How environmentalists drew a blueprint for EPA emission policy
Following the strategy of oil-industry lobbyists who wrote an energy policy in the George W. Bush years, a team at the green Natural Resources Defense Council created a carbon-emissions proposal that heavily influenced a rule adopted by the Obama administration.
The New York Times
In November 2010, three combatants gathered in a sleek office here to build a carbon-emissions policy that they hoped to sell to the Obama administration.
One was a lawyer who had been wielding the Clean Air Act since his days at the University of California, Berkeley. Another had turned to practicing environmental law and writing federal regulations to curb pollution after spending a summer on a pristine island off Nova Scotia. The third, a climate scientist who is a fixture on Capitol Hill, became an environmentalist because of postcollege backpacking trips in the Rockies.
The three were as seasoned and well connected as Washington’s best-paid lobbyists because of their decades of experience and the relationships they formed in the capital.
Over the next two years the lawyers, David Doniger and David Hawkins, and the scientist, Daniel Lashof, worked with a team of experts to write a 110-page proposal, widely viewed as innovative and audacious, that was aimed at slashing planet-warming carbon pollution from the nation’s coal-fired power plants. On June 2, President Obama proposed a new Environmental Protection Agency (EPA) rule to curb power-plant emissions that used as its blueprint the work of the three men and their team.
It was a remarkable victory for the Natural Resources Defense Council (NRDC), the longtime home of Doniger and Hawkins and, until recently, of Lashof. The organization has a reach that extends from the big donors of Wall Street to the elite of Hollywood (Leonardo DiCaprio and Robert Redford are on its board) to the far corners of the EPA, where Doniger and Hawkins once worked.
The group’s leaders understand the art of influence: In successfully drafting a climate plan that heavily influenced the president’s proposal, the organization followed the strategy used by the American Petroleum Institute, the lobbying arm of the oil industry, to write an energy policy for Vice President Dick Cheney during the Bush administration.
“The NRDC proposal has its fingerprints throughout this, for sure,” said Dallas Burtraw, an energy-policy expert at Resources for the Future, a Washington nonprofit, describing how the council’s work influenced the proposed 650-page environmental regulation.
Representatives of the coal industry agreed. “N.R.D.C. is crafting regulatory policy for the E.P.A. that is designed to advance their agenda at the cost of American businesses and people who will pay the price through much higher electricity rates,” wrote Laura Sheehan, a spokeswoman for the American Coalition for Clean Coal Electricity, a lobbying group. Scott Segal, who lobbies for the coal industry with the firm Bracewell & Giuliani, said in an email that the council’s experts “have unprecedented access to this E.P.A. and are able to project influence down to the details of regulatory proposals and creative legal theories.”
The U.S. Chamber of Commerce was so certain of the council’s sway that it used the group’s proposal as the basis for its economic analysis of what it expected in the EPA rule, before the rule’s actual release. “It is no surprise that N.R.D.C. has a great deal of influence on E.P.A. and the White House,” Matthew LeTourneau, a chamber spokesman, wrote in an email.
Novel plan devised
Since its founding in 1970, the NRDC has not sought the public profile of activist organizations like Greenpeace, but it has piled up a string of substantial legal and policy victories.
Its annual budget of about $120 million is far higher than that of most environmental groups, in part because of board members like DiCaprio and Redford, who are the attractions at lavish fundraising galas for studio heads and Silicon Valley magnates.
In a typical event in 2011, guests at the Malibu home of Ron Meyer, now the vice chairman of NBCUniversal, sipped Champagne and watched surfers paddle out to form a peace sign in the Pacific Ocean. The event raised $2.6 million.
The council’s fundraising office in New York also has found big donors in the business world, including at Google and Goldman Sachs. “With NRDC, I would like to think I’m getting the best bang for the buck,” said Alan Horn, the chairman of Walt Disney Studios and a member of the group’s board. “These people are steeped in expertise.”
Doniger, 62, has spent 40 years, as he put it, “using legal skills to combat pollution.” He joined the NRDC soon after graduating from law school at the University of California, Berkeley, and spent seven years as a senior clean-air lawyer at the EPA during the Clinton administration. He went back to the environmental group during the Bush administration and in 2007 helped write the legal briefs for a landmark Supreme Court case upholding the EPA’s authority to enact climate-change regulations.
Hawkins, 71, quit Columbia University’s law school but returned after living with his wife on MacLeans Island, off Nova Scotia. “It made me appreciate how magical the cycles of natural systems were, and I knew I wanted to go back and do environmental protection with my law degree,” he said. He worked at the EPA in the Carter administration, where he developed regulations to cut soot and smog from smokestacks.
Lashof, 54, who has a doctorate in energy and natural resources from Berkeley, worked at a government solar-energy laboratory in Colorado, where hikes in remote pockets of the Rockies spurred his interest in the environment. This year he became chief operating officer at NextGen Climate, the super PAC run by billionaire environmentalist Tom Steyer.
Together the three men and their team worked in the group’s green 15th Street office — the space includes an energy-saving lighting system and an indoor-garden wall of plants — to conceive the novel idea at the heart of Obama’s climate-change rule. Rather than impose a uniform national standard for reducing power-plant carbon emissions, the regulation sets different limits for each state and allows states the flexibility to meet the standards by picking from a menu of policy options — including creating state programs that require power plants to pay a fee for their carbon pollution; installing new wind and solar power; and making appliances, lighting and air conditioning more energy-efficient. Once enacted, such a plan could do far more than just shut down coal plants; it could spur a transformation of the nation’s electricity sector.
“It’s remarkable, it’s novel, it’s really controversial, and that’s the centerpiece of the NRDC approach,” said Charles Knauss, an environmental lawyer and a former Republican congressional counsel on clean-air law. But Knauss and others said the rule’s structure also made it more vulnerable to lawsuits. While clean-air regulations historically have prescribed specific remedies to cut smokestack pollution, the NRDC approach allows states unprecedented flexibility, creating multiple openings for legal attack.
To crunch numbers, the council hired the same statistics firm used by the EPA to ensure that the agency could more easily adopt the plan. The cost, Doniger said, was “a few hundred thousand dollars.”
“First out of the gate”
The EPA said the council did not wield outsize influence in shaping the regulation. When preparing the climate-change rule, the agency sought comments from hundreds of groups, including environmental advocates, state regulators, electric utilities and the coal industry, while dozens of EPA analysts and legal experts worked on the plan.
“We had 5,000 conversations,” said Joseph Goffman, the EPA’s top clean-air lawyer. “It’s impossible to say there was any one thing.” The EPA’s plan, for example, does not cut pollution as quickly or deeply as the council’s proposal.
Indisputable, however, is that the NRDC was far ahead of the EPA in drafting the architecture of the proposed regulation.
By late 2012, Doniger, Hawkins and Lashof had finished their proposal and began to travel across the country to present it to state regulators, electric utilities, executives and anyone else they expected to have a hand in shaping the rules. In Washington, Doniger briefed Goffman at the EPA and Obama’s senior climate adviser, Heather Zichal.
“The goal was to move this idea very quickly into the public conversation and affect as many people’s thinking as possible,” Doniger wrote in an email.
EPA officials did not start working in earnest on the rule until last fall, when they held sessions around the country to hear from regulators, utilities and many others the NRDC had by then been briefing for months. Many told the EPA that they wanted to see an innovative plan like the one they had heard about from the council, even if they did not specifically name it as the group’s plan.
“They were the first out of the gate,” said Adam Kushner, a former top legal official at the EPA. “And the first out of the gate frames the debate.”