Updated on May 22, 2019 with additional information about an Ohio Power Siting Board decision that could kill the Icebreaker offshore wind power project on Lake Erie, and the role a law firm backed by coal producer Murray Energy played in opposing the project.

Murray Energy paid nearly $1 million to a law firm that’s fought new wind and solar power development in Ohio. The law firm also played a role in the now-bankrupt coal producer’s efforts to secure a bailout and regulatory rollbacks from the Trump administration. 

Murray Energy paid a total of $993,628.88 to the law firm Benesch, Friedlander, Coplan & Aronoff since last August, according to bankruptcy case filings.

Thousands of dollars also flowed to the law firm from Foresight Energy, in which Murray Energy owns a controlling share, as Foresight headed toward bankruptcy. 

A “Statement of Financial Affairs” filed by Murray Energy Corporation in its bankruptcy case lists ten payments totaling $729,934.88 made to the law firm between August 8 and October 25 of last year. One $250,000 payment to the firm was made on October 25, just four days before Murray Energy filed for bankruptcy. 

Murray Energy then requested and obtained court approval to continue to employ Benesch Friedlander and other outside firms during its bankruptcy. A total of $263,694 was paid to Benesch Friedlander for its work on “Environmental Litigation Matters in West Virginia and Ohio” in February and March of this year, according to another bankruptcy case filing

Murray Energy’s pre-bankruptcy payments to Benesch Friedlander overlap with legal filings by an attorney from the firm on behalf of opponents of the Icebreaker offshore wind power project

Murray Energy listed “services” as the reason for its pre-bankruptcy payments to Benesch Friedlander, and the bankruptcy documents don’t provide much more detail about what those services entailed. 

The pre-bankruptcy payments disclosed by Murray Energy were made over a 90-day time period when John F. Stock, a Benesch Friedlander attorney, filed expert testimony and a post-hearing brief on behalf of two Bratenahl, Ohio, residents who are opposing the Icebreaker offshore wind power project in Lake Erie before the Ohio Power Siting Board (OPSB). Six of the payments were made on October 11, the same day Stock filed the post-hearing brief.

In the brief, Stock criticized the OPSB’s professional staff for dropping a “feathering” requirement that would have shut down Icebreaker’s six turbines at night for most of the year. 

On May 21, the Ohio Power Siting Board, chaired by Samuel Randazzo – who previously represented anti-wind activists as a lobbyist and attorney – “approved” Icebreaker, but with a “poison pill” that could prevent the project from moving forward. The OPSB’s approval comes with a “feathering” condition that would require Icebreaker’s turbines to be shut down at night for the majority of the year. 

“Today’s order is not an approval,” David P. Karpinski, the president of the Lake Erie Development Corporation that’s developing the project, said in a statement responding to the OPSB’s order.

“A condition added by the Ohio Power Siting Board (OPSB) may well be fatal to the entire project,” Karpinski said. 

As Kathiann Kowalski reported for the Energy News Network, the OPSB’s order reneged on a key compromise: 

OPSB staff had first suggested nightly shutdowns for most of the year in 2018, despite LEEDCo having reached an agreement with environmental groups for monitoring and safeguards to protect bats and birds. The proposed construction site north of Lakewood is not within a main migratory flyway for birds. An ornithologist who prepared a study for a draft environmental impact report had called it “the lowest-risk project” he ever worked on.

After months of negotiations between LEEDCo and staff at the OPSB and Ohio Department of Natural Resources, the developer reached a compromise with regulatory staff last May that dropped the requirement. 

The OPSB’s order mentions the “Bratenahl Residents” about 125 times, including in key sections discussing the “feathering” issue, but the name “Murray Energy” is never mentioned in the order.

Murray Energy’s funding of the Icebreaker opponents’ legal fees has been previously reported, but the bankruptcy documents provide new information about the coal company’s payments to Benesch Friedlander since last summer…

Murray Energy’s funding of the Icebreaker opponents’ legal fees has been previously reported, but the bankruptcy documents provide new information about the coal company’s payments to Benesch Friedlander since last summer.

“The only formal opponents are two northern Ohio residents whose legal expenses and expenses for expert witnesses are being funded by coal producer Murray Energy Corp.,” E&E News reported in a September story on the Icebreaker project.

The Cleveland Plain Dealer first reported in 2018 on Murray Energy’s funding of the Bratenahl residents’ legal expenses in the Icebreaker case, based on documents and testimony obtained during depositions. 

After Murray Energy filed for bankruptcy in October, Stock filed another brief in the case that stated the coal company was no longer paying the Bratenahl residents’ legal fees. On the same day, Murray Energy filed its motion seeking bankruptcy court approval to employ Benesch Friedlander and other outside firms.  

Prior to representing the Bratenahl residents, Stock requested to be added to the service list for the Icebreaker project’s OPSB case on behalf of the Campaign for American Affordable and Reliable Energy, a front group for the coal industry

A service notice posted after the OPSB announced its May 21 decision on the Icebreaker project listed CAARE as a party of record in the case, represented by Emily V. Danford from Benesch Friedlander. However, Danford left the law firm in 2018 and has since worked as an attorney for FirstEnergy, representing the utility before the Public Utilities Commission of Ohio. (Danford has not yet replied to a request from EPI asking whether she remains involved in CAARE now.)

Climate denial groups, including the Committee for a Constructive Tomorrow and Heartland Institute, that have received funding from Murray Energy have also attacked Icebreaker and many other wind power projects. 

Stock and Benesch Friedlander have represented anti-wind activists in other cases in Ohio; last year Stock declined to answer a reporter’s questions about who paid for his work on one of those cases.   

Stock also represented the Ohio Coal Association, which counts Murray Energy’s founder and chairman Robert E. Murray among its board members, last year in its successful bid to block American Electric Power’s plan for funding new wind and solar projects in Ohio. In February, the Ohio Coal Association filed a claim for $23,500 in dues in Murray Energy’s bankruptcy case. 

Other documents provide more details about Benesch Friedlander’s earlier work for Murray Energy

Bankruptcy records currently document Murray Energy’s payments to Benesch Friedlander between August 2019 and March 2020, but they don’t provide information about how much the law firm was paid for its earlier work on behalf of the coal company. 

Documents obtained through a Freedom of Information Act request by American Oversight show that Benesch Friedlander submitted comments on behalf of Murray Energy in support of FirstEnergy Solutions’ 2018 petition to the Department of Energy for a bailout of struggling coal and nuclear power plants in the PJM power grid

Benesch, Friedlander, Coplan & Aronoff LLP was also cc’ed on a 2017  “Confidential Memorandum” from Robert Murray that laid out a “holistic strategy” for the Trump administration “to help to bring American Coal back from the precipice of extinction.” The memo recommended a number of actions that the Trump administration could take to roll back or weaken federal limits on coal-related pollution and enforcement of mine safety rules. 

Orla E. Collier, the co-chair of Benesch, Friedlander, Coplan & Aronoff’s Energy Practice Group, submitted comments to the Environmental Protection Agency on behalf of Murray Energy. In the comments, Murray Energy “enthusiastically applauded” the Trump administration’s rollback of the Obama-era Clean Power Plan, which sought to establish the first-ever limits on carbon dioxide emissions from power plants under the Clean Air Act. The coal company’s comments also attacked the EPA’s science-based 2009 endangerment finding for greenhouse gas emissions that cause climate change.

Foresight Energy’s payments to Benesch Friedlander

In March, Foresight Energy followed Murray Energy into bankruptcy. Like Murray Energy, Foresight Energy obtained court approval to employ Benesch Friedlander during its bankruptcy. 

A declaration and disclosure statement filed by Benesch Friedlander shows that Foresight Energy owes the firm just over $33,000 for services provided before the bankruptcy. Benesch Friedlander disclosed estimated monthly compensation of $5,000 to $10,000 for “general legal services, including litigation and regulatory work.” It also disclosed an hourly rate of $245-$730. 

Foresight Energy Services paid Benesch Friedlander $7542.35 on March 6, just a few days before filing for bankruptcy. Hillsboro Energy, another subsidiary of Foresight Energy, also paid $6,457.65 to the law firm that same day. 

Last summer in Illinois, Benesch Friedlander submitted comments on behalf of Foresight Energy in which the coal producer “vehemently opposed” the Integrated Resource Plan of the City of Springfield’s municipal utility. The plan called for the retirement of several old coal generating units, a money-saving move later approved by the city council. In the comments, Foresight Energy attacked a recommendation for the utility to commit to procuring 53 percent of its energy from renewable sources by 2031.

In other bankruptcy case filings, Murray Energy has pointed to the decreasing costs of wind and solar power as a factor in coal’s decline.

Top image of the Middlegrunden offshore wind farm in Denmark by Kim Hansen and Richard Bartz via Wikipedia Commons. Creative Commons Attribution-Share Alike 3.0 Unported license.

Posted by Dave Anderson

Dave Anderson is the policy and communications manager for the Energy and Policy Institute. Dave has been working at the nexus of clean energy and public policy since 2008. Prior to joining the Energy and Policy Institute, he was an outreach coordinator for the climate and energy program at the Union of Concerned Scientists. He is also an alumnus of the Sierra Club and the Alliance for Climate Protection (now the Climate Reality Project). Dave’s research has helped to spur public scrutiny of political attacks on clean energy and climate science by powerful special interests, such as ExxonMobil and the American Legislative Exchange Council (ALEC). His work has been cited by major media outlets, such as CBS News and the Wall Street Journal, and he has served as a speaker on panels at national solar industry conferences. Dave holds a MA in Political Science from the University of New Hampshire, where he also received a BA in Humanities.