Scalia, Shmalia: Corporate Front Groups Helped Win Supreme Court Stay of Obama Clean Power Plan

Cross-Posted from DeSmogBlog

On February 9, just days before the death of Supreme Court Justice Antonin Scalia, the U.S. Supreme Court granted a stay freezing President Barack Obama's Clean Power Plan (CPP). 

While many articles have speculated on what Scalia's death means as it relates to the future of the CPP — and the Court's voting balance tipping from a 5-4 conservative majority to a potential 5-4 liberal majority — there's been less attention paid to the corporate-funded network that launched a slew of lawsuits against the government to add legal muscle to the state Attorneys General attacks on the CPP.

A DeSmog investigation of the dozens of legal challenges filed just before the holidays at the federal Appeals Court level reveals that big corporate interests sit at the center of a coordinated attack against the Obama administration's regulatory attempt to curb emissions for coal-fired power plants.

These plaintiffs include groups with ties to the Koch Brothers, Peabody Energy and other coal companies, trade associations, and front groups from the utility industry and major corporate law firms.

The easy ones to identify are the companies and industry trade associations. These include the National Mining Association, American Coalition for Clean Coal Electricity (ACCCE), Peabody Energy Corporation, Murray Energy Corporation, Norfolk Southern, the Association of American Railroads and others. 

The tougher nut to crack is the identities behind the front groups. We dug into them and put faces to front group names so you don't have to.

Energy-Intensive Manufacturers’ Working Group on Greenhouse Gas Regulation

Sometimes a name says it all, which is the case with this group that filed a petition for review with the U.S. Court of Appeals for the District of Columbia on December 22. (Most of the petitions were filed at the last minute on December 22 as the challenge period ended, which happened to conveniently line up with the holiday break, so that may explain some of the lack of attention to this story until now.)

The Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation is represented by John J. McMackin, who serves as a principal for the Williams & Jensen law firm. McMackin also lobbies for coal-carrying freight rail company Norfolk Southern.

The Working Group's members include Alcoa, Corning, Dow, Holcim U.S., NewPage Corporation, Nucor, Owens Corning, Owens-Illinois, PPG, Rio Tinto, and U.S. Steel, according to congressional testimony given by McMackin in 2009.

Florida Electric Power Coordinating Group

The Florida Electric Power Coordinating Group is counseled by James S. Alves, an attorney who also represents coal utility giant Gulf Power Company. Its dues-paying members include coal power plant giant Duke Energy. The Coordinating Group, which filed a Petition for Review with the D.C. Court of Appeals in October 2015, is also lawyered by two attorneys employed by the Florida firm Hopping Green & Sams (HGS).

“HGS represents many electric utilities and other regulated interests through the legislative process, state and federal agency rulemaking processes, project permitting and, when necessary, litigation,” the firm says of itself on its climate change litigation website portal.

American Public Power Association, Utility Air Regulatory Group

APPA is best described as a ratepayer-subsidized utility lobbying collective for the milieu of local utility industry companies dotting the U.S. It brought a Petition for Review alongside the Utility Air Regulatory Group (UARG), which is a whos-who of coal-fired utility companies, in October 2015 to the D.C. Appeals Court.

Both groups maintain the legal counsel of Hunton & Williams' attorneys Peter Glaser and Allison Wood. As previously reported here on DeSmog, Wood has made a career out of battling against clean air regulations.

Matt Kasper, a fellow with the Energy & Policy Institute, created a LittleSis map and wrote an accompanying article in August 2015 about the lawyers fighting against CPP's implementation. Wood and Glaser made the list, as did UARG.

Koch-Tied Groups

There's King Coal and then there's King Koch. As with many stories involving big corporate interests fighting against environmental regulations, the Kochtopus has spread its tentacles and front groups into the fight against the CPP.

Energy and Environment Legal Institute

Enter the Energy and Environment Legal Institute (EELI), an anti-clean energy front group formerly known as the American Tradition Institute, which filed a Petition for Review in October 2015 with the D.C. Appeals Court. EELI maintains close ties to Koch-funded George Mason University School of Law.

According to a January 2015 piece published by Vice News, "The Atlas Economic Research Foundation, Lair Foundation, and Doug Lair are all listed as donors" on ATI's 2010 IRS 990 tax form. "The Atlas Economic Research Foundation has been funded in the past partly by Exxon, while Doug Lair is a Montana businessman who sold his petroleum company to one of the Koch brothers back in 1989."

Lee Fang of The Intercept further revealed, by examining bankruptcy filings of coal mining giant Alpha Natural Resources, that EELI Senior Legal Fellow Chris Horner received funding from the company.

Stink Tanks

Members of the Koch-tied State Policy Network (SPN), the American Legislative Exchange Council (ALEC)-created apparatus called "stink tanks" by the Center for Media and Democracy, also entered into the CPP legal fray by filing a Petition for Review with the D.C. Appeals Court in December. 

These SPN members include the Buckeye Institute for Public Policy Solutions, the Independence Institute, the Rio Grande Foundation, and the Sutherland Institute. 

CPP's Future? 

For now the CPP's fate sits largely in the hands of the D.C. Appeals Court. A date to watch for is June 2, but it appears the Court will not publish a decision until at least this autumn.

"As a practical matter, this stay means that the EPA may not continue to take any actions to implement or enforce the CPP pending the resolution of the state and industry challenge to the rule. That challenge is currently before the U.S. Court of Appeals for the D.C. Circuit, which will hear oral arguments on June 2," The Washington Post explained. "In all likelihood, this means a D.C. Circuit decision will not be issued until early fall, at the earliest."

In the meantime, keep your eyes on amicus briefs filings, especially those penned by groups with ambiguous-sounding names. Generally, the real story can be found, as investigative journalist Izzy Stone once said, "in the bowels of government" and amicus briefs filed to a federal court certainly fit that bill.