The Polluters’ Lawyers

Legislation to strengthen the Clean Water Act, the Clean Air Act and other environmental concerns in the 1970s did not only create new government agencies, it also spawned entire fields of law. While some lawyers work for nonprofits that use lawsuits to challenge pollution and others work as government regulators, the “best of the best” work for large corporations wielding both litigation and lobbying on behalf of polluting industries, according to Chambers and Partners, a group that publishes directories indexing and ranking law firms globally.

The three top U.S. firms in environmental law – Sidley Austin, Latham & Watkins and Hunton & Williams – represent companies notorious for violating the Clean Water and Clean Air Acts and lobbying to weaken laws meant to protect the environment and public health.

Sidley Austin is considered a top tier firm on environmental issues. Chambers states, “the lawyers are renowned for their expertise in air, water and waste pollution litigation,” and list clients such as BP, General Electric and Duke Energy. But perhaps their most significant client when it comes to international pollution is the XL-Pipeline project in Canada. They represent Canadian energy companies attempting to develop a controversial cross-border oil and gas pipeline.

“We represent Alliance Pipeline, Enbridge, TransCanada and other Canadian energy businesses which have sponsored major cross-border oil and gas pipeline projects. We have advised a number of these projects on the permitting and environmental review process under both US federal and state laws. We also counsel clients involved in proceedings initiated by the Office of Enforcement at the Federal Energy Regulatory Commission,” states Sidley Austin on their website.

TransCanada plans to build a 2000 mile, $7 billion, pipeline from the tar sands oil fields in Alberta to points in Oklahoma and Texas where the crude will be refined. Once operational, the pipeline would move up to 830,000 barrels a day through the system. The line will be built over and across the Ogallala Aquifer (a vast reservoir that stretches across eight states from South Dakota to New Mexico and provides drinking water to millions), the Nebraska Sandhills and the Platte River.

In Canada, the Alberta tar sands project  has destroyed large swaths of the ancient Boreal Forest to mine for bitumen, the dirtiest and most expensive fuel to harvest. Bitumen is a heavy hydrocarbon that is buried in sand and clay and it takes enormous amounts of water, electricity, diesel and natural gas to extract it. According to experts, “it takes four tonnes of earth to produce two tonnes of sand in order to create one barrel of bitumen.”

The loss of the Boreal Forest coupled with the vast amount of energy used to extract the bitumen severely increases the amount of CO2 released. Experts are predicting a meteoric rise in Canada’s CO2 emissions that will further impact climate change. Another more localized danger exists for communities near the mining. Large reservoirs have been dug out to hold toxic waste and during the mining and refining processes chemicals are released into the air and also settled in nearby waterways. Bitumen contains cancer causing polycyclic aromatic hydrocarbons and communities downstream from the tar sands are finding cancer rates higher than normal. “A cluster of rare cancers and autoimmune diseases in an aboriginal community downstream from the project remain unexplained,” according to Greenpeace. Fish in nearby Lake Athabasca have deformities.

It is incumbent upon the State Department to determine whether the XL pipeline project is in the “national interest” and approve it, and so far they have been giving developers a green light. State’s final decision is expected by the end of 2011. But the absence of a final verdict has not stopped TransCanada from invoking 56 eminent domain actions against landowners in Texas and South Dakota who are refusing to sell to allow the pipeline to cross their property.

In August, the State Department released its final environmental impact statement  suggesting the project move ahead, inflaming the fears of opponents to the pipeline.

The Environmental Protection Agency has told the State Department that they are not adequately weighing the risk of a leak or a spill in such sensitive ecosystems and waterways that provide drinking water to millions as well as 30 percent of the groundwater used to irrigate crops.

TransCanada has already dealt with leaks on XL Pipeline I. In 2010, TransCanada’s Keystone pipeline documented its second leak, according to the National Wildlife Federation. The leak sprayed 20 gallons of crude oil in three second time in South Dakota. But that doesn’t compare to the spill in North Dakota in 2011 that spewed 21,000 gallons of oil. Usually, pipelines are nearly 50 years old before they are considered unstable but these pipes are new and yet they are leaking which environmental activists say is due to the corrosive and abrasive nature of the bitumen travelling through the pipes. But TransCanada counters that they are using “high strength steel” developed for high-pressure pipelines and they add that they are coated with a corrosion resistant product.

Sidley Austin also represents Enbridge, the Canadian company responsible for dumping 840,000 gallons of raw tar sands crude oil into the Kalamazoo River in Michigan. Enbridge operates a nearly 60-year old pipeline directly under Lake Michigan and Lake Huron at the Straits of Mackinac connecting the Alberta Tar Sands with refineries in Michigan and the Midwest. The oil infected portions of the Kalamazoo River are still closed to swimming and fishing and some residents are suing Enbridge because they say they were sickened by the spill. The oil was contained before it devastated Lake Michigan and spread through the rest of the Great Lakes that supply drinking water to more than 40 million people and irrigate crops in eight states. Enbridge had been cited for safety violations on that same pipeline before 2010 spill.

Latham & Watkins rose to prominence in environmental circles during the George W. Bush era. The EPA copied a memo – at times word-for-word – into proposed regulations in which Latham & Watkins attorneys outlined an anemic cap-and-trade system to address mercury pollution from coal and oil fired plants. The firm’s recommendations were written to behoove industry clients.

“A side-by-side comparison of one of the three proposed rules and the memorandums prepared by Latham & Watkins — one of Washington’s premier corporate environmental law firms — shows that at least a dozen paragraphs were lifted, sometimes verbatim, from the industry suggestions,” wrote Eric Pianin of The Washington Post.

Representatives Henry Waxman and Tom Allen responded to the news reports with a scathing letter to then-EPA Administrator Michael Leavitt begging for answers.

“Specifically, it appears that EPA has proposed a regulatory approach to mercury air pollution that in part is copied word-for-word from memos prepared by the law firm Latham & Watkins, which represent some of the largest polluters in the country. This is particularly troubling because two key EPA officials who worked on the proposal were previously employed by Latham & Watkins,” the congressmen wrote in a letter signed February 2004.

Jeff Holmstead, then associate administrator of the EPA’s Office of Air and Radiation, was responsible for drafting the mercury rule and using language from the Latham & Watkins memo. Before going to work for the Bush administration, Holmstead worked for Latham & Watkins and represented the Alliance for Constructive Air Policy – a utility front group that focused on state smog standards – and he also became an adjunct scholar with the Citizens for the Environment – a group birthed by Koch Industries’ Citizens for a Sound Economy. When Barak Obama became President, Holmstead went to Bracewell & Guiliani to lobby for Southern Company, Duke Energy, Arch coal and others. Power plants owned by Southern Company are among the heftiest mercury polluters nationwide, according to a 2011 report by Environmental Integrity.

The Congressional letter also mentions Bill Wehrum, who was Holmstead’s chief counsel at the EPA and also worked at Latham & Watkins before going to the agency. In a 2003 Washington Post article, a Senior White House advisor stated, “if you had to pick one person, it was Jeff Holmstead in EPA’s air office who played the key role in development of the cap-and-trade approach to regulation of mercury emissions.”

Latham & Watkin’s suggested weak cap-and-trade rule that Holmstead tried to implement created a giant loophole for power companies relieving them from having to comply with clean air standards for mercury emissions. It was argued by opponents that such a method would create hot-spots for mercury which causes neurological problems and birth defects in humans. Mercury not only pollutes the air but lands in water and quickly effects lakes, rivers and streams. Less than a teaspoon of mercury can contaminate a 25-acre lake making the fish inedible. In 2009, U.S. power plants reported that they released over 72,000 pounds of mercury into the air.

“We are deeply concerned that EPA’s rulemaking process has been improperly influenced by industry at the potential cost of the health of future generations of children. Congress and the American people need to know how industry lobbyists came to write a significant portion of an EPA formal rulemaking proposal,” Congressmen Waxman and Allen wrote.

An IG investigation revealed that political appointees at the EPA influenced the science being used to determine the mercury outputs. In 2009, the Supreme Court invalidated the Clean Air Mercury Rule and its cap-and-trade approach when it refused to consider an appeal filed by a coalition of utilities seeking a reversal of a lower court’s decision.

Hunton & Williams is recognized for their work on environmental permitting litigation and regulatory proceedings under the Clean Air and Clean Water Acts. They also have a lengthy client list that includes: ConocoPhillips (partner to TransCanada on the XL Pipeline), Smithfield Foods, the Tennessee Valley Authority, Georgia Power, the West Virginia Coal Association, Duke Energy and the cap-and-trade weary Americans for Affordable Climate Policy. Some of the trade associations that they represent include those supporting some of this nation’s biggest polluters, such as the National Miners Association, the National Cattlemen’s Beef Association, Gas Processors Association, FirstEnergy, Koch Industries, the National Pork Producers, Edison Electric Institute, the Foundation for Environmental and Economic Progress and the American Forest and Paper Association. These are all industries that need to get permits from the Environmental Protection Agency because they produce polluted byproducts that often end up endangering public waterways.

For decades, Hunton & Williams has won court battles that have had a negative effect on the ability of the Clean Water Act (CWA) to protect water and public health. With each case, little by little, they whittled away at the CWA making it less effective. They represented the National Mining Association against the US Army Corps of Engineers (Corps) in a case that invalidated the Tulloch Rule and rolled back protections of wetlands. Wetlands are the kidneys of our water system. They provide a natural filter for pollution, enhance water quality, a natural flood control and habitat for wildlife, fowl and fish. The demise of the Tulloch rule has left over 20,000 wetland acres and 150 stream miles destroyed. When Europeans arrived in North America there were more than 220 million acres of wetlands in the lower 48, but by the turn of this century, wetlands were reduced to just around 100 million acres mainly due to human development, according to data compiled through the FWS National Wetlands Inventory for the Congressional Research Service.

In another case, Hunton & Williams argued for the National Association of Home Builders when they sued the U.S. Army Corps to broaden the scope of nationwide dredge and fill permits for commercial and residential developers as well as for miners. The CWA requires industry to get a permit for discharging dredged or fill material into waterways. The Corps identified a group of activities that have a relatively low impact on the environment and organized them under a general or nationwide permit. This blanket authorization behooved industry because it did not require the regular level of review or allow for public input. As a result industry took advantage and “tens of thousands of wetland destroying projects,” that were authorized, according to Earth Justice. In response, the Corps revised the permits restricting actions and setting up safeguards limiting the size of an affected area. Immediately, on behalf of industry, the Bush administration weakened the Corps restrictions, and then NAHB hired Hunton & Williams to sue to completely restore the broad nationwide permits.

When the San Francisco Baykeeper sued Cargill Salt Division because the company was dumping waste material into the Don Edward’s San Francisco Bay National Wildlife Refuge and won, Cargill appealed with the help of Hunton & Williams. The firm’s work resulted in a decision that found that only wetlands adjacent to navigable waters and not other water bodies are covered by the Clean Water Act.

Hunton & Williams has had equal success lobbying Congress, the White House and federal agencies. Last year, their lobbying arm brought in more than $2.8 million, according to the Center for Responsive Politics. Their influence was significant during the Bush administration.

In 2006, a split Supreme Court decision in Rapanos et al vs. the United States changed the type of waters protected by the CWA by limiting them to “navigable waters” (only 2 percent of this nation’s waters are considered navigable, according to Clean Water Action) and causing so much jurisdictional confusion that the authority of the EPA and Corps was undermined. Former Michigan Rep. Bart Stupak stated that the confusion caused by these court decisions resulted in the questioning of 16,730 pollution regulating permits. Guidance on how to interpret the law was needed. Both the EPA and the Corps worked together to provide guidelines that would restrict corporations ability to pollute various waterways but, right before issuing them, they were stopped. According to news reports, the guidance was leaked and it aroused the ire of industry. It appears a Hunton & Williams attorney, Virginia Albrecht, lobbied the White House to halt the guidance and have the Council on Environmental Quality rewrite it to better benefit the firm’s clients.

“Virginia S. Albrecht, a prominent Washington lawyer representing property developers, wrote to the White House in September to express concerns about the breadth of the proposed rules. Among her chief objections was that the rules as written would allow the government to regulate development over a wide region even if the impact on a stream or swamp of a proposed project was highly localized. Ms. Albrecht also said projects should be reviewed case by case to see if they met the tests set out by the Rapanos decision,” according to The New York Times.

The American Rivers Association has stated that this guidance creates “enormous and inappropriate hurdles to protecting the nation’s waters.” The organization also says that the decline in enforcement of the CWA can be linked directly to the White House policy guidance. It is estimated that up to 60 percent of this nation’s rivers, streams and nearly a quarter of our wetlands are no longer protected by the Clean Water Act as it is now interpreted.

Since 2007, the Waters Advocacy Coalition, referred to as an industry front by some, whose membership roll reads virtually the same as Hunton & Williams client list and whose sole purpose is to limit the waters protected under the CWA, paid the firm $320,000 to fight any legislation or rule that would restore protections to the original waters defended under the Clean Water Act.

On behalf of WAC, Virginia Albrecht of Hunton & Williams testified before the Transportation and Infrastructure Committee in 2008 to fight an effort led by then-Rep. James Oberstar called the Clean Water Restoration Act (CWRA). With this act, Rep. Oberstar said he and his colleagues were attempting to clear up jurisdictional issues created by recent court decisions and return protections that had been eliminated as a result.

But Albrecht argued “…the CWRA seeks to fix something that is not broken. The CWA is not the problem. Rather it is the agencies’ administration of the CWA that is the problem.” She added, “The WAC members believe that the solution to resolving uncertainties regarding the CWA is not to substantially revise the Act as this legislation proposes. There is no need to reinvent the wheel. Rather, Congress should make the agencies do their job.”

But a congressional investigation found that the EPA under the Bush Administration dropped or stalled 500 clean water enforcement cases. When the EPA finally provided documents revealing the cases, they redacted the identity of every corporation or individual accused of polluting the waters, according to Reps. Henry Waxman (D-CA) and James Oberstar (DFL-Minn.).