Lawyers from coal-dependent states, led by West Virginia, are challenging President Obama’s Clean Power Plan. Joining their effort is an army of industry-funded law firms that specialize in fighting the Environmental Protection Agency (EPA). Together, they will argue that the EPA does not have any authority under Section 111(d) of the Clean Air Act to issue the carbon regulations; they will also contest the legality of the “fence line” used to set state emission targets. Yet, buried in coverage of the litigation is the fact that the coalition suing the EPA is connected to some of the largest electric utility companies in the country – and many have purposefully kept themselves at arms’ length so that their customers never know they are funding lawyers who are working to stop one of President Obama’s main pillars to fight climate change. Policymakers, regulators, and customers should know what electricity companies are secretly working together with coal companies to sue the EPA.
Above is a network map built using the LittleSis free database. It details connections between powerful people and organizations; the data is derived from government filings, news articles, and other reputable sources. This map illustrates the links between the handful of lawyers involved in the litigation against the Clean Power Plan and the companies paying their firms.
The National Mining Association (NMA), shown in the middle of the LittleSis network map, filed a stay with the EPA to stop the plan from going into effect earlier this month. This is in addition to a stay filed on August 5 by the coal-dependent states that has recently resulted in the attorneys general filing an emergency petition in the U.S. Court of Appeals for the District of Columbia Circuit asking for federal judges to postpone the rule’s deadlines.
NMA was represented by Troutman Sanders in Michigan et al. vs. EPA, which was the case decided in June regarding the mercury and air toxics standard (MATS). NMA is also a member in the Utility Air Regulatory Group (UARG), run by attorneys at Hunton & Williams. Clicking on NMA in the network map will highlight the connections and reveal the manner in which the trade association is linked to the companies and/or lawyers.
After the Clean Power Plan was released, The New York Times reported that Peter Glaser, an attorney at Troutman Sanders, has been holding meetings with Roger Martella Jr. of Sidley Austin to devise the legal strategy to throw out EPA’s regulation via the courts. Additionally, the American Coalition for Clean Coal Electricity (ACCCE), another trade association that is also a member of the Utility Air Regulatory Group and includes Southern Company as a member, said, “It’s illegal and we will not stop opposing it until it is withdrawn completely.” ACCCE is shown above NMA in the network map and is linked to other companies besides Southern.
The Electric Reliability Coordinating Council, a group of power and coal companies run out of Bracewell & Giuliani that also pays Hunton & Williams, said the that final plan still intrudes into state affairs and that it contains issues that could expose it to significant legal challenges.
And when the EPA was formally published in the Federal Register, Paul Monies of The Oklahoman reported Baker & Hostetler LLP is representing Oklahoma Attorney General Pruitt in the lawsuit. Attorney David Rivkin said, "They're really trying to hurt coal on every possible regulatory means."
Here are some of the companies that fund law firms known to be working against the Clean Power Plan:
Bracewell & Giuliani’s Electric Reliability Coordinating Council:
• Ameren
Hunton & Williams’ Utility Air Regulatory Group:
Troutman Sanders:
Sidley Austin:
In 2011, the U.S. Supreme Court ruled in American Electric Power v. Connecticut that corporations cannot be sued for greenhouse gas emissions under federal common law, because the Clean Air Act delegates the management of carbon dioxide emissions to the EPA. Peter Keisler, a partner at Sidley Austin, argued on behalf of the petitioners:
• American Electric Power
• Cinergy Company
• Southern Company
• Xcel Energy
Earlier this year, Keisler, along with Roger Martella Jr. also argued on behalf of the Pacific Legal Foundation in a case led by Murray Energy seeking to preemptively throw out the Clean Power Plan. The original plaintiffs before the court were Murray Energy and West Virginia. Peabody Energy, the Utility Air Regulatory Group, Pacific Legal Foundation, National Mining Association, the American Coalition for Clean Coal Electricity, and 13 additional states joined the plaintiffs’ cause. In June, the federal appeals court in Washington DC dismissed that lawsuit as premature.
This LittleSis network map will be updated as polluters fund more attorneys in the fight against the Clean Power Plan. Others with new information are encouraged to build off of this map and connect more companies to the law firms. Not only is it important for people to see these connections, but many will remember that in 2009, Duke Energy was pressured to leave ACCCE after it was caught playing both sides of the Waxman-Markey debate: it publically supported the bill but also was a paying member of ACCCE, which was working to kill the legislation. Duke Energy also quit the National Association of Manufacturers for similar reasons. If utility companies voice support for the Clean Power Plan, it’s crucial to put pressure on them to leave front groups or trade associations working to fight the EPA.
Pacific Legal Foundation Background
Ronald Zumbrun and Ramond Momboise, former advisors to California Gov. Ronald Reagan, founded the Pacific Legal Foundation. The founding results from Lewis F. Powell’s secret memo to a friend at the U.S. Chamber of Commerce titled "Attack on the American Free Enterprise System.” Powell wanted the business community to create non-for-profit law firms; thus, the Pacific Legal Foundation was created. It’s website says it exists to fight “tyranny” engendered by “overzealous bureaucracies and government red tape” and that it is a foe of “government regulators and environmental extremists.” Powell would go on to become a Supreme Court justice.
Patric Morrisey Background
Patrick Morrisey is the Attorney General in West Virginia. Besides leading the states to sue the EPA earlier this year, he recently joined with 15 other states to ask the EPA for an immediate stay of its Clean Power Plan pending the outcome of an impending legal challenge to the rule. From 2004 to 2010, Morrisey was a partner at Sidley Austin LLP. In his campaign to become Attorney General American Electric Power, Alpha Natural Resources, Arch Coal, and Consol Energy, just to name a few, donated to his campaign.
Baker & Hosteler Background
In Michigan v. EPA in which the U.S. Supreme Court in 5-4 vote struck down the EPA's carefully crafted rules to limit the emission of mercury and other toxic pollutants from oil and coal power plants, David B. Rivkin Jr. of Baker & Hostetler represented the Cato Institute, which in turn has received millions from energy interests including the David H. Koch Foundation and ExxonMobil. Rivkin worked in the Reagan Justice Department and was the associate general counsel at the Department of Energy under George H. W. Bush. More recently, he has been part of the legal effort to strike down Obamacare and also has defeated lawsuits aimed at holding former Secretary of Defense Donald Rumsfeld personally liable for alleged torture in Iraq.
Rivkin also argued the cause for petitioner State of Texas in Texas v. EPA, which was decided in July 2013. The U.S. Court of Appeals slapped down Texas’ attempt to block the EPA from controlling the state’s system for issuing permits to power plants.