New Law Clinic at WVU to Focus on New, Gauley River Watersheds

By C.V. Moore
The Register-Herald Mon Jan 16, 2012, 12:01 AM EST

FAYETTEVILLE — A new law clinic at West Virginia University, funded by millions of dollars in legal settlements between environmental groups and coal companies, will focus much of its effort on the New and Gauley river watersheds.

The first four law school students at the Land Use and Sustainable Development Law Clinic in Morgantown begin their work this week, says the organization’s managing attorney, Nathan Fetty.

“It’s exciting to finally start to roll this thing out and have some real world impact,” he says. “It’s going to be an exciting semester for us and the law school as a whole.”

WVU law students will work under the supervision of experienced, licensed attorneys to provide free legal services related to land use and natural resource conservation to individuals and groups, though they won’t be involved in litigation.

“The idea is generating documents or giving other legal assistance, so long as it doesn’t involve being in a particular lawsuit,” says Fetty.

For example, the students could draft conservation easements for land owners or land trusts, or draft local land use plans and ordinances for county and municipal governments, he says.

In return, the second- and third-year law students get school credit and the benefits that come with practical experience.

“There are just a handful of these land use clinics across the country,” says Fetty. “The idea was that West Virginia does not have the resources for land and water protection like surroundings states, so this clinic is an effort to beef up West Virginia’s resources to protect land and water. For us to have this clinic in West Virginia is a big feather in our cap as far as we’re concerned.”

The clinic resulted from lawsuits brought by environmental groups against coal companies for pollution discharges. Instead of penalties going into the general funds of federal coffers, the litigants decided to use the money to create a “supplemental environmental project,” or SEP.

“In other words, we’re funded by virtue of those payments by coal companies to settle these lawsuits,” says Fetty.

The clinic will work closely with the West Virginia Land Trust, which will receive about $4.5 million from settlements, mostly from a case involving Alpha Resources.

Settlement money from these cases will also be used to clean up pollution near the coal operations.

One lawsuit, brought by the Ansted Historic Preservation Council and the Sierra Club against Consol’s Powellton Coal for water quality violations on a Gauley Mountain strip mine, provided $1.2 million for projects in the New and Gauley watersheds.

A $1.8 selenium pollution settlement between Arch Coal and several environmental groups expands the clinic’s focus to the Kanawha watershed, and $1 million from Patriot Coal will allow the clinic to work more broadly across the state.

So far, says Fetty, the clinic has received inquiries about conservation easements — legal instruments that allow land holders to protect their property in perpetuity by restricting development — and local ordinances. He says his work to this point has been research, writing, maintaining client contact and visiting communities to learn about their objectives.

One of the clinic’s focuses, wastewater, is a problem Fayette County faces in many of its aging water treatment facilities, which in turn pollute the New and Gauley rivers with fecal coliform bacteria.

Fetty would not comment on the specific groups he’s partnering with in Fayette County because he says the projects are in very early stages. However, he did say he’s talking “with local watershed groups, local government officials, individual community members and landowners, and business people all across the spectrum.”

A spokesperson for the Ansted Historic Preservation Council, the grassroots group that originally brought suit against Consol, had not heard anything about the clinic’s projects and hoped they would benefit those in the Ansted area who live near the coal operations.

For now, Fetty will head up the clinic, with other law faculty helping as needed. In the upcoming months, Fetty says he will be hiring other lawyers and staff to oversee more students and tackle more projects. Later in 2012, he says he will be looking to hire a professional planner and administrative support.

A native of Roane County, Fetty earned his law degree from WVU and worked in public interest law ever since. His background is in environmental law, coal mine health and safety, and consumer protection. Before practicing law, he worked for the West Virginia Rivers Coalition.

— E-mail: cmoore@register-herald.com