Following a monthslong investigation, Sens. Tom Carper, D-Delaware, and Sheldon Whitehouse, D-Rhode Island, unveiled July 22 a report titled “Redefining Air: Industry’s Pipeline to Power at EPA’s Office of Air and Radiation.”
The report details efforts by former Environmental Protection Agency Assistant Administrator Bill Wehrum and his senior counsel, David Harlow, to achieve policy outcomes to the benefit of several industry organizations represented by Hunton Andrews Kurth LLP, the law firm at which Wehrum and Harlow worked prior to their tenures at EPA. The report reveals new evidence of ethical lapses on the part of Wehrum.
The report examines how Hunton creates industry groups like the now-disbanded Utility Air Regulatory Group, and court filings, public comments and regulatory petitions. The report documents the astounding success Hunton-created groups have had with the EPA Office of Air and Radiation during Wehrum’s tenure.
Although Wehrum left EPA in June under the scrutiny of intensifying congressional oversight, Harlow remains at the agency — as do the Hunton-driven rollbacks that Wehrum and Harlow undertook. In addition to Wehrum’s and Harlow’s success in achieving higher-profile rollbacks of air pollution protections sought out by their former Hunton clients, “[t]his investigation also identified numerous technical, often arcane, policy shifts sought by Hunton-represented industry groups that carry major air pollution implications. These policy shifts, and agency actions to implement them, illustrate the close relationship between Hunton and former Hunton employees who now direct this country’s air pollution policy at EPA.”
The report also raises ethics questions about the relationship between Wehrum, Harlow and member companies of various Hunton-represented industry groups, “includ[ing] whether Wehrum and Harlow have been forthright about their past legal work on behalf of these entities, and whether they have adhered to the ethical requirements of public service. This investigation identifies circumstances in which Wehrum and Harlow may have involved themselves in litigation and other matters to benefit Hunton and former clients; failed to report the existence of former clients from which they should have been recused; and impermissibly met with former clients, including former clients that were not properly disclosed to agency ethics officials.”
The full list of Hunton organizations examined in the report includes:
— The Utility Air Regulatory Group, itself a former client of both Wehrum and Harlow, which until its recent demise was comprised of multiple trade organizations and coal-fired power plant operators, including at least three more former Wehrum clients — Dominion, Duke Energy and Salt River Project — and at least two more former Harlow clients, DTE Energy and LG&E & KU Energy;
— The Air Permitting Forum, which nominally advocates on Clean Air Act permitting matters, and whose members include one former client shared by Wehrum and Harlow — Chevron — as well as at least three other former Wehrum clients — ExxonMobil, Georgia-Pacific and General Electric — and six additional companies that are not former Wehrum or Harlow clients — Fiat Chrysler, Ford, General Motors, Toyota, Shell, and International Paper;
— The Auto Industry Forum, a “sub-coalition” of the Air Permitting Forum that represents several automakers on issues related to stationary source emissions, and whose members include at least Fiat Chrysler, Ford, General Motors and Toyota;
— The NAAQS Implementation Coalition, which advocates for policy changes that would increase opportunities for political interference with, or otherwise weaken, air quality standards, and whose members include UARG, and thus UARG’s members, and at least three other former Wehrum clients, the American Forest & Paper Association, the American Petroleum Institute and the Brick Industry Association, and;
— The CCS Alliance, which advocates on issues related to carbon capture and storage matters, and whose membership includes at least two former UARG members, the National Mining Association and the National Rural Electric Cooperative Association, as well as Berkshire Hathaway Energy, NRG Energy, PacifiCorp and Zurich North America.
The report demonstrates that multiple Hunton-created industry groups have sought sweeping regulatory changes that would increase air pollution, exacerbate climate change and reduce the amount of pollution information available to the public. Among the dozens of changes, Hunton and its industry organizations have asked EPA to weaken greenhouse gas requirements for new and existing coal-fired power plants; to allow the largest polluters to release more toxic air pollution; and to allow upwind power plants to pollute more downwind communities. These Hunton-created industry groups have also made technical and novel arguments that EPA has adopted or is in the process of adopting, such as how to account for certain types of benefits when conducting economic analyses for mercury regulations; how to sideline independent scientists on scientific advisory boards; or even how to redefine what counts as “ambient air” protected by the Clean Air Act in the first place.
The report also reveals apparent violations of ethical rules. Some of these violations have been previously described, while others are being revealed for the first time. For example, in addition to the apparent violations by Wehrum and Harlow of the Trump Ethics Pledge and the Ethics in Government Act regulations by their participation in the development of the DTE Memo which benefited both DTE and UARG, Carper and Whitehouse also identified former clients that Wehrum failed to disclose to EPA ethics officials or recuse himself from meeting with as required by his ethics agreement. Wehrum, and potentially Harlow, also artificially — and perhaps improperly — failed to include individual members of UARG as “former clients” from which he was recused, even though those individual companies financed Hunton’s legal work, and even though Hunton has successfully argued in court that its communications with those companies are covered by the attorney-client privilege.
This is not the first time that Carper and Whitehouse have raised concerns about Wehrum and Harlow’s engagement with their former clients and Hunton-represented industry groups while at EPA.
In February, Carper and Whitehouse joined with House Energy and Commerce Chairman Frank Pallone Jr., D-New Jersey, in writing a letter to the EPA acting inspector general, asking him to investigate Wehrum’s and Harlow’s roles in developing a memorandum, the “DTE Memo,” that benefited both their former employer, Hunton, and its client, DTE Energy, despite ethical rules prohibiting their involvement.
In March 2019, Carper and Whitehouse and Chairman Pallone informed the EPA Acting Inspector General in a supplemental letter that, in the DTE Memo, EPA adopted without discussion a novel interpretation of NSR regulations that had previously been enunciated only by Hunton’s lawyers in the underlying DTE litigation.
In May, the offices of Carper and Whitehouse identified language in the DTE Memo copied verbatim from a document that Hunton had submitted to EPA on behalf of the Air Permitting Forum, a Hunton-represented industry group with no existence outside the law firm.
In light of the report’s findings, Carper and Whitehouse also sent a letter urging the acting inspector general to review the report, saying, “More broadly, we urge you in the strongest possible terms not to abandon or decline to pursue work on this matter in the wake of Mr. Wehrum’s departure from the agency. These are institutional concerns that are capable of repetition in the future, yet will evade your review should you abdicate your responsibility to conduct and complete an evidence-based investigation. Moreover, the ethical failings and absence of accountability that pervade the Trump administration should not be aided by an implicit message that one can avoid investigation if one simply resigns before the investigation is complete”
The full letter is available at bit.ly/2Y3qHWA.