WASHINGTON, D.C. – Today, U.S. Senators Tom Carper (D-Del.), top Democrat on the Senate Environment and Public Works (EPW) Committee, and Sheldon Whitehouse (D-R.I.), top Democrat on the EPW Subcommittee on Clean Air and Nuclear Safety, again urged the Environmental Protection Agency (EPA) Inspector General (IG) 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.
Both 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 (UARG), 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 (“the Forum”). Like UARG, the Forum consists of 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 itself.
In conducting congressional oversight, Senators 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 Ever-Elusive “Air Permitting Forum”
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, General Electric) and employees of five additional companies that are not former clients of Wehrum or Harlow (Fiat Chrysler, Ford, General Motors, Toyota, Shell, International Paper). Significantly, Wehrum and Harlow do not appear recused from matters involving the Forum itself.
Concerns of Senators Carper and Whitehouse About Language submitted by the Air Permitting Forum found in EPA’s “DTE Memo”
As was noted in a supplemental letter to the Inspector General in March, 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.” (p. 12)
Nearly identical language appears in EPA’s December 7, 2017 memo entitled “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 Mr. Harlow’s 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.” (p. 7)
This is not the first time Bill 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 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.