ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Monday, February 3, 1997 TAG: 9702030095
SECTION: EDITORIAL PAGE: A-5 EDITION: METRO
COLUMN: George Will
SOURCE: GEORGE WILL
IT SOMETIMES seems that in this contumacious country no argument comes to closure. West Virginia even thinks it can act like a semisovereign nation - as though the Constitutional Convention of 1787 never happened and we are still living under the Articles of Confederation.
The Ohio River, 981 miles long, begins at Pittsburgh, at the confluence of the Allegheny and Monongahela rivers, flows briefly northwest and then generally southwest, ending at Cairo, Ill., and the Mississippi. After 40 miles, the river's southern bank becomes West Virginia and trouble begins.
Suppose you are in the barge business, moving freight up and down the Ohio River, which until the opening of the Erie Canal in 1825 was the main highway into the nation's interior, and which still is a significant commercial artery. When you get to the 277 miles of the river that run past West Virginia, that state collects a tax of 4.8 cents per gallon on the diesel fuel it says you use on its portion of the river.
You say you did not purchase the fuel in West Virginia? You say you are not even stopping there? West Virginia does not care. It collects anyway.
This is a dedicated tax imposed on all motor carriers in the state and entirely used for West Virginia's highway fund. Users of waterways pay a 20-cents-a-gallon fuel tax to the federal government, which is responsible for waterways maintenance. As applied to users of the river, West Virginia's tax is unrelated to any service rendered by the state to the payers of the tax. Because the state does nothing to maintain the river, it might just as rationally tax airlines for the fuel burned while overflying the state.
``Almost Heaven, West Virginia'' says the song. ``Altogether impertinent,'' say commercial users of the nation's more than 25,000 miles of navigable waterways. They employ 70,000 people and use 6,000 tugboats and 30,000 barges to haul one-half of the grain exported by the United States and 20 percent of the coal produced, 30 percent of petroleum products and 20 percent of exported logs. These haulers see an enormous potential for mischief in the precedent West Virginia has been setting since it began collecting this tax in 1983.
West Virginia's courts have found no fault with the tax. The U.S. Supreme court should take up this case because:
One reason for replacing the Articles of Confederation with the Constitution, vesting in the national government the power to regulate interstate commerce, was to minimize the states' abilities to interfere with such commerce. In 1787, two years before the Constitution was ratified, Congress enacted the Northwest Ordinance, which declared, ``The navigable waters leading into the Mississippi ... shall be common highways, and forever free ... without any tax, impost, or duty.'' The first Congress under the Constitution promptly re-enacted the ordinance in its relevant particulars, thereby launching the strong ``free rivers'' doctrine.
Clearly West Virginia's tax qualifies as what the Supreme Court has hitherto called an ``unreasonable clog upon the mobility of commerce.'' West Virginia is imposing a toll for mere access to the river. So while the federal government negotiates reductions of trade impediments between the United States and Mexico, it tolerates impediments between West Virginia and Pennsylvania upstream and Kentucky downstream. And imagine the capriciousness in the imposition of the tax, which involves estimating the amount of fuel used by a barge during the estimated time it was on West Virginia's rather than Ohio's portion of the river.
That portion is defined in relation to the low-water mark on the west bank as it existed in 1787, which, given the works of man and the natural wanderings of rivers, may be different today. This adds to the arbitrariness of any determination of how many miles a craft travels on West Virginia's part of the river.
The tax is, of course, an incentive for shipping to hug the Ohio bank. It also might be an incentive for coastal states to try similar taxes on commerce in coastal waters between, say, Baltimore and New Orleans. But most of all it is a retrograde affront to the principle of federal supremacy in such matters.
This tax is particularly unseemly behavior for West Virginia. Sliced off rebellious Virginia in 1863, West Virginia owes its existence to the war that taught a lesson about the limits of the permissible imperiousness of states. After the siege of Vicksburg compelled the city to surrender to Union forces under Gen. Grant on July 4, 1863, the president, who had a way with words, said, ``The Father of Waters again goes unvexed to the sea.'' Even lesser waters should not be vexed by particular states, a matter settled at Appomattox, although the ratification of the Constitution should have sufficed.
- Washington Post Writers Group
LENGTH: Medium: 85 linesby CNB