The spill of thousands of gallons of crude MCHM into the Elk River knocked out the water supply of 300,000 West Virginians. Senate Democratic Leader John Unger of Berkeley County proposed a bill that circumvents the courts.
"The attempt is to give people an option," Unger told the Daily Mail's Whitney Burdette. "I know folks who don't want to file a lawsuit."
Unger would create an Office of Elk River Spill Victims' Compensation, which would administer a new Elk River Spill Victims' Compensation Fund, which would come from "responsible parties"— meaning deep pockets that may be connected to the leak. He said this is an alternative to class-action lawsuits.
But West Virginia already has such an office. It is called the judicial branch of government. Its responsibilities include hearing sworn testimony and reviewing evidence to determine whether a tort — a wrongful act or an infringement of a right — has occurred.
Using a jury system that dates back at least 800 years to the Magna Carta, the courts determine what the damages are, who is responsible and who has to pay.
This is a matter for litigation, not legislation. Citizens do have the right to resolve disputes in the courts.
The problem in West Virginia is that some judges and juries lean too heavily in favor of one side, which creates the perception in some quarters of the state being a judicial hellhole for businesses.
Unger's proposal would circumvent the courts. Under his plan, the Legislature would simply presume the water company and others caused pain and suffering, force the companies to pay up and dole out the money as the state sees fit.
"The list of due process rights SB 626 would deny to the 'responsible parties' is a long one," Laura Jordan, water company spokeswoman, said.
Fortunately, most members of the Senate Natural Resources Committee also had a problem with the proposal, which was sent to them for their approval. They effectively killed it.
And killing bad bills is a primary job of legislators. As well-intentioned as Unger may think his proposal is, his bill would deny the water company and others the presumption of innocence.