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Under the Dome: Proposed late special session of West Virginia Legislature raises questions

The House of Delegates chamber sits empty as legislative staff work to figure out how a possible special session following the November election but after the Dec. 1 date when newly elected lawmakers’ terms begin would work. (Photo by Steven Allen Adams)

CHARLESTON – As workers were picking up the pieces of the fallen Capitol Christmas Tree Thursday morning due to high winds, lawmakers and legislative staff were trying to determine how to conduct a last-minute special session.

By Thursday evening, however, a source in the governor’s office confirmed there would not be a special session at this time and further details would be forthcoming Friday.

Lawmakers first took to social media Wednesday night after a letter was sent to members alerting them to a possible special session to be called by Gov. Jim Justice for Saturday, Dec. 7. Members of the state Senate and House of Delegates provided further confirmation Thursday morning.

“We were notified on yesterday evening to prepare for the possibility of being called into an extraordinary session by the Governor this weekend,” said Senate Finance Committee Chairman Eric Tarr, R-Putnam, in a statement. “As with all extraordinary sessions, the Legislature may only convene outside of regular session upon the Governor’s proclamation.”

“There was a letter that went out that suggests that there may be a special session starting approximately 6 o’clock (Saturday),” said House Finance Committee Chairman Vernon Criss, R-Wood, by phone Thursday.

According to Criss, the proposed special session would have been for consideration of a bill making changes to the Certified Industrial Business Expansion Development program on behalf of the Berkshire Hathaway Energy (BHE) Renewables and Precision Castparts Corp. (TIMET) titanium melt facility/solar microgrid project being built in Jackson County, though he was not aware of the specifics of the bill.

Created by Senate Bill 4001 in a special session in September 2022, the program is meant to incentivize investment and construction of high-impact industrial plants and facilities that require access to renewable energy.

BHE Renewables and TIMET purchased more than 2,000 acres at the former Century Aluminum site in Jackson County to build a modern titanium melt facility powered by a solar energy microgrid – a $500 million investment. A request for comment from representatives of BHE Renewables/TIMET was not returned for this story.

SB 4001 created no more than two 2,250-acre, certified high-impact industrial business development districts that must be on land sold or leased by the state. Any renewable energy project in these districts would not be subject to approval by the Public Service Commission as far as rates, obtaining a certificate of convenience and necessity, conditions of service or complaints.

The bill being discussed for a special session would have allowed for an additional district, or a maximum of six districts with approval of the Department of Economic Development, though no more than three districts can be within the same service territory of an investor-owned electric utility in the state.

“The Berkshire Hathaway Energy District in the Ravenswood area needs to be modified for some kind of an investment,” Criss said. “I don’t know the details other than that’s the concept and hopefully we’ll hear more or actually see the call later today.”

According to a draft bill, the legislation would remove the requirement that certified high-impact industrial business development districts be established on land sold or leased by the state. It would increase the acreage from 2,250 acres to no greater than 5,000 acres as long as it was large enough to support between 500 megawatts and 1,000 megawatts of renewable energy generation.

The draft bill would require completion of economic development projects in a certified high-impact business development district within five years. It would also allow electric-generating units in these districts to be taxed at salvage value for property tax purposes, lower than the fair market value.

West Virginia Democratic Party Chairman and Delegate Mike Pushkin, D-Kanawha, criticized Justice for creating confusion by proposing a special session and for wasting taxpayer dollars. Special sessions held outside of coinciding legislative interim meetings can cost as much as $35,000 per day.

“Governor Justice is squandering taxpayer dollars to hold a special session to pass a sweetheart deal for a special interest, out-of-state corporation,” Pushkin said in a statement Thursday afternoon. “This is an outrageous abuse of power and a blatant disregard for the people of West Virginia, who deserve a government that prioritizes their needs–not backroom deals for corporate cronies.”

The bill was also opposed by at least some on the conservative right. A group called West Virginia Constitutional Conservatives, sent out an email Wednesday urging fellow conservatives to oppose the bill and pressure Justice not to call a special session.

“West Virginians shouldn’t have to foot the bill for political stunts that prioritize special interests over hardworking families,” wrote Laura Anders, wife of incoming Delegate S. Chris Anders, R-Berkeley. “Our tax dollars should be used responsibly, not squandered on projects that increase costs and threaten the livelihoods of those in traditional energy sectors.”

The possible special session would have created a new set of problems.

According to the state Constitution Article 4 Chapter 7, the terms for new lawmakers begin on the first day of December. After last month’s general election, the 100-member House of Delegates will be getting 14 new members, including 13 Republicans and one Democratic lawmaker. In the 34-member Senate, there will be seven new members, including six Republicans and one Democrat.

Over the years, legislators will often have informal swearing-in ceremonies in December, with a formal swearing-in ceremony when the Legislature first convenes in January.

During a year when a new governor takes office, the Legislature convenes on the second Wednesday in January (Jan. 8 in 2025) to elect leadership and open election returns delivered by the secretary of state. The Legislature then adjourns until the second Wednesday in February (Feb. 12) to begin the regular 60-day legislative session.

When a special session was on the table, the question facing staff of the House and Senate clerk’s offices was who would participate? Would it be considered a lame-duck session with members of the 86th Legislature participating, or would new members of the incoming 87th Legislature be seated?

According to the Secretary of State’s Office, the only times a special session was called after an election and prior to the start of the next regular legislative session were in 1913 and 1936. In a statement, Deputy Secretary of State and Chief of Staff Donald “Deak” Kersey said state code was amended after 1913 requiring the secretary of state to deliver the election returns to the Legislature of the first session following the election.

“In 1936, a special session was called after the election but before the regular session, and the Secretary of State, following the amended law, delivered the certificates to the Legislature at the start of the special session,” Kersey said. “This is still the case today under current law.”

“Therefore, if there is (a special) session, the Secretary of State is to deliver the certificates of election to the Legislature at the next ensuing session, which would be the (special) session and the newly elected legislators from the 2024 General Election would take office (so long as they’re in attendance and take the oath),” Kersey said.

County clerks had until 30 days following the end of the Nov. 5 general election, or Thursday, to transmit certificates of election results to the Secretary of State’s Office.

Joey Garcia, the two-term Democratic delegate representing Marion County, won election in November to represent parts of Marion and Monongalia County in the 13th Senatorial District for a four-year term. Garcia said the current 11-member House Democratic caucus found out indirectly about the special session.

“I’m honestly a little bit disappointed in the lack of communication that we’ve received from, I think, House leadership because we found out about this through an email that didn’t come to any of our members,” Garcia said.

The state Constitution states that in odd-numbered years each body will elect its officers when it convenes on Jan. 8.

According to state Republican Party Chairman Matt Herridge, the GOP members of both bodies are scheduled to have caucuses Sunday afternoon to elect their nominees for House speaker and Senate president, who will be voted on by the respective chambers next month.

House members are expected to reelect Delegate Roger Hanshaw, R-Clay, as speaker. But with Senate President Craig Blair, R-Berkeley, losing his GOP primary in May, there is a race for the president’s gavel. Known candidates include Senate Majority Leader Tom Takubo, R-Kanawha; Senate Energy, Industry and Mining Chairman Randy Smith, R-Tucker; and Tarr.

“I don’t know yet,” said Tarr when asked whether a proposed special session could speed up the timetable for selection of a new Senate president. “I’m trying to get definitive answers on that as well.”

Garcia, who took his ceremonial oath of office Wednesday, said it was important for legislative staff to get to the bottom of these issues, otherwise it could lead to possible litigation if someone believes the state Constitution was not being followed.

“Whether I would be involved in this as a House member or a Senate, I expected that I was going to come into the Senate on Jan. 8 and take my oath of office then,” Garcia said. “Either way, we really need to know. They need to work this out, and then I’m ready to do whatever needs to be done.

“If it’s good policy, if it’s good legislation, if it needs to be done now, it needs to be done later: whatever that may be, I’m here to try to make sure we do what’s right for the State of West Virginia,” Garcia continued.

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