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 from Hunton Andrews 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 a 2016 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.
Photo credit: Brian Stansberry, Wikipedia Commons.