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Another West Virginia Supreme Court Justice Declines to Step Aside in Another Natural Gas Case

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Newly appointed West Virginia Supreme Court Justice Evan Jenkins, a former congressman, has refused to step aside from a natural gas case. Photo: Bill Clark, CQ Roll Call

A lawyer who represented new Supreme Court Justice Evan Jenkins is on the legal team representing the natural gas giant Antero. The opposing side asked Jenkins to recuse himself, but he said no.

In another recusal controversy involving the West Virginia Supreme Court and the natural gas industry, a newly appointed justice declined to step aside from hearing a case on Tuesday, despite the fact that he was personally represented by a lawyer now representing a company involved in the proceeding.

Former U.S. Rep. Evan Jenkins hired Huntington lawyer Ancil Ramey, a former court clerk who often appears before the justices, to appear on his behalf last month when two lawyers tried to block Jenkins’ appointment to the court by arguing that he didn’t meet state constitutional requirements for the post.

Ramey won that case, and Jenkins was sworn in on Oct. 1.

Tuesday was the first day Jenkins was scheduled to hear oral arguments, and the second case on the docket was a major lawsuit filed by a group of Harrison County residents against Antero, West Virginia’s largest natural gas producer, alleging that the company is making life in their community unbearable.

Among the attorneys representing Antero: Ancil Ramey.

On Tuesday, Jenkins turned down a motion filed by the residents asking him to disqualify himself from the Antero case because of Ramey’s involvement in ensuring Jenkins got his seat on the Supreme Court.

In a one-page memo made public just before court was to begin for the day, Jenkins said he “had no prior relationship” with Ramey, “the representation was brief, and it has terminated.”

“Therefore, I find no reasonable grounds requiring my recusal,” Jenkins wrote.

The court has faced several recusal controversies in recent years.

Just weeks after taking office in 2017, Justice Beth Walker voted to rehear and then to overturn a previous ruling over how lease payments from gas producers to gas owners are calculated. Walker denied a motion to disqualify herself based on her husband’s stock holdings in energy industry companies. She said her husband had sold the shares before the case was argued.

Years earlier, then-Justice Brent Benjamin refused to recuse himself from hearing an appeal involving Massey Energy Co., even though its CEO at the time, Don Blankenship, had spent $3 million on a campaign against Benjamin’s opponent in the 2004 election. That case went all the way to the U.S. Supreme Court, which ruled in June 2009 that Benjamin should have stepped aside. Walker defeated Benjamin in the 2016 election.

The Jenkins controversy also comes as West Virginia’s Supreme Court faces a continuing crisis over spending — including allegedly using state cars for private trips and lavish office renovations that included a $32,000 couch — that has touched all five justices.

One justice, currently suspended, is on trial in federal court, contesting criminal charges that include fraud and obstruction; another justice resigned and then pleaded guilty to wire fraud; and a third retired after being impeached, but alleged the House GOP leadership was trying to take over another branch of government. A fourth was publicly reprimanded by the state Senate after an impeachment trial, but denied wrongdoing and avoided the more serious punishment of removal from office. The fifth faces an impeachment trial this fall, and has vowed to fight removal from office.

Jenkins was appointed to fill the seat of Robin Davis, the justice who retired after being impeached.

Attorneys for several Harrison County residents filed a motion last week urging Jenkins to not take part in the Antero matter.

“Justice Jenkins presiding over a case wherein his attorney is representing the respondents Antero raises reasonable questions about impartiality and has an appearance of impropriety which requires Justice Jenkins disqualify himself from this matter,” said the motion from Anthony Majestro, lawyer for the residents.

In a response filing on behalf of Antero, Ramey said that disqualification of Jenkins was not necessary, because Ramey’s representation of him had ended before Jenkins officially joined the court. The response also said that while Ramey helped write Antero’s briefs in the natural gas case, he was not the lead lawyer and would not be taking part in the oral arguments.

In the case, residents in the Cherry Camp area of Harrison County are appealing a lower court decision that threw out their lawsuit against Antero. The residents sued over a variety of natural gas production activities they argue create a nuisance, including unbearable traffic, “constant dust” that hangs in the air and settles on homes and vehicles, disruptive heavy equipment noise, and bright lights that shine into their homes day and night.

Antero attorneys say the company has only done what was reasonably necessary under its leases to extract gas, and that those operations don’t interfere with the residents’ use of their property. Antero lawyers said a panel of lower court judges was right when it threw out the case.

Hundreds of similar cases are pending in West Virginia courts, and the eventual ruling in the matter before the Supreme Court will likely set a precedent.

The issues raised in the cases are of growing concern in West Virginia, as the state’s natural gas industry continues to boom.

While Jenkins didn’t recuse himself, another new justice, Tim Armstead, did. It was not clear why Armstead recused himself from the Antero case, although, previously, Armstead, a former state House of Delegates speaker, worked as an attorney for a different natural gas company. Armstead was appointed to the court by Gov. Jim Justice at the same time as the governor appointed Jenkins.

No party filed a motion asking Armstead to disqualify himself, a court spokeswoman said. Armstead offered no explanation in a one-sentence memo to the court clerk.

His disqualification came just moments before the case was to be argued, so there was no time to find a replacement judge, a process that is allowed in West Virginia on a case-by-case basis. The residents asked that the argument be rescheduled for a later date, and the court agreed.

The seats held by Jenkins and Armstead are on the ballot in West Virginia’s general election next month. Both men are running.

This article was produced in partnership with the Charleston Gazette-Mail, which is a member of the ProPublica Local Reporting Network. It was originally published by ProPublica
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Was W.Va. Effectively Bankrupt when Jim Justice Became Governor?

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West Virginia Gov. Jim Justice addresses at news conference, Tuesday, Feb. 27, 2018, at the state Capitol in Charleston, W.Va. Justice announced that striking teachers would return to work on Thursday, and that he’s offering teachers and school service personnel a 5-percent pay increase in the first year. Photo: John Raby/AP Photo

Has the state of West Virginia really been bankrupt within the past two years?

West Virginia Gov. Jim Justice raised this issue when he said earlier this year that “a little over one year ago I was sworn in as your governor. At that time, our state was bankrupt for all practical purposes.”

But was the state really bankrupt? Because of the difficulty of rating a statement that includes the phrase “for all practical purposes,” we decided not to put this one to the Truth-O-Meter. But we thought it was an interesting assertion that deserved a closer look.

Justice was elected in November 2016 and was sworn into office on Jan. 16, 2017.

According to U.S. Census Bureau data released in 2016, West Virginia’s accumulated debt at that time was in excess of $7.2 billion. We’ll use this as a rough stand-in for the scale of the debt at the time Justice became governor.

The problem for Justice’s statement is that having debt — even in the billions of dollars — does not necessarily mean that a state is broke.

Dictionaries define “broke” as “having no money; bankrupt” and “without money; penniless.”

That’s not the case for West Virginia, which is still paying its bills. Further, under federal law, it’s doubtful that a state would be allowed to declare itself bankrupt.

Credit agency ratings serve as a gauge of a state’s creditworthiness. West Virginia’s status isn’t perfect, but it’s also not at the bottom of the scale. One of the main credit agencies, Standard and Poor’s, had West Virginia in both 2016 and 2017 at a rating of AA- on a scale of AAA to BBB-. That’s worse than many states, but the same as or better than others, including California, Connecticut, Illinois, Kansas, Kentucky, Michigan, New Jersey, and Pennsylvania.

And as a worst-case scenario, a state could always raise taxes to help pay its bills. (This would be politically unpopular, but it would be a way to avoid being unable to pay outstanding bills.)

We’ll use an analogy we’ve used previously: Your paycheck doesn’t cover your bills every month, but you have a great credit score, you use your credit card to cover the difference, and have no trouble paying your credit card bill. Would you describe yourself as “bankrupt” or “impoverished”?

We wouldn’t. We’d reserve that description for the neighbor who was behind on his mortgage and couldn’t pay his creditors.

“As long as the state can service its debt, it is not bankrupt,” said Brian Lego, a research assistant professor for economic forecasting at West Virginia University. “The state was in difficult financial circumstances at the time (of Justice’s statement) due to the downturn in coal and weakness in natural gas. But it was not bankrupt.”

We reached out to the governor’s office but did not hear back.

This story was originally published by PolitiFact.

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Fact-checking Patrick Morrisey on Positions Held by Joe Manchin

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President Donald Trump, left, shakes hands with Republican Senatorial candidate Patrick Morrisey, right, on stage during a campaign rally at WesBanco Arena, Saturday, Sept. 29, 2018, in Wheeling, WV. Photo: AP

In his battle to unseat U.S. Sen. Joe Manchin, D-W.Va., Republican state Attorney General Patrick Morrisey is working hard to paint Manchin as a captive of his party even though West Virginia voters strongly back President Donald Trump.

In a tweet on Aug. 31, Morrisey said, “On life, guns, tax cuts, and coal, I stand with President @realDonaldTrump and West Virginia. Meanwhile, lying liberal Joe Manchin stands with Hillary Clinton and DC Dems on gun control, higher taxes, amnesty and Planned Parenthood. The choice could not be more clear. #WVsen.”


In this fact-check, we’ll look at whether Morrisey had a point about Manchin’s stances on guns, taxes, immigration and Planned Parenthood.

Guns

Manchin once received strong support from the National Rifle Association. But that’s not the case any more.

In 2004, when Manchin was running for governor, he received an A-plus ratingfrom the NRA and received the group’s endorsement when running for governor.

And in 2010 and 2012, when Manchin was running for a U.S. Senate seat, he was endorsed by the NRA and received an A rating. “Joe Manchin is committed to protecting the Right to Keep and Bear Arms guaranteed to all Americans,” Chris Cox, chairman of the NRA Political Victory Fund, wrote in 2012.

But Manchin’s relations with the NRA soured in 2013 after he and Sen. Pat Toomey, R-Pa., proposed legislation that would have enacted tighter background checks for certain gun purchases. Manchin and Toomey framed the bill as a compromise, but the NRA saw it as the first step down a slippery slope and opposed it. (It never became law.)

This year, the NRA gave Manchin a D and said it was airing ads on behalf of Morrisey in the Charleston and Bluefield markets.

“Contrary to what Joe Manchin says in West Virginia, he has supported the agenda of Barack Obama and Chuck Schumer by voting in favor of gun control in Washington, D.C.,” Cox wrote this year.

In an interview on CBS news in March 2018 — in the wake of the school shooting at Marjory Stoneman Douglas High School in Parkland, Fla. — Manchin defended his position as “not gun control. It’s gun sense. … This bill of ours, the Manchin-Toomey bill, should be the base bill they work off of.” He also has signaled support for banning bump stocks and raising the legal age of purchasing assault rifles.

Manchin added that he would not support a ban on AR-15s. When he was asked about the possibility of the ban, he said, “I don’t have any friends that own the gun right now, I don’t know anyone who’s committed a crime with it, so I wouldn’t take their gun away.”

“Joe Manchin supports protecting West Virginians’ Second Amendment rights,” said Manchin spokesman Grant Herring. “Manchin is a lifetime NRA member. Manchin opposed banning assault weapons and sponsored and voted for legislation allowing concealed-carry reciprocity.”

Taxes

The biggest tax vote in recent years came in December 2017, when the Senate considered a bill backed by President Trump and the GOP-controlled House that made major tax cuts and enacted other changes to the tax code.

Manchin, like the chamber’s other Democrats, voted against passage, but the bill received enough Republican support to become law.

Manchin’s vote against the bill isn’t exactly a vote for “higher taxes” — it was a vote to keep the status quo on taxes — but he did pass up the opportunity to lower taxes for many Americans, so this charge has some validity.

Previously, we’ve reported that in 2012, Manchin voted for the “Buffett Rule,” which would have imposed a minimum effective tax rate for high-income taxpayers. He also supported legislation offered by the Bowles-Simpson commission, which was an attempt to balance the budget in a way that included tax increases as well as spending cuts.

Immigration policy

In 2013, Manchin voted in favor of the “Gang of Eight” bill that, among other things, would have set up a path to legal status and an eventual opportunity for citizenship.

The “Gang of Eight” refers to a bipartisan group of eight senators — four Democrats and four Republicans — Jeff Flake, R-Ariz., Marco Rubio, R-Fla., Lindsey Graham, R- S.C., and John McCain R-Ariz. It was endorsed by former President Barack Obama.

The bill passed the Senate, 68-32, with 14 Republicans joining 54 Democrats and Democratic-caucusing independent senators in voting for it. (The bill did not get a hearing in the House and never became law.)

Manchin was one of the Democrats who voted for it. But did it amount to amnesty?

As we’ve concluded in the past, defining “amnesty” is tricky.

Some view it as blanket permission for undocumented immigrants to remain in the United States, while others view amnesty as any measure that is favorable to any undocumented immigrants, even if it includes a list of tough measures they have to meet. Republicans who supported the legislation, along with most Democrats, argued that the bill did not offer amnesty.

At the time, we concluded that the bill did not offer blanket legal residency to unauthorized immigrants. It mandated fines, background checks and waiting periods and was tougher than a 1986 law that was more in line with a traditional definition of “amnesty.”

“This bill includes numerous punishments for unauthorized immigrants who broke the laws, including paying fines and other legal sanctions,” Alex Nowrasteh with the libertarian Cato Institute told PolitiFact in 2013. “If it was amnesty they would be legalized immediately with no punishment, no process. They would just be forgiven and handed a green card.”

Since then, Manchin has sought to find a middle ground in the Senate. However, facing a tough reelection campaign in a solidly pro-Trump state, he has often emphasized his stance on toughening border security.

In a press release from February 2018 — after the Senate failed to reach agreement on legislation protecting undocumented immigrants who came to the United States as children, along with new investments in border security — Manchin said, “I share the president’s commitment to border security. That’s why I voted for his plan.”

Herring, his spokesman, added that Manchin “also supports Kate’s Law, which would increase penalties for criminals who re-enter the country illegally.”

Planned Parenthood

The national health and family-planning clinic network has been a longtime target of anti-abortion groups because it provides abortion services. By law, federal money cannot be used to pay for abortion services, but federal dollars do flow to Planned Parenthood for other purposes — something that rankles opponents of abortion, who say that money is fungible.

We have previously looked at what Manchin has said and done about Planned Parenthood.

Critics pointed to photos Manchin took with constituents carrying pro-Planned Parenthood signs, although he has also taken photos with supporters carrying anti-Planned Parenthood signs.

Manchin has said that he’s personally anti-abortion but supports federal funding for Planned Parenthood as long as the funding comports with existing federal law.

In a statement to PolitiFact, Herring said that Manchin “has always been pro-life. Planned Parenthood doesn’t receive taxpayer money for abortions. The only Planned Parenthood in WV provides basic health care services and screenings, and Sen. Manchin doesn’t want to take away health care from women.”

Our ruling

Morrisey said Manchin “stands with Hillary Clinton and DC Dems on gun control, higher taxes, amnesty, and Planned Parenthood.”

We’re not entirely sure what Hillary Clinton has to do with this, but Morrisey can point to some evidence to support Manchin’s loyalty to Democratic orthodoxy in each of these four areas. That said, Morrisey glosses over important nuances. On guns and immigration, for instance, Manchin has often worked with Republicans to find common ground, rather than taking a strong Democratic line.

On taxes, Manchin did vote against the Trump-backed tax bill, but his position would have left the tax code the same, rather than imposing “higher taxes.” And Morrisey ignores Manchin’s personal anti-abortion position in focusing on Manchin’s support for Planned Parenthood; Manchin supports the status quo on federal funding, which is to provide it only for non-abortion services.

We rate the statement Half True.

This article was originally published by PolitiFact

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Fact-check: Did the United States Recently Become the No. 1 Energy Producer in the World?

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President Donald Trump on stage during a campaign rally at WesBanco Arena, Saturday, Sept. 29, 2018, in Wheeling, WV. Photo: AP

Energy production — particularly coal production — has long been an integral part of West Virginia’s economy.

During the 2016 presidential campaign, President Donald Trump vowed to send coal miners back to work and end the regulations on carbon emissions sought by President Barack Obama. Coal-producing states, particularly West Virginia, responded with strong support.

So when Trump came to Wheeling, W.Va., for a rally on Sept. 29, it was no surprise that he touted the nation’s record in harnessing its energy resources.

“The United States is now the No. 1 energy producer in the world,” Trump said at the rally. “That happened just recently.”

Is he correct?

Petroleum and crude oil

According to the Energy Information Administration, the federal office that collects energy statistics, 2017 data — the most recent available — shows that the United States ranks first in production of petroleum and other liquid fuels. The United States has a sizable lead over both Saudi Arabia and Russia.

 

It’s been a tighter contest for a subset of petroleum production — crude oil production — but the United States has a case for the top spot as well.

EIA projections released in September 2018 show that the United States likely edged past Saudi Arabia and Russia in crude oil production sometime this summer.

Natural gas

The United States also ranks first in natural gas production, according to EIA data for 2015, the most recent year available. Russia is the only close competitor in this category.

Coal

This is the one category where the United States is not the leader.

According to 2016 data from the Energy Information Administration, the United States ranked third, behind China — the world’s clear leader — and India.

The question of timing

Beyond the question of who’s No. 1, Trump also said that this achievement “happened just recently.”

With the exception of the recent shift in crude oil, that’s not the case.

As we noted in a 2015 fact-check, the United States has been the world’s largest oil producer since 2012, and the largest natural gas producer for years.

Our ruling

Trump said, “The United States is now the No. 1 energy producer in the world. That happened just recently.”

The United States does rank first internationally in petroleum, crude oil, and natural gas production, though it ranks third in the world in coal production. Meanwhile, only for crude oil was the No. 1 spot achieved recently. For petroleum and natural gas, the United States has ranked first for years.

We rate the statement Half True.

This article was originally published by PolitiFact

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