have been lost under the Rule. It should surprise no one that Rep. Mooney’s numbers come straight from the National Mining Association. That group’s analysis asserted that as many as 77,000 jobs might be lost nationwide under the worst scenario, but possibly far fewer under more likely scenarios. Those are not all West Virginia jobs, or even Appalachian jobs. And there is good reason to doubt the bona fides of NMA’s numbers because they do not take into account the reclamation and compliance jobs that would be created by the Rule.

Congress required the Office of Surface Mining Reclamation and Enforcement to estimate the proposed Rule’s impact on employment, not just on coal jobs. In a document entitled SPR Myths vs, Facts, it debunks industry claims that between 40,000 and 77,000 jobs would be lost:

The final [Stream Protection Rule] will not have an adverse impact on jobs. The regulatory impact analysis (RIA) for the rule estimates overall that employment will show [an annual average] increase of 156 full time jobs. Where coal production is unprofitable under market conditions, jobs are predicted to decline by an average annual aggregate of 124 fulltime jobs. This will be more than offset by an average annual gain of 280 fulltime jobs needed to comply with the rule where mining remains profitable, such as additional jobs like heavy machine operators for materials placement and water sampling professionals. For purposes of comparison, the Energy Information Administration reports that total coal industry employment in 2015 was equal to 65,971, decreasing 12% from 2014.

In a February 22, 2017 opinion piece, the Morgan Messenger took Senators Capito and Manchin to task for claiming that rolling back the Rule would save state coal jobs. “They don’t do our state any favors by pretending to have turned back the loss of coal jobs,” the Messenger said, noting that coal jobs have been declining for years due to economic factors unrelated to environmental regulations. Rep. Mooney is guilty of the same and more. By accepting and further promoting the coal industry’s false narrative about a “war on coal” he delays the reckoning we in West Virginia must have about replacing coal jobs and severance revenues. He keeps us in the perpetual coal rut. The roll back of the Stream Protection Rule is no cause for him to celebrate.

Those Who Work, Those Who Don’t

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After the 2016 election results we are struggling to understand what hit us. One common view is that Democrats have become tone deaf to the working class, advancing policies that cater to other key constituencies of the party but failing to do much about bettering the economic lives of those in the middle and lower middle. Why, we ask, did Wisconsin, Michigan and Pennsylvania forsake Hillary Clinton in favor of a bombastic outsider who made huge promises, but apparently hasn’t a clue how to govern to deliver on them?

Several thoughtful books can help us find the answer. The best of these is Those Who Work, Those Who Don’t, a sociological study written by Jennifer Sherman in 2009. Sherman sought out a small town in rural America where industry and jobs had been decimated and widespread poverty made the normal social pecking order collapse. This should sound familiar in West Virginia. She wanted to learn what factors provided status and capital in a community where economic distinctions were no longer possible. What she learned is an eye-opener.

Sherman’s town is located in the rural Northern California forest area. She gave it the fictitious name Golden Valley. Golden Valley’s economy was wrecked by the environmental decision to protect the spotted owl at the expense of local industry. All logging activity and most sawmilling in the area ceased and many layoffs occurred. Golden Valley residents viewed this economic devastation as the handiwork of bi-coastal liberals who cared nothing about working class people. But they also recognized that Rebublicans cater to big corporate interests and were not concerned about their plight either.

In Golden Valley nearly everyone was poor. In the absence of economic wealth and distinctions, moral capital was the source of self-esteem and community standing. Those who had moral capital were often able to exchange it for economic capital in the form of job opportunities and assistance from other community members in time of need.

There were two main sources of moral capital. The first was connection to work. Work ethics were highly valued. Those who had a steady full time job were at the top of the hierarchy, followed by those with part time jobs, those on unemployment compensation, and those with a work-related disability. Receiving state or federal benefits because of unemployment or disability was not a negative because these benefits had a connection to past work. Even those who worked to support their families by hunting, cutting wood for fuel or gardening had moral capital from these activities.

Those who did not work, but instead received government welfare assistance, had negative moral capital and lost standing in the community. This effect was felt powerfully by those in that category. Many drove forty miles to the nearest town to use food stamps for fear that they would be recognized by their neighbors. At the bottom were those who were addicted to drugs or abused alcohol, and those who survived through illegal activity. These people were shunned as having no work ethic and were effectively shut out of job opportunities.

The second source of moral capital was “family values.” A person high on the family values scale was usually in a stable marriage, and was a parent or foster parent. But as in most poor communities the traditional family didn’t exist. Children were often raised by grandparents, distant relatives or complete strangers. An individual or couple could gain moral capital if they provided a safe home for any child in the community who needed one. Parents in Golden Valley did not behave as middle class parents frequently do by planning for and becoming involved in the child’s future. Instead parents gained self-esteem and community standing merely by sheltering children in an environment free from abuse that allowed them to develop in their own manner and direction.

What can those interested in regaining the votes of working class people learn from all this?

  • Working class people value hard work, so policies that are designed to provide jobs will be supported by working class voters;
  • working class people are not lazy, do not want public assistance, and will mostly avoid using even well-intentioned benefits that do not somehow recognize recipients as having been connected to the working economy;
  • working class people believe that their moral values of hard work and family are the true American values. Republican rhetoric about morality and values resonates with them;
  • guns, particularly those associated with hunting and providing food, are a strong tradition in rural America and are sometimes essential for family survival; and
  • working class people will reward politicians and political parties that speak to them in a sympathetic, understanding manner and couple this with policies that attempt to deal with the hardships in their lives.

Working class people do not vote against their “interests” when they vote for the Republican agenda, even if that agenda worsens their economic plight. In fact, it is condescending to suggest this. Instead they vote in line with their values. It’s just that Republicans have been more successful addressing those values. But there is nothing inevitable about working class support for the Republican agenda. A progressive agenda that seeks to level the economic playing field through tax reform and job creation can reverse this trend.

Originalism and the Supreme Court

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President Trump’s nominee for the Supreme Court is Judge Neil Goresuch, who is said to be an Originalist like Justice Scalia, whom he will replace if confirmed.

Originalism is a theory of judicial interpretation that requires the judge to determine what the Constitution meant at the time of its enactment. An Originalist does not believe that an interpretive gloss may be added to this meaning to make the outcome better fit the times. In the case of current statutory interpretation, an Originalist focuses solely on the plain meaning of the words used in a statute without resorting to what judges or others may think Congress intended the statute to mean.

Originalism is a respectable principle by which to resolve controversy about textual meaning. But it can lead to absurd results. Suppose some crank decided to sue the United States Air Force on the ground that its very existence is unconstitutional. Absurd, right? Not to an Originalist.

Article I, Sec. 8 of the Constitution enumerates the powers granted to Congress. Among them are the power “to raise and support Armies” [12], to “provide and maintain a Navy” [13], and to make rules for governing “the land and naval Forces” [14]. There is not a word about air forces in the Constitution for obvious reasons.

Who could doubt that a judge presented with that suit should dismiss it? Even if the language of the Constitution did not specifically bestow on Congress the power to create and regulate an Air Force, the Founding Fathers would have done so had they been able to conceive of the need for one. And the existing language of the Constitution can be interpreted to give Congress the power. Ah, but this is precisely what Originalists believe should not be done.

In the 1972 case of Laird v. Tatum, Justice Douglas elided the issue by saying that “the Army, Navy, and Air Force are comprehended in the constitutional term ‘armies.’” Really? How can that be? Well, of course, it can’t be if we may only interpret and apply the Constitution as originally meant. But it is more sensible now to broaden the term “armies” beyond what it originally meant. This is an example of holistic interpretation, and why it is the favored approach of most jurists.

Judicial conservatives – Originalists – point out that the Constitution separates powers among the three branches of government and Congress is given the sole power to make laws. If the judicial branch interprets and applies a statute so as to give it a meaning not specified by Congress, aren’t judges making law? And if those judges are liberals, won’t conservatives be unhappy with the substance of the judicially made law? Indeed, and the prime example of this is a woman’s right to an abortion recognized in Roe v. Wade but nowhere mentioned in the Constitution.

Here is the essence of the whole controversy about who sits on the Supreme Court. It is the substance of judicial outcomes that matters, not the interpretive theory they are dressed up in. These outcomes are sometimes politically driven. Judge Goresuch has said that Originalism often leads judges to results they don’t like. Perhaps, but Originalists also sometimes engage in holistic interpretation to reach the result they want, although they tend to construct tortured explanations to deny that they have departed from Originalism. Justice Scalia was famous for this.

It is too early to know what political outcomes Judge Goresuch will favor, but he is unlikely to be worse than Justice Scalia on this point. Judge Goresuch is a careful jurist who does not engage in the bullying and intemperate attacks on those who disagree with him as did Justice Scalia. For that reason alone, he will be an improvement if confirmed.