CHEYENNE - Wyoming’s 59th Legislature was a model of self-restraint and modest achievement. Faced for the first time in five years with virtually no budget surplus, the legislators fine-tuned existing programs and took incremental approaches to pressing issues. They created tools for better land use management and laid the groundbreaking groundwork for underground isolation of CO2 pollution. This careful, measured agenda befits the temperament of the Wyoming citizenry in 2008.
   Or so they tell us. But there’s another way of looking at the achievements of the 59th Legislature. 
   This contrary view holds that the lack of a budget surplus was an accountant’s gimmick: in fact there was as much as $600 million that would have been called a surplus in any other year. The carbon sequestration bill was not that special – it just confirmed what courts in other states have already decided, and left a courtroom full of questions unanswered. The land use bill that supposedly brought large subdivisions under control has a loophole as big as – well, a large subdivision. And in areas where Wyoming might benefit from government action – health care reform, for instance, or policing water discharged in coal-bed methane operations –“self-restraint” equaled inaction.
   Start with the budget. The governor’s proposed biennium budget and the Joint Appropriations Committee’s subsequent draft amounted to about $3.5 billion (add in various dedicated revenue streams going to education and savings, and the total rises to about $7.8 billion). That left about $35 million for legislators to “play” with – a pittance compared to budget surpluses in recent years of up to $1 billion, fueled by severance tax revenues. 
   The starting point in Wyoming’s process is the “standard budget” drafted by the Budget Office, which assembles from state agencies all the elements required to keep state government running, from the mammoth Department of Health to the miniscule Board of Registration in Podiatry. Agencies can then put in an “exception” request for additional funding, but the safest haven is the standard budget – once you’re in it, it takes a big crowbar to get you out. 
   During the surplus years, legislators reminded us constantly that they needed to keep the standard budget reasonably small, because the boom would someday end, as all past booms have. Surpluses were appropriated for boom-period exceptions – often one-time capital construction efforts that wouldn’t need to replenish for a long time, or endowments, or emergency needs tied to the boom itself. Extra highway funding, for instance, for roads battered by oil tankers and heavy equipment. An endowment to preserve dwindling wildlife habitat. Or bailouts for desperate local goverments dealing with rapid growth and aging streets and sewers.
   But in 2008, a bunch of those “exception” expenditures came in from the cold – they became part of the standard budget. $200 million for highways. $108 million (of a total $350 million) in funds for local governments. Cost of Living (COLA) raises that didn’t used to be in the standard budget. Mental health programs. New government positions that started as exceptions and now have become standard. 
   In addition, the legislature in recent years increased the percentage of severance tax revenue it directly socks away in permanent mineral trust funds. And the governor and Joint Appropriations Committee, in an unusual meeting of the minds, agreed to redirect even more funds this year to the Legislative Stabilization Reserve Account – one of the “coffee cans” of cash in the budget closet – [as well as funds for the wildlife trust fund], General Electric’s new ‘clean coal’ research center at the University of Wyoming, and other projects, taking even more dollars off the table before the full legislature went to work. Even Senate Appropriations Chairman Phil Nicholas admitted: “We have grown government pretty massively.”
   Many of these things are worthy and necessary expenditures. But by presenting a budget with most of them embedded, leadership was able to say that there simply wasn’t any budget surplus to use for new or different things. Like funding for a proper juvenile justice system, and for probation officers for early intervention. Like money for innovative health insurance larger than a small pilot program (which failed in this session anyway). Like an expanded Hathaway scholarship program for Wyoming college students. 
   There are many other government initiatives that might be suggested, good and bad – everyone has his or her pet project. Had the legislature felt more flush, it might have considered these and other programs. But there was little energy for anything new, or ambitious, and the excuse was: there’s no surplus this year.
   That depends on who’s keeping the books.
   Two bills addressing underground carbon sequestration were touted as putting Wyoming on the cutting edge of global warming solutions, the first state to create a framework for storing CO2 from fossil fuel-burning power plants – the mainstay of Wyoming’s coal industry – in underground in “pore spaces.” The bills put the state Department of Environmental Quality in charge, and established that owners of the surface above such spaces also owned the potential storage space underground.
   Was this a gutsy move? Not really. Rep. Tom Lubnau (R-Gillette) had three binders of case law affirming that indeed the courts assign these rights to surface owners. If mineral owners – often different from the surface owners in Wyoming, and often powerful energy corporations – thought there was any question about this, they would have stopped the bill, as they have often demonstrated they can do in Wyoming (e.g., Coal Bed Methane water regulation). Instead, they got compliant lawmakers to insert language assuring them that their current contracts and use of pore spaces – oh yes, they’ve been sticking stuff down there for years – will not be superceded by the new law.
   In fact, the hard questions about carbon sequestration were not resolved by the 59th legislature. They lie ahead. Who owns the gases that are in pore spaces to begin with? What about a pore space that extends under a neighbor’s property – when the neighbor feels differently about injecting a bubble of carbon dioxide below the basement? What if my mineral is part of the seal that holds the carbon securely in your pore space? Article, 'Some Cautionary Notes About CO2 Sequestration'.
   Then there’s the issue of subdivision regulation – a response to recent alarm over ranches being divvied up by out-of-state developers without county oversight because of a loophole that exempts subdivided lots over 35 acres from regulation. In addition to carving up the open range, these subdivisions are often short on infrastructure – leaving local governments to complete the job after developers fatten their bank accounts and leave town. 
   The governor issued a clarion call for Wyoming to get serious about regulating land use, citizens pealed their concerns at an overflow meeting on “Building the Wyoming We Want” in Casper, and the legislature responded with…a little toot of a bill. The ranching interests that ostensibly want to keep the open range, also want to keep their range options open – including the option of a little unregulated subdividing. So when the legislature passed a law allowing counties to regulate subdivision parcels up to 140 acres, they included an exemption for up to ten units per property parcel. 
   Legislators say this is just a beginning – a flawed foot in the door that they’ll make effective in a later session. Laws are often necessary to resolve conflict, but Wyoming legislators say they want to hone bills until no interest group goes away unhappy. Or at least not the ranching interests and energy interests, which have always held a special place in the heart of Wyoming government. The result, too often, is toothless, we’ll-get-back-to-it-later legislation. Or the legislature backs off completely, kills the bill, studies it over the interim, and comes back another year to plead accommodation to that roomful of lobbyists.
   That was the fate in 2008 of an important bill to regulate water discharged in the production of coal-bed methane – water which some ranchers claim is damaging streambeds in Powder River country, and may do even more damage – because it’s dirtier water – as CBM gets going in the Green River Basin.
   It was the fate, too, of a bill to start up a small pilot health insurance program targeting the working poor – a meager, but important, attempt to address the expensive issue of health insurance. 
   And it was the Waterloo of broad property tax relief: in the face of rapidly escalating property taxes (though still among the lowest in the region), old people on fixed incomes, young people on meager incomes, and all the rest of us whiners too wanted to put the brakes on increases…but there were half a dozen different proposals and nothing major survived.

   This is not to say there weren’t accomplishments in the 2008 legislature. Passage of a tax on helium showed lawmakers can now and then stand up to the powerful energy lobbyists. A bill making dog-fighting a felony was a largely symbolic, but still important, step. A law to pull back the curtain on out-of-state corporations using Wyoming’s lax rules for limited liability corporations as a front for fraud was a significant fix. Though the final bill protected the LLCs’ registered agents – some of whom are lawyers serving in the legislature – from having to keep paperwork on the corporations they represent, it nevertheless will give federal investigators more access to information on the bad operators. And a bill dedicating $20 million to a partnership with General Electric to research clean coal technologies for Powder River coal was a worthwhile gamble on the future.
   One might disagree, though, with the idea that a quiet legislature where everyone gets along is necessarily a good legislature. Good for legislators’ blood pressure, perhaps, but that is not prima facie evidence of real accomplishment.
During the years of acknowledged surpluses, there were hard-fought, sometimes bitter battles over the dollars. But there was also recognition that the boom and its surpluses provided opportunity – including the beginning of new programs that required investment, such as the wildlife trust fund and the Hathaway scholarships. Those innovations will likely provide valuable return for generations to come. 
   Could the 59th budget session have added to that legacy? 
   Sorry, folks. No surplus.
WyoFile columnist Geoffrey O’Gara covers the legislature for Wyoming Public Television.