August 19, 2015

The Corporations Funding The Lawyers To Fight The Clean Power Plan

Martella Jr. co-leads the Environmental practice group at Sidley Austin LLP.
Martella Jr. co-leads the Environmental practice group at Sidley Austin LLP.

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.

Below 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 membersaid, “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.

And, the Electric Reliability Coordinating Council, a group of power and coal companies run out of Bracewell & Giuliani that also pays Hunton & Williamssaid the that final plan still intrudes into state affairs and that it contains issues that could expose it to significant legal challenges.

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

•   Arch Coal

•   DTE Energy

•   Duke Energy

•   Energy Future Holdings

•   Southern Company

Hunton & Williams’ Utility Air Regulatory Group:

•   American Electric Power

•   Edison Electric Institute

•   Duke Energy

•   Energy Future Holdings

•   Southern Company

Troutman Sanders:

•   Alpha Natural Resources

•   Arch Coal

•   Cloud Peak Energy

•   Energy Future Holdings

•   National Mining Association

•   Peabody Energy

•   Southern Company

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 GroupPacific Legal FoundationNational 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 publicly 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.