September 27, 2016

Power Companies Funding Legal Efforts To Overturn Clean Power Plan In Court


Lawyers for the Utility Air Regulatory Group (UARG) were among those who argued against the Environmental Protection Agency’s Clean Power Plan today before the D.C. Circuit Court of Appeals. Recent investigations have revealed that some of the nation’s largest electric utilities have quietly funded this special interest group’s attacks on the EPA’s first-ever limits on carbon pollution from power plants.

Power Companies Leading the Attack

Allison Wood and F. William Brownell of Hunton & Williams represented UARG in today’s proceedings. In its legal filings, UARG has disclosed that it is, “a not-for profit association of individual generating companies and national trade associations that participates on behalf of its members collectively…” However, Hunton & Williams has so far failed to divulge exactly which of the nation’s electric utilities UARG represents in the case.

Thanks to a recent inquiry by reporter Annalee Grant at SNL Energy, long-time suspicions have been confirmed. Public utility companies including American Electric Power, Southern Company, Duke Energy, and Dominion Resources are indeed paying members of UARG, despite having varying positions on the Clean Power Plan litigation.

The SNL Energy investigation also revealed that in 2015 the Edison Electric Institute handed over  $7.7 million to UARG. An EEI spokesperson said the group participates in a number of coalitions. Yet based on publicly available tax documents, UARG appears to be the largest coalition that receives EEI’s monetary support.

Some might be surprised to read that American Electric Power (AEP) and Dominion are paying UARG. Last year, AEP announced it had severed ties with the American Legislative Exchange Council, another group opposed to EPA limits on carbon pollution. A spokesperson for AEP said at the time, “We reviewed our memberships and decided to reallocate resources to other areas of focus including working directly with the states and other stakeholder groups on issues like the Clean Power Plan.”

It turns out AEP, a longtime critic of the Clean Air Act, hasn’t really changed its tune. AEP recently admitted to the Climate Investigations Center that it is participating in the legal challenges to the Clean Power Plan through its membership in UARG.

You will not find AEP’s name listed as a petitioner in the case now before the DC Circuit Court. Why do power companies hide behind special interest groups like UARG? It’s simple. Polls show large majorities of Americans support the Clean Power Plan, and companies like AEP are wary of putting their brands at risk by representing themselves in such unpopular litigation.

For its part, Dominion actually submitted a brief supporting  the EPA’s rule in April. The power company has said its payments to UARG do not go towards the Clean Power Plan lawsuit; it remains unclear just why Dominion is paying UARG.

But not all power companies are members of UARG. Both Xcel Energy and Entergy confirmed to SNL Energy that they are not members of UARG. Nevertheless, Entergy joined several other power companies that publically filed a petition in opposition to the rule.

Other power companies appear genuine in their support of the EPA’s position. National Grid Generation, Pacific Gas & Electric, and Southern California Edison are represented by Kevin Poloncarz of the firm Paul Hastings, who argued in favor of the Clean Power Plan today.

It remains unclear if other large power companies, such as Berkshire Hathaway Energy and NextEra Energy are current members of UARG; they ignored SNL’s request for confirmation.

Not just UARG

NextEra is on the record as defending the Clean Power Plan and its subsidiary, Florida Power & Light (FPL), has publicly recognized the economic benefits of transitioning to cleaner sources of electricity to reduce carbon pollution. However, it was recently reported by the Palm Beach Post that FPL customers are tap to pay hundreds of thousands of dollars per year  to the U.S. Chamber of Commerce, which is opposed to the Clean Power Plan.

The U.S. Chamber was represented in today’s D.C. Circuit Court proceedings by Peter D. Keisler of Sidley Austin. We don’t know if the U.S. Chamber was double represented as an industry trade association member of UARG.  An examination of the U.S. Chamber of Commerce Board of Directors shows multiple power fossil fuel companies holding seats on the board, including FPL. UARG member Southern Company and Peabody Energy are also on the board.

It has been reported on multiple occasions that, in addition to Peabody Energy being represented by the Chamber, the coal company is also represented by Professor Laurence Tribe. Peabody’s bankruptcy documents reveal that Tribe is set to receive $435,000 for his role in the lawsuit.

Fossil-Fuel Funded State Attorneys General

The court also heard from Republican attorneys general, including West Virginia Solicitor General Elbert Lin.

Recent investigations have uncovered that these Republican attorneys general have been cozying up to the utility, coal, and oil industries for campaign funds.

Confidential documents obtained by The Center for Media and Democracy reveal that Murray Energy and Southern Company paid for meetings with Republican attorneys general to discuss their opposition to the Clean Power Plan. These meetings occurred just weeks before the same attorneys general petitioned federal courts to block the EPA safeguard. A Murray Energy spokesperson told Bloomberg that the meeting was a useful strategy session for the litigation.

The documents further prove the alliance that Republican attorneys general have built with utility, coal, and oil companies. In 2014, The New York Times revealed that Devon Energy, Southern Company, Peabody Energy, and even F. William Brownell of Hunton & Williams/UARG, attended a meeting with other fossil fuel companies and Republican attorneys general. The conclusion of that meeting was to team up and fight the federal government, especially when it comes to EPA and Interior Department rules. Among the many documents revealed in the investigation were communications between Hunton & Williams and Southern Company with attorneys general to take actions against the EPA.

When it comes to the fight against the Clean Power Plan it might appear that there are hundreds of voices. However, it’s clear that among these voices, Southern Company, Peabody, Edison Electric Institute, and the power companies in UARG are the loudest.