The Dome Report - 2020 West Virginia Legislature Updates, Issue 3

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The 2020 Regular Session of the West Virginia Legislature recently passed the one-third mark and, as of this writing, the House has introduced 1155 bills, while the Senate introduced 656. We will continue reporting on and tracking the progress of significant legislation during the course of the session. During the legislative process, certain critical deadlines are imposed by the Legislature that impact the consideration of pending bills and their chances of success. Those dates are as follows:

  • February 11: Last day to introduce bills in the House of Delegates. This does not apply to bills originating in committee.
  • February 17: Last day to introduce bills in the Senate. This does not apply to bills originating in committee.
  • February 23: Bills are due out of committee in house of origin.
  • February 26: Last day to consider bills on third reading in house of origin ("Cross Over").
  • March 7 (midnight): Session ends.

SB 94
So far, only two bills have completed legislation, the most significant of which is Senate Bill 94, a popular bipartisan effort that provides persons with physical disabilities the opportunity to vote by electronic absentee ballot.

Other bills of interest include:

SB 275
The long-standing desire of the business community that an intermediate court of appeals be created in West Virginia moved one step closer to reality as the Senate Judiciary Committee advanced Senate Bill 275 despite heavy opposition from the trial bar. Senate Bill 275 would create an Intermediate Court of Appeals, which would hear, by right, all appeals from Circuit Courts after June 30, 2021. Appeals from decisions from that court to the Supreme Court of Appeals is by discretion only. Decisions of the Intermediate Court are accorded precedential effect by the lower courts. As introduced, the judges were to be appointed by the Governor, with the advice and consent of the Senate. However, the Committee amended the bill to provide for their non-partisan election to 10-year terms instead. Vacancies on the Intermediate Court would be filled by the Governor. The bill would establish northern and southern districts within West Virginia, each with a 3-judge panel to hear appeals arising out of its geographical area. With an annual price tag estimated to be $6.3 million, Senate Bill 275 now goes to the Finance Committee for further consideration. As he did last year, Governor Justice gave support to the concept stating, "it is a part of putting us on our way to restore honor and integrity to our system even better.”

HB 2008
House Bill 2008, which provides that when no candidate receives at least 40 percent of votes cast in the nonpartisan election in a division for Justice of the Supreme Court of Appeals, a runoff election between the two highest candidates is to be held concurrent with the general election. As reported previously, this bill was amended in the House Judiciary Committee to apply to the 2020 election when three positions on the 5-person court are up for election. In an apparent sign of leadership's interest in moving this bill, it was read a first time before being committed to House Finance, its second reference.

HB 2660
The Legislature also has under consideration several bills that may have an impact on electricity rates for industrial and consumer users. For instance, House Bill 2660, a carry-over bill from last year, allows for expedited cost recovery from captive ratepayers of a natural gas utility before the asset is proven to be used and useful, as is usually required in a normal rate-setting case. This bill further allows recovery of prospective investments and removes caps on the related surcharge that protect ratepayers from frequent and significant rate increases under the surcharge mechanism. This bill has been single referenced to the Energy Committee.

HB 2722
Another carry-over bill from last session is House Bill 2722, which would impose a requirement that utilities only use statutory tax rates for ratemaking purposes and would eliminate consolidated tax treatment. This means a utility can charge ratepayers for the full statutory tax rate, even if the utility did not actually pay that rate. The proposal also would require utilities to calculate related tax deductions and credits to reduce rates if an expense or investment is allowed to be included in rates. This bill has been single referenced to the Energy Committee.

HB 3072
Several bills that have been introduced would seem to foster the growth of renewable and/or alternative energy sources. For instance, House Bill 3072 would permit electricity consumers to enter into solar purchase power agreements with developers who design, permit, finance, and construct solar facilities on a customer's property, and then provide generation supply to the customer at a fixed rate. In exchange, the developer would receive tax credits and "other benefits". This bill has been double referenced to the Energy and then Judiciary Committee.

SB 611
Senate Bill 611 exempts from the jurisdiction of the Public Service Commission, and regulation as a public utility, certain third-party owned generating facilities of renewable and alternative sources provided they do not exceed 2 Megawatts and are located on and designed to meet only the electrical needs of the premises of a retail electric customer and are leased to the retail electric customer; or the output of which is subject to a power purchase agreement with the retail electric customer. This bill has been single referenced to the Economic Development Committee.

SB 583
Finally, Senate Bill 583, which purports to encourage electric utilities to provide a portion of the state’s electricity needs by authorizing them to plan, design, construct, purchase, own and operate renewable electric generating facilities and energy storage resources by receiving concurrent surcharge cost recovery of those investments from the captive ratepayers. This mechanism of advanced cost recovery also would seem to bypass the normal requirement to first prove that such facilities are used and useful. The bill was double referenced to the Committee on Energy, Industry, and Mining, then to the Committee on Finance.

HB 4562
The House of Delegates introduced a companion bill, HB 4562, which was single referenced to the Energy Committee.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Privacy Officer
JD Supra, LLC
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