harlow, david e sq

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NO MERRI

H&W wehrum

rev dr 360?

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DELAWARE

Carper, Whitehouse discover text from 2nd industry Hunton client in EPA ‘DTE Memo’

Submitted News

Updated May 6, 2019,

Sens. Tom Carper, D-Delaware, and Sheldon Whitehouse, D-Rhode Island, on May 6 urged the Environmental Protection Agency inspector general to open an ethics investigation of EPA Assistant Administrator for Air and Radiation Bill Wehrum and his deputy chief, David Harlow, after uncovering more evidence of potential conflicts of interest and questionable industry influence.

This time, the conflicts involve the Air Permitting Forum, a second industry coalition housed at Hunton Andrews Kurth that is comprised of several companies for which Wehrum and Harlow have signed ethics recusals.

Wehrum and Harlow were previously lawyers at Hunton Andrews Kurth, and since arriving at EPA, both have signed recusals to avoid potential conflicts of interest related to former clients. Members of Congress recently raised concerns about their involvement with the Utility Air Regulatory Group, a coalition of some of the country’s largest coal-fired utility companies that is represented by Hunton Andrews Kurth and has advocated for countless Clean Air Act positions that would weaken or eliminate regulations for power plant emissions — dismissing everything from the threat of climate change to the harm posed by power plant mercury emissions.

The senators uncovered more evidence of potential conflicts of interest involving yet another organization represented by Hunton Andrews Kurth, the Air Permitting Forum, or “the forum.” Like UARG, the forum comprises individual companies — and while Wehrum and his chief deputy David Harlow are recused from work associated with some of the companies that identified in 2015 as members of the forum, neither Wehrum nor Harlow recused themselves from work related to the forum.

In conducting congressional oversight, Carper and Whitehouse discovered language submitted to EPA by the forum that was subsequently used verbatim, without citation, as part of EPA’s novel argument justifying the “DTE Memo” — a memorandum issued by former EPA Administrator Scott Pruitt that disavowed EPA’s position in litigation against DTE Energy Company and undercut EPA’s enforcement of air pollution requirements under its New Source Review program.

“While it’s promising that so many utilities are abandoning UARG as EPA’s ethically questionable practices have come to light, clearly there is a systemic issue at the EPA Office of Air and Radiation. There appears to be no end to the sham associations housed at Bill Wehrum and David Harlow’s former law firm that now have a direct line to power,” said the senators. “These groups are just another avenue for industry to surreptitiously exert its influence over EPA. We reiterate our call for the EPA inspector general to thoroughly investigate whether Wehrum and Harlow violated ethics rules in their dealings with former clients.”

The Air Permitting Forum is an unincorporated “coalition” housed at Hunton Andrews Kurth LLP [Hunton] since 2016. In public comments submitted to an EPA Clean Air Act docket in 2016, the forum described itself as “a coalition of manufacturing companies focused on stationary source implementation issues under the Clean Air Act.” In its 2018 comments on the Clean Power Plan repeal, it describes its members as entities that “are subject to numerous CAA regulatory requirements… ”

[Like UARG, the forum does not have any apparent physical address or even a public website. In the headers for the forum’s public comments, the organization has listed individuals serving in various roles for the forum, such as an “executive director,” “director,” “counsel” and “manager” — but each of these individuals are lawyers employed by Hunton, and their contact information directs to a Hunton email address.

While no formal list of the forum’s members appears to be readily available, in May 2015, several individuals associated with the forum met with EPA staff about Clean Air Act rulemakings. As required, EPA staff docketed summaries of those in the meeting, including a list of attendees representing the forum. In attendance were three attorneys, all of whom would later join Hunton, employees of four companies from which Wehrum or Harlow are recused — Chevron, ExxonMobil, Georgia-Pacific and General Electric — and employees of five additional companies that are not former clients of Wehrum or Harlow — Fiat Chrysler, Ford, General Motors, Toyota, Shell and International Paper. Wehrum and Harlow do not appear recused from matters involving the forum.

As was noted in a supplemental letter to the inspector general last month — available at bit.ly/3022QIU — EPA’s plainly inaccurate reading of a 1992 Federal Register notice in the DTE memo is not one that EPA appears to have ever enunciated or recognized prior to the DTE memo. EPA reversed its long-standing New Source Review policy in part based on a unique interpretation of a decades-old EPA preamble to a Clean Air Act rule, which Wehrum and Harlow’s law firm previously deployed in litigation against the EPA. It is now clear from the senators’ oversight efforts that EPA did not merely adopt the legal posture of Wehrum and Harlow’s former clients — EPA adopted their exact words.

In April 2017, former EPA Administrator Scott Pruitt requested public “input on regulations that may be appropriate for repeal, replacement or modification.” In response to that request, the Air Permitting Forum submitted comments stating, “While historically EPA has recognized that a source must exercise judgment to exclude increases for which the project is not the ‘predominant cause,’ more recent EPA actions reflect the view that all emission increases are presumed to be caused by the change.”

Nearly identical language appears in EPA’s Dec. 7, 2017 memo titled “New Source Review Preconstruction Permitting Requirements: Enforceability and Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability,” the memo that disavowed EPA’s position in litigation against DTE Energy Company, another client of Hunton and of Harlow himself: “Because increased emissions may be caused by multiple factors, the EPA has recognized that the source must exercise judgment to exclude increases for which the project is not the ‘predominant cause.’”

This is not the first time Wehrum appears to have cut and pasted text verbatim from documents provided by his former clients. In 2004, while Wehrum was serving as chief counsel in the George W. Bush administration’s Office of Air and Radiation, EPA proposed mercury emissions rules that also used verbatim text from clients of Wehrum’s former law firm.

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SET UP ZELDIN DECAPITATION STRIKE?

EAND E THE GOOD ONE

Inside the Project 2025 plan to gut climate regs

By Jean Chemnick | 07/18/2024

The conservative outline for a second Trump presidency offers detailed steps for weakening EPA.

A paint-by-numbers plan to weaken EPA has been prepared for former President Donald Trump by his past advisers. Francis Chung/POLITICO

There’s a playbook for how a second Trump administration could pull back climate regulations.

The EPA chapter of the much-vaunted Project 2025 blueprint is stocked with ideas for how political appointees could use a second Trump term to remake agency org charts, defang enforcement and disperse Washington-based staff to regional offices. But the document — spearheaded by the conservative Heritage Foundation — also catalogs tactics for relaxing regulation in ways that might reverberate beyond the next four years.

Former President Donald Trump has distanced himself from the initiative — a sprawling guide on how executive branch authorities and agencies could serve a conservative agenda. But many of its authors served in the first Trump administration and are likely candidates for a second one.

Dave Banks, a former Trump climate adviser, said the document would serve more as a wishlist for past and future officials than a reflection of the president’s own priorities.

“I think the big question is, are the people who wrote it going to be back in?” he said. “And I think there’s a strong likelihood that a lot of the folks who worked on Project 2025 will end up in a Trump 2.0, if that happens.”

Mandy Gunasekara, the Trump EPA chief of staff who penned the project’s chapter on EPA, left open the possibility that she might return to the William Jefferson Clinton Building that serves as the agency’s headquarters.

“That’s a question for the president to ask, and an answer for me to give with my husband and family,” she said. “And we’re not there yet.”

Most of the regulatory policies included in her 28-page chapter seem cut from the same cloth as those EPA attempted in the first Trump administration. They were rescinded under President Joe Biden or overturned in court.

But some are new, like a proposal to shrink the pool of industries required to report their greenhouse gas emissions each year to EPA.

Just the fact that the policies are being explored in a widely circulated document marks a departure from 2016. The Trump EPA transition team that formed after his surprise victory eight years ago was famously long on infighting and short on planning. Political appointees were slow to arrive and key components of Trump’s deregulatory agenda were thrown out in court.

Project 2025 would revive some of those rules. For example, the EPA chapter advises the agency to “make public and take comment on all scientific studies and analyses that support regulatory decision-making.” That dovetails with a Trump-era “secret science” rule that was vacated in 2021.

Gunasekara said an incoming EPA team could avoid similar outcomes by “applying lessons learned” from the first Trump term.

“It’s very different regulating from the inside versus applying oversight from the outside,” said Gunasekara, one of several Trump EPA officials who came to EPA from congressional committees. Gunasekara was a staffer on the Senate Environment and Public Works Committee under the late Sen. James Inhofe (R-Okla.), as was Trump’s second EPA Administrator, Andrew Wheeler.

Mandy Gunasekara, former EPA chief of staff, left open the possibility of working for Trump if he wins the election. | Rogelio V. Solis/AP.

Gunasekara blamed first term policy failures in part on resistance from career staff — something Project 2025 would take pains to root out through extensive structural and workforce changes. She also acknowledged that the Trump administration sometimes cut corners — something she said wouldn’t be repeated.

“The biggest difference is we have a plan from Day One, we’re going to start implementing it, and we won’t be as susceptible to process problems that really sunk a couple of those final regulatory proposals and actions we took at the tail end of the administration,” said Gunasekara, who spoke by phone with POLITICO’s E&E News as she attended the Republican National Convention in Milwaukee.

Gunasekara said four Trump-era political appointees helped write the chapter: David Harlow, Scott Mason IV, Justin Schwab and Clint Woods. AFP Schwab declined to comment, and the others did not respond to requests for interviews.

The bulk of the chapter is devoted to reshaping EPA — “an agency that has long been amenable to being coopted by the Left for political ends” — into an entity suited to carry out a “conservative vision.”

The sections devoted to regulation ricochet between improbable suggestions and superspecific head-scratchers.

“It does have this kind of spaghetti-against-the-wall approach,” said James Goodwin, policy director at the Center for Progressive Reform. “Literally everything and the kitchen sink is in there.”

For example, the chapter proposes that EPA “update” the 2009 finding that greenhouse gases endanger public health and the environment. That’s the bedrock finding behind all Clean Air Act climate regulations, and has been targeted by some of the conservative groups behind Project 2025 — such as the Heartland Institute — since the finding’s inception.

But reversing it would be a legally tricky — and potentially more complicated after last month’s Supreme Court decision curtailing agency authority.

The Trump administration’s own EPA lawyers rejected a petition by a conservative think tank to reconsider the endangerment finding. They noted in emails obtained by E&E News that it remained consistent with scientific assessments by federal research bodies.

“If they were to revisit the endangerment finding based on the latest science, it is only more dire,” said Rachel Cleetus, climate policy director at the Union of Concerned Scientists.

“If anything, the 2009 endangerment finding is softballing the kind of impacts that are now already clear around us,” she said, referring to the effects of climate change.

But the chapter also provides a menu of wonky-sounding proposals that could narrow the scope of regulations, including for climate pollutants.

“This goes beyond many of the things that they did in the first Trump administration,” said Stan Meiburg, a former EPA acting deputy administrator. “It certainly is a very ambitious document, and incorporates ideas that go all the way back to the Reagan administration.”

Maximizing cost, minimizing benefits

Many of the regulatory proposals target EPA practices around cost-benefit analysis. There’s a reason for that: It’s generally harder for an agency to justify standards if their costs exceed their benefits.

Meiburg said the Reagan-era move to embrace cost-benefit analysis gave cost considerations the upper hand.

“Costs are specific and tend to be more quantifiable, and benefits tend to be more diffuse and less quantifiable, even though, in aggregate, they are larger,” said Meiburg.

Project 2025 proposes that EPA issue a rule to ensure “consistent and transparent consideration of costs.” Gunasekara said this would likely be a “very similar rule” to one introduced by the first Trump EPA, which was later voided by the Biden administration.

The rule promulgated under Wheeler was the first of its kind, and some experts say it could face longer odds now, when courts defer less to agencies on policy.

The EPA chapter also instructs the agency to “use appropriate discount rates, focus on the benefits of reducing the pollutant targeted by Congress, identify ‘co-benefits’ separately, and acknowledge the uncertainties involved in quantifying benefits.”

Discount rates are applied to future benefits that come at a present cost — such as avoided climate risk stemming from near-term emissions reductions.

“Basically, the higher the discount rate, the less argument there is for making investments now, because why would you spend money on this when you could make that money get a higher return doing something else?” said Meiburg.

During the Trump administration, discount rates were high, so the value of avoiding future climate change was low — somewhere between $1 and $7 per ton of carbon dioxide.

Project 2025 urges the agency to “revise guidance documents” for the so-called social cost of carbon, while another chapter proposes ending its use altogether.

Co-benefits — a rule’s health and environmental advantages that aren’t tied directly to reducing a targeted pollutant — have been persona non grata with conservatives for years. But the Trump EPA did count them in its climate rules — which showed minuscule benefits due in part to low social cost values for greenhouse gases.

Jason Schwartz, policy director at the Institute for Policy Integrity, said sidelining benefits could make rules less legally durable.

“I think that the court says have been clear in a number of cases that it would actually be arbitrary for an agency to ignore — or to really treat differently — co-benefits or indirect costs,” he said.

Gunasekara said co-benefits would still be analyzed.

“But it should be very clear, if EPA is going after one pollutant, what are the relative costs and benefit of [reducing] that one pollutant?” she said.

The goal, she said, should be “to ensure that there is increased transparency and understanding to the American public about cost-benefit justifications for the reduction of various pollutants.”

Transparency

Transparency is one of the chapter’s prevailing themes. That’s how the document frames its bid to require the data from all scientific studies underpinning regulation to be made public — effectively barring research that utilizes anonymous datasets.

But critics warn that many of its suggestions would create information gaps that would make it harder for EPA to maintain inventories of the greenhouse gas emissions — and ultimately to regulate them.

“It’s basically like two blades of a scissors,” said Goodwin of the Center for Progressive Reform. “These cost-benefit analysis rules are demanding more information. But the other blade is making it harder for EPA to get that information in the first place. And you can see how they come together.”

EPA currently requires 41 high-emitting sectors to report their greenhouse gas emission each year. About 8,000 facilities within those sectors — chosen because they exceed certain emissions thresholds — is the basis of EPA’s annual greenhouse gas inventory. The data has numerous purposes, including as an input for EPA regulatory decisions.

But Project 2025 would limit reporting to the few sectors currently being regulated for greenhouse gas emissions — such as power plants and oil and gas production. It would exempt major emitters in other sectors, such as municipal landfills, iron, steel and cement manufacturing, and carbon capture and storage.

The chapter said this would eliminate costly requirements borne by small businesses.

“This is either a pointless burden or a sword-of-Damocles threat of future regulation, neither of which is appropriate,” the document states.

But suspending annual greenhouse gas reporting for the four years of a second Trump term could delay regulation of new sectors during a subsequent administration by depriving it of needed data. It would reduce the scope of information available to scientific agencies that track emissions.

It could also make it impossible for the U.S. to fulfill its obligations as a party to the United Nations Framework Convention on Climate Change (UNFCCC), which requires an annual accounting of emissions and carbon sinks. The Senate formally ratified the treaty in 1992 and the U.S. remained a party to it under Trump, even as the administration moved to withdraw from the Paris Agreement.

Gunasekara said she’d urge “the next conservative administration” to withdraw from the UNFCCC as well as Paris, which she said required the U.S. to make painful cuts while giving other countries “a free pass.”

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https://www.energyandpolicy.org/uwag-and-uswag-the-secretive-utility-groups-that-target-epa-rules/

may 2019

matt kasper

The Utility Air Regulatory Group announced on Friday that its remaining members had decided to disband the embattled project after more than 40 years. UARG had been an unincorporated group of utilities represented by lawyers at Hunton Andrews Kurth that fought against clean air standards.

But while the utilities may have dissolved UARG, the same corporations still have other “U Groups” that exist to attack EPA’s enforcement of the nation’s environmental laws. Just as utilities used UARG to target the Clean Air Act, they have the Utility Solid Waste Activities Group (USWAG) and the Utility Water Act Group (UWAG) to attack EPA’s enforcement of the Clean Water Act and other laws that utilities have long perceived as thorns in their sides.

USWAG is represented by lawyers at Venable LLP. Attorneys fromHuntonAndrews Kurth, the same firm that housed UARG, represent the members of UWAG. Both U-groups are set up similarly to UARG: unincorporated, voluntary, ad-hoc coalitions that do not disclose individual utility members. USWAG has been a party in 88 lawsuits since the early 1990s while UWAG has been a party in 99 cases since 2000, according to the Public Access to Court Electronic Records.

Utility Solid Waste Activities Group, Utility Water Act Group targeting Obama-era rules; also subsidized by utility customers

UARG’s utility members faced intense scrutiny in recent months since Politico obtained and published confidential documents that outlined goals for a meeting of UARG’s policy committee to attack Obama-era clean air and public health rules.

The spotlight brightened when leading Democrats on the House Energy and Commerce Committee sent letters to several member-utility CEOs asking for information about EPA air official Bill Wehrum’s relationship with UARG and its member companies. Wehrum was an attorney at Hunton and represented UARG. Congress is investigating how he and another former Hunton lawyer now at the EPA, David Harlow, have helped reverse the agency’s position in a major enforcement action to favor a client of their former law firm – DTE Energy.

The Congressional probe into UARG requested that the utilities state whether they had forced their customers to fund their annual contributions to the collective legal effort. Journalists and consumer advocates also pressed individual utilities to answer the question posed from the members of Congress.Several utilities, including American Electric Power, Arizona Public Service, and Tucson Electric Power, admitted that they force their customers to fund UARG expenses and therefore the legal challenges to the Clean Air Act. Others, such as Ameren, DTE Energy, Dominion, and Duke Energy did not provide details about the source of UARG funding.

Rate case filings reveal that many utilities similarly force their customers to fund their attacks on EPA’s ability to enforce the Clean Water Act via USWAG and UWAG. In 2017, the Minnesota Office of the Attorney General argued that customers of Minnesota Power shouldn’t foot the utility’s membership bill for both USWAG and UWAG. Missouri Public Service Commission Staff explained that Ameren shouldn’t bill its customers $96,010 for UWAG annual dues and $47,163 for USWAG. And in November of 2018, the Kentucky Office of the Attorney General attempted to prevent Louisville Gas & Electric and Kentucky Utilities customers from paying the $68,175 for USWAG annual dues and $109,501 for UWAG.

In a2016 Arizona Public Service rate case, the Residential Utility Consumer Office (RUCO) described the U-groups as “purely voluntary, many of which are political in nature, and may not be necessary for the provision of utility services.”

Earlier this month, UWAG attorneys were in court to join the defense of the Trump administration’s two-year delay of Obama’s Effluent Limitations Guidelines (ELG) rule. Two years ago, Hunton attorneys representing UWAG petitioned the Trump EPA to reconsider the ELG rule. Under President Obama, the EPA finalized an update to the rule as it hadn’t been updated since the early 1980s. The rule exists to limit the wastewater that power plants can discharge in waterways. That wastewater includes arsenic, lead, mercury, selenium, chromium, and cadmium.

USWAG attorneys, meanwhile, have targeted a coal ash rule,which the Obama Administration proposed in 2010 following the largest toxic waste spill in U.S. history at a Tennessee Valley Authority power plant in Kingston. One billion gallons of coal ash sludge destroyed 300 acres and dozens of homes. The rule established a set of requirements for the safe disposal of coal ash from coal-fired power plants. Similar to the ELG rule, USWAG was quick to petition the Trump EPA to reconsider parts of the coal ash rule. In September 2017, then-EPA administrator Scott Pruitt announced that it will review parts of the rule that USWAG addressed in their petition.

Ten years after the Kingston spill that triggered the rule which USWAG has fought to undermine, 400 workers who cleaned up the spill have been sickened. Another 40 died, according to a tally maintained by the Knoxville News Sentinel.

• Posted in: Utilities, Utility Air Regulatory Group
• Tagged in: UARG, Utility Air Regulatory Group, Utility Solid Waste Activities Group, Utility Water Act Group, UWAG

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https://www.motherjones.com/environment/2019/06/huffpost-just-published-a-bombshell-story-about-the-epa/

A top Environmental Protection Agency official gave a presentation last year at a gathering of some of the most zealous deniers of climate science, highlighting the influence a small, fringe movement hawking crank theories now wields in Washington.

Emails HuffPost reviewed reveal Bill Wehrum, the EPA’s assistant administrator for air and radiation, gave a presentation in early February 2018 at an event organized by the Cooler Heads Coalition, an umbrella group of tax-exempt charities and right-wing nonprofits that includes some of the most ardent proponents of climate change denial.

Three other EPA officials―associate administrator Tate Bennett, senior counsel David Harlow and then-spokeswoman Liz Bowman―attended the confab with Wehrum, the emails show.

In an email dated Feb. 6, 2018, Myron Ebell, who has led the Cooler Heads Coalition for more than two decades, offered gratitude for the EPA officials’ attendance at the previous day’s event, and invited the group to the next meeting a month later.

“Thanks Bill, David, Liz, and Tate, for coming to Cooler Heads and for your presentation and taking questions, Bill. It was most useful,” Ebell, who led the Trump administration’s EPA transition team, wrote. “We look forward to seeing any or all of you at future meetings.”

The EPA declined to comment on the nature of Wehrum’s presentation and whether any officials attended other events with the Cooler Heads Coalition.

“EPA takes time to meet with stakeholders on a variety of regulatory issues, this is no different,” said EPA spokesman Michael Abboud.

...

https://www.spglobal.com/marketintelligence/en/news-insights/blog/us-utility-commissioners-a-key-factor-in-assessing-regulatory-risk

omg

electric utility trade group with ties to top U.S. Environmental Protection Agency officials will dissolve amid a congressional probe into whether the group inappropriately influenced Trump administration air and climate policy.

The Utility Air Regulatory Group — one of the foremost legal challengers to Clean Air Act regulations over the last four decades — said in a May 10 statement that its membership will disband after a "wind down period," citing "substantial changes in the electricity sector."

The announcement comes after the House Energy and Commerce Committee in April launched an investigation focused on whether EPA Office of Air and Radiation Administrator Bill Wehrum and Senior Counsel David Harlow, who formerly represented UARG as attorneys, violated federal ethics rules by working to reverse the EPA's position in ongoing Clean Air Act-related litigation.

Run out of the law firm of HuntonAndrews and Kurth, UARG came under increased scrutiny when the news outlet Politico published documents in February showing that a coalition of coal-heavy utilities agreed to pay Wehrum's old firm $8.2 million in 2017.

That same month, Rep. FrankPallone, D-N.J., and Sen. Sheldon Whitehouse, D-R.I., asked the EPA's inspector general to investigate whether Wehrum or Harlow were improperly involved in drafting a December 2017 EPA guidance memo revising the agency's interpretation of a Clean Air Act permitting program that can trigger the need to install costly pollution controls.

As part of its investigation, the House committee requested copies of all communications between the law firm and current EPA officials, as well as past communications Wehrum and Harlow had with the EPA during their tenure at Hunton. The requests also cited a 2016 report by S&P Global Market Intelligence detailing how power companies have wielded influence anonymously through the group for years.

In addition, the committee asked eight different utilities — Ameren Corp., American Electric Power Co. Inc., First Energy, Southern Co., the Tennessee Valley Authority, the Tri-State Generation and Transmission Association Inc. and Vistra Energy Corp. — to disclose whether they used ratepayer funds to pay UARG dues. Some of those utilities have acknowledged doing so, while companies that quit the group prior to the Politico report and congressional investigation have stressed the group is no longer needed due to a marketwide shift away from coal-fired generation.

A Hunton spokesman said in a May 10 email the firm "is proud" to have represented UARG members in the federal rulemaking process over the past 40 years. "Hunton will continue to assist its clients in this valuable process," the firm said.

House Democrats said they were glad to see UARG break up, but they warned the committee's oversight will continue. "Our committee's investigation is not over," said Pallone, Rep. Paul Tonko, D-N.Y., and Rep. Diana DeGette, D-Colo., in a statement. "Important questions remain about whether EPA officials William Wehrum and David Harlow continue to advance their former coal industry clients' agenda at EPA, and we intend to see those questions through."

The EPA did not immediately respond to request for comment May 10.

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https://projects.propublica.org**/trump-town**/staffers/david-harlow

oct2017

Former Positions Outside Government

• Hunton & Williams, LLP Counsel

Former Compensation Sources

• Agrium Inc. & NU-West Industries, Inc.Provide legal advice and services.
• Chevron Corporation Provide legal advice and services.
• George R. Jarkesy, Jr. Provide legal advice and services.
• Hunton & Williams, LLP Provide legal advice and other services to clients.
• LG&E and KU Energy, LLC Provide legal advice and services.
• National Stone, Sand & Gravel AssociationProvide legal advice and services.
• Sunflower Electric Power Corp. Provide legal services and services.
• Utility Air Regulatory Group Provide legal advice and services.

Employment Assets

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