When considering why the West Virginia Division of Forestry is not effective in regulating the timber industry, it is tempting to point to the inherent conflict of interest within the Division of Forestry. The Division is supposed to regulate timbering while at the same time promoting the timber industry. Approaching either goal with enthusiasm would inevitably get in the way of the other.

From considering the Division of Forestry it is apparent that it does not approach regulating timbering with much enthusiasm. This may be a result of its promotion goal getting in the way. It may be a culture of the agency. It may be a combination of things.

These are not, however, the only, or even the most serious, impediment to enforcement. The serious impediment -- and the one the Legislature could most easily fix -- is the law itself. It would take enormous enthusiasm for the Division of Forestry to effectively regulate timbering armed with only the tools the present law gives it. Given its historic role as a branch of the timber industry, the result is predictable: Enforcement is ineffective.

The basis of the current law is the Best Management Practices (BMP’s). These are a set of steps a responsible operator would take to prevent erosion, etc. They suggest things such as use of culverts where needed, water bars, reseeding disturbed areas, etc. The West Virginia Division of Forestry publishes a pamphlet of about 30 pages which contains these Best Management Practices.

The BMP’s are nominally mandatory under present law. The difficulty is that the present law puts enforcement in the hands of an agency (Division of Forestry) that is not at all enthusiastic about enforcement and creates an ineffective procedure for enforcement. The result is that there is little enforcement.

Under current law, the inspector has to see erosion occurring or make a judgment that actions by the operator have the potential to cause erosion before he or she may take enforcement action. When he sees it, he can tell the operator to correct the problem. The difficulty with this approach is that it has almost no chance of encouraging compliance when the operator is not there.

Just as in any industry, a timber operator has to do some things that do not make a profit. He makes money cutting trees. The only reason to do the things such as reseed or install water bars is either to be a good citizen or because somebody makes him do it. In an economy that runs based upon profit, it is too much to expect that companies will do things such as reseeding disturbed areas, installing culverts, installing water bars, etc. suggested by the BMP’s voluntarily. Those are not profit making activities.

Under current law, the operator intent upon making money would never install any of the erosion control devices nominally required by the Best Management Practices. There is a good chance that the inspector will never visit the site. If he does, all the operator risks is having to install the erosion control devices which the law requires. There are no fines. There is no incentive to do erosion control on every site; the easiest way is to do it only after you are told you have to.

If we ran traffic control that way we could all go 100 miles per hour until we got caught. Then we could start going 65. There would be no incentive to go slower until caught.

As current law is administered, the inspector has to see erosion occurring before he can take enforcement action. An operator is free to never install any of the Best Management Practices designed to control erosion. If it is not raining the day the inspector comes, there is no erosion to observe and no enforcement action. Simply failing to follow the BMP’s is not a violation.

In general, there are two approaches to environmental regulation. One is to have a set of steps designed to prevent the pollution. Following this set of steps is considered compliance. The law assumes that the steps are well enough designed that if they are faithfully followed they will prevent pollution.

This is the same model as with auto safety. We have laws requiring brakes, headlights, horns, etc. Not having one of those pieces of equipment is a violation even if the auto has never been in a wreck and the lack of this equipment has never caused any harm to anyone. We have faith that this list of required equipment adds up to a safe car. Even when there is absolutely no evidence that this particular car has caused or is causing an unsafe roadway, lacking the equipment is a violation.

The second approach is to mandate a result and ignore steps designed to achieve it. Should someone manage to achieve the result in spite of doing everything in the worst way possible, then there would be no violation. Were automobiles regulated that way people could speed, drive with no headlights, brakes, etc. So long as they avoid an accident, they are in compliance.

For timbering, current law takes the second approach. If there is no sediment in the stream, there is no violation. While this approach would work if there were an inspector present at all times on all jobs, this is impractical. The only way to ensure there is no erosion is to require that all timber operators take the steps that will control erosion. This will assure that there is no erosion even when no inspector is present.

The law should takes both approaches with the emphasis upon the first approach. It should assume that the BMP’s need to be installed to keep mud out of the streams. It should assume that even if there is no mud in the streams now, absence of BMP’s makes mud in the stream inevitable at the next rain. Failure to install the BMP’s should be a violation whether there is mud in the stream or not. Mud in the streams should still be a violation.

This combination of both approaches is, more or less, the approach the Surface Mining Act takes. For example, it requires a sediment control pond. Even if there has been no rain for a month and the pond doesn’t have any water to treat (in this context "treatment" is catching moving water and holding it until the dirt settles out) the company still has to have one. It doesn’t matter that there is no water that day and that the same amount of sediment (none) would wash into a receiving stream whether the pond was there or not. They have to have one because eventually it will rain and, if the pond is not in place, there will be sediment in the streams.

The law on timbering should do the same thing. It should mandate the BMP’s and assume that, if followed, they will keep mud from the streams.

If the company does not install the BMP’s, there should be substantial fines, not just orders to comply in the future. That is the only way to give companies an incentive to install water bars, culverts, etc. (the things the BMP’s suggest) at every job, not just after the inspector tells it that it must.

In its public statements, the Division of Forestry has taken the position that ordering operations to stop timbering until they have complied with the law is more effective (and more expensive for the company) than a system of fines would be. The Division of Forestry is wrong.

In any activity -- whether mining, drilling gas wells, running a chemical plant, or just about anything else -- there are things a company has to do which do not produce any profit for the company. Treating its waste water before releasing it does not make any money for a chemical plant. It costs money. The chemical plant does it, and the law requires it, because the consequences to society of not doing it would be so substantial.

The same thing is true of coal mines. They don’t make a dime on reclamation, sediment control, or any other pollution control activities. They do it, and the law requires it, because it is good for society as a whole.

Chemical companies, mining companies, and almost all other industries do these things that don’t produce any revenue as a matter of course. They build these money losing activities into their operations because the law and their duties to the public good require it.

The logging industry does not do it that way, or at least not the segment of the logging industry that the Division of Forestry issues compliance orders to. It does only the money making activities. If it is caught and is ordered to do the sediment control things which are good for society even if they don’t produce revenue for the company, then the company stops and does those things. Because these sediment control things are done all at once, in response to an order, rather than spread out through the course of the job, the Division of Forestry considers this a major expense imposed upon the company, an expense that is more effective than a fine.

The truth is that this is an expense which operators intent upon following the law and acting responsibly bear routinely. It is spread out throughout the job and is not as visible but it is there just the same. When the Division of Forestry forces a company to take these pollution control measures, it only requires a company to spend the time and money it should have been spending all along on pollution control.

Given these incentives, it is no wonder that many companies don’t follow the law. That is the economically smart thing to do. An operator only driven by profit would never spend any time and money on pollution control and hope he never gets caught. If he never gets caught, he makes more money. If he does get caught, there are no fines. He only has to spend the time and money on pollution control that a more responsible operator would spend as a matter of course.

It is true, of course, that some operators will follow the law even when it is not in their financial best interest to do so. Some people will stop at traffic lights when there are no other cars around. Some people will observe the speed limit even when they are the only cars on the road.

We cannot, however, run a regulatory program of a major industry just based on hope that the companies will act in a way that is against their financial interests. The system has to be set up so that ignoring the law and getting caught is more expensive than following the law. There have to be fines, punitive cessation orders, or something to make ignoring the law more painful than following it. That is the only way to ensure that we will have compliance even when the inspector is not present. Until we do that, we will continue to have what we have now. We will continue to have an industry that often ignores the law because it can do so with impunity.

The culture of an agency is hard to describe, hard to pin down. Perhaps the Division of Forestry does not enforce the timbering law because its culture is cutting trees, not enforcing pollution control laws. Regardless of how we describe the culture of the agency, however, it will never be effective in regulating the timber industry until it has a law that builds in incentives to follow it. The problem is not just the agency’s attitude; the problem is the law it has to work with.