Special session idea comes and goes after confusion about who could vote

Lawmakers told reporters on Thursday that they’d been summoned to Charleston on Saturday by a lame-duck governor to consider a potentially contentious energy bill that could benefit corporations. There was no official call from Gov. Jim Justice, but the December timing prompted a necessary, time-sensitive question among members: who was legally allowed to vote — current members or individuals who won their November elections?

By the end of the day — following the confusion, a dig into state code and no word from Justice — several legislative leaders told West Virginia Watch that the special session was no longer going to happen due to complications of swearing in new lawmakers. A spokesperson for Justice didn’t provide a comment for this story.

Attorneys with the Secretary of State’s Office said that state code amended in 1931 required that newly-elected lawmakers in attendance for a special session take oath and participate. 

More than two dozen new members, mostly Republicans, would have been sworn in if present. Legislative interim meetings, already scheduled Dec. 9-10 for current lawmakers, also complicated the timing of a special session. 

Retiring Sen. Mike Caputo, D-Marion, has served in the Legislature since 1996. “Well, now I can say I’ve seen it all,” he said.

Lawmakers found out about the possible special session on Wednesday evening. 

Caputo said, as of Thursday afternoon, that no one had given him direction about whether he’d need to serve one last time on the Senate floor. “I had planned to be at [December interim meetings] to finish out my duties. I may not even be eligible to do that. I need to figure all this out,” he said. 

A spokesperson for the Secretary of State explained how state code would have guided the matter, saying, “ … If there is an extraordinary session, the Secretary of State is to deliver the certificates of election to the Legislature at the next ensuing session, which would be the extraordinary session and the newly elected legislators from the 2024 General Election would take office.”

Sen. Mike Oliverio, R-Monongalia, said the whole situation meant lawmakers should proceed with caution. 

“I would like to better understand why the governor feels that the timing is so important to move so quickly when this could easily be in January when we don’t have the confusion of which members are duly serving at this point,” he said prior to the announcement of the cancellation. 

Legislation would have benefitted energy corporations, offered tax break

Lawmakers said they were expecting to consider a renewable energy-focused bill that would make changes to the state’s Certified Industrial Business Expansion Development program. It would have expanded corporations’ ability to operate in the state. 

House Finance Chairman Vernon Criss, R-Wood, said he didn’t expect the bill to cost the state money.

“Sometimes there are things that come in that are critical, that need to be done before the end of the calendar year for a tax standpoint or a permit standpoint. Maybe this is something that needs to be done that same way, we just haven’t been told that information,” Criss said. “Frankly, we don’t like being pressured like that from the House side.”

The Certified Industrial Business Expansion Development program was meant to bring businesses with renewable energy sources to the state; lawmakers signed off on it during a special session in September 2022.

The next day, companies under Berkshire Hathaway purchased more than 2,000 acres in Jackson County to build a titanium melt facility powered by a solar energy microgrid. It was a $500 million investment, according to the Parkersburg News Sentinel. The project was also to deliver solar energy to all of the customers within a special business development district.

Berkshire Hathaway did not return a request for comment by publication about the special session’s proposed legislation. 

The 2022 legislation requires electricity generated from renewable sources within the district to be used within the district or delivered to the wholesale market. Lawmakers removed the Public Service Commission, the state’ utility regulator, from any oversight.

The bill also created no more than two 2,250-acre certified high-impact industrial business development districts that must be located on land sold or leased by the state. 

Legislation floated to lawmakers for the special session would have allowed up to six development districts and 5,000 acres. It also would limit that no more than three high-impact industrial business development districts may be in the same service territory of an electric utility operating in the state.

Criss, who voted for the 2022 measure, said First Energy electric company, which services parts of West Virginia, was not in favor of the measure and could result in them leaving the state.

“They feel that in their long-term planning for more investment in West Virginia, because of the natural gas situation and looking at building new energy sources for electricity, that they are definitely looking at West Virginia to invest in,” he said. “But, if this bill passes, that may change their minds and go elsewhere. We could very well lose out on some energy producing stations.”

The proposed measure, according to Criss, would also give special tax treatment to corporations, allowing eligible electric generation units to be assessed at a salvage value for personal property taxes. It would lower their property tax burden and potentially impact the county’s property tax collection.

Electric generating units authorized under this code section will be assessed at a salvage value for personal property taxes.

Despite the growing Republican supermajority, Criss didn’t expect that a bill like that would sail through given the timing and potential impact on utility companies. 

“People don’t like to be rushed on something as critical as this,” he said. “They would like to have a debate.”

House Minority Leader Sean Hornbuckle, D-Cabell, said he was trying to gather more information.

”Not sure if this is a Gov. Justice or Governor-Elect Morrisey initiative, but the House Democrats’ position is to help West Virginians by passing common sense measures regardless of the internal battles that are occurring on the other side of the aisle,” he said.

Senate president selection planned for Sunday 

Senate members are expected to vote on their next Senate President on Sunday. Current Senate President Craig Blair, R-Berkeley, lost his primary in May. 

Blair will remain in a nonvoting presiding officer role until Jan. 8.The Senate President race narrowed to three candidates: Sen. Tom Takubo, R-Kanawha, Sen. Randy Smith, R-Tucker and Sen. Eric Tarr, R-Putnam.