The court was divided 4-4.
Even as the Environmental Protection Agency finally attempts to limit carbon dioxide pollution from coal plants, it is meeting resistance at the state level, thanks to a secretive campaign by the American Legislative Exchange Council (ALEC).
This reporter has obtained a number of internal documents from ALEC that provide a rare glimpse into how this corporate-funded lobbying group is attempting to derail the draft federal pollution standards.
ALEC is funded by many of the largest fossil fuel and utility companies in the United States, the very companies that have played such a destructive role with our environment.
CO2 pollution is a key driver of climate change. In the United States, power plants (mostly coal-fired) burn an enormous 2.2 billion tons of CO2 every year, accounting for around 40 percent of the nation's total emissions.
"The EPA's proposal to cut carbon pollution from the power sector is both the most important thing a U.S. President has done to address climate change, and woefully inadequate, given the urgent warnings from climate scientists," says Gabe Wisniewski, Greenpeace USA climate campaign director.
Limiting carbon pollution is actually surprisingly popular. Two polls this year found that 70 percent of Americans approve of establishing carbon pollution limits, while the more recent of the two—commissioned by The Washington Post—found that 63 percent supported the limits even if implementing them would cost people $20 extra a month in energy costs.
But that isn't stopping ALEC.
For many years, ALEC has worked to challenge the EPA's ability to regulate carbon emissions, and to undermine renewable energy more generally, arguing instead that market forces should dictate our sources of energy. Its language has become more careful in recent years. It no longer promotes the ALEC "Top 10 Myths About Global Warming" on its website. ("Myth 1" was that human activity is causing the Earth to warm. "Myth 4" was that extreme weather phenomena are increasing because of global warming.)
Despite adjusting its tone, ALEC has not relented in its promotion of policies that perpetuate the use of fossil fuels at the expense of the environment.
"ALEC has repeatedly adopted the position that regulation of greenhouse gases under the Clean Air Act is unnecessary, ineffective, and economically destructive," wrote Todd Wynn two years ago when he headed up ALEC's energy, environment, and agriculture task force. Wynn is now a lobbyist for the Edison Electric Institute.
To ensure that the energy market remains dominated by its fossil fuel company funders, ALEC promotes an array of "model" bills that undermine efforts to protect the environment. One such bill opposes state low-carbon fuel standards, which otherwise could limit the sale of dirty Canadian tar sands. ALEC receives funding from the Canadian company TransCanada, which is aiming to build the controversial Keystone XL pipeline. This ALEC bill was introduced in twelve states in the 2013 and 2014 sessions. According to an e-mail obtained by this reporter, after an ALEC-organized all-expenses paid trip to Alberta in 2012, sponsored by
TransCanada, ALEC wrote to the legislators on the trip reminding them of what each lobbyist had paid for on the trip and suggesting they send them "thank you notes."
In 2012, ALEC adopted legislation called the "Electricity Freedom Act," from a proposal sponsored by the climate change denial group the Heartland Institute. The legislation would repeal targets for renewable energy production already in place in twenty-nine states. After a series of defeats in 2013, ALEC scored its first major victory for this agenda this year, as Ohio voted to freeze its renewables mandate, with legislation pushed by ALEC board member state senator Bill Seitz.
ALEC is even going after people who want to generate solar power for their homes. The boom in home solar energy generation—there has been a 60 percent increase in domestic solar installations in the past year—is a threat to ALEC's dirty energy producing members, so they have a bill to amend so-called net metering laws that allow homeowners to sell excess electricity back to the grid. It is the ability to do this that makes solar an increasingly affordable possibility for homeowners. ALEC's bill would charge homeowners additional fees, with ALEC environment task force director John Eick telling The Guardian that these users are "free riders on the system."
Last December at an ALEC conference held in Washington, D.C., the EPA's looming decision to limit CO2 was a hot topic. In fact, a secret roundtable discussion was held there to map out strategy for 2014. Meeting participants included industry lobbyists, state legislators, and at least one state regulator: Ron Gore, from the Alabama Department of Air Management. Notes from the meeting reveal the blueprint for the anti-EPA strategy currently being deployed by ALEC and its allies.
According to the notes, Michael Whatley, policy adviser of the fossil fuel lobby group Consumer Energy Alliance, which receives funding from Peabody Energy along with other coal, oil, and gas companies, underlined the industry's urgent need to mobilize state public officials, including legislators, attorneys general, environmental and public utility commissioners, and energy officials in many states. They all have to come out strongly in opposition to the emission standards, Whatley said.
At one session, legislators were reportedly called on to engage in "guerrilla warfare" against the EPA. Peabody Energy, a longtime leader and big financial supporter of ALEC, was a top conference sponsor, along with the American Coalition for Clean Coal Electricity, a trade association group for the coal industry.
"Peabody plays a major role in industry efforts to block action on climate change, with its own lobbyists and PR campaigns, as well as through front groups it supports like ALEC," says Annie Leonard, the executive director of Greenpeace USA. "A handful of companies just want to keep digging up coal without any regard to the consequences."
Members of the ALEC environment task force received a presentation about the potential EPA rules before lobbyists and legislators voted together to adopt two new anti-CO2 resolutions for legislators to introduce. According to an internal ALEC tracking document, obtained by this reporter, ALEC tracked seventeen states that introduced language relating to this issue so far this year, with eight states already adopting bills that reflect ALEC's position.
Speakers at the meeting encouraged rightwing elected officials from different states to collaborate with each other and to provide funds for public relations campaigns and for possible future litigation from state attorneys general.
Two weeks after its D.C. conference, ALEC sent an e-mail to members of its environment task force announcing that in 2014 it would begin monthly conference calls to discuss combatting EPA greenhouse gas regulations, and that the first of these calls was to further discuss the strategy of engaging state AGs.
This reporter acquired a set of minutes from the call, which featured a presentation from Nebraska Attorney General Jon Bruning, currently campaigning to be Nebraska governor. He has been suing in state court to try to speed the construction of the KXL pipeline without State Department approval, so far unsuccessfully. On the call, Bruning boasted of Nebraska having "challenged EPA authority more than thirty times" and pledged to keep doing so. He told other ALEC members to "encourage state attorneys general to fight EPA power grab."
An unnamed representative from ALEC on the call echoed this strategy, saying ALEC would push their members to do the same and encouraged them to work with Bruning on this approach. One of the legislators on the call, state representative Tom Lockhart from Wyoming, scolded utility companies for being reluctant to fight hard. "We need to encourage them to push back," he said.
Paul Loeffelman was also on the call. He is a lobbyist for American Electric Power, one of the largest emitters of CO2 in the country, and he co-chairs the ALEC environment task force. He said his company is also encouraging state AGs to work with legislators and suggested the need for a "how to guide" for states to help them challenge the standards.
In April, ALEC organized another call for its members. This time it was with South Dakota Attorney General Wayne Stenehjem, who, according to an e-mail this reporter obtained, said he would provide ALEC members with "ideas and legal expertise" to address the forthcoming EPA standards.
Since January, Ohio, Florida, Indiana, Wyoming, Georgia, and South Dakota have all considered "model legislation" related to the ALEC resolutions on CO2.
ALEC isn't stopping there, though. More is on its way at the ALEC annual meeting in Dallas in late July. "We'll probably put together even more language specifically targeting this regulation," ALEC environment task force director John Eick told Politico reporter Andrew Restuccia.
The ALEC counterattack may already be having an effect on the Obama Administration. It has signaled that it may be prepared to reduce the limited reductions required under the proposals, if there is pressure from states. Just one day after the EPA announcement, Bloomberg News reported that the EPA was prepared to revise the rule if states demonstrate they can't meet the proposed limits. EPA Administrator Gina McCarthy told Bloomberg that the Administration anticipates "a lot of give and take with the states."