When news reports showed an interest group's fingerprints on a U.S. EPA air rule, lawmakers and other critics of the administration went into a tizzy.
The ensuing scandal spurred a congressional watchdog to launch an investigation, pressing EPA to fork over its communications about the rule with outside parties. He demanded to know, "How did it happen, and how do we restore EPA's credibility and independence?"
But the speaker wasn't Louisiana Republican Sen. David Vitter during his recent campaign to skewer the Obama administration for "colluding" with the Natural Resources Defense Council on climate policy. It was 2004, and the watchdog was California Democratic Rep. Henry Waxman.
President Obama's critics have seized on recent reports about environmentalists swaying EPA's climate plans as proof that the administration has improperly schemed with greens to set environmental policy. But the practice of borrowing outsiders' policies -- and the scathing rhetoric that is unleashed when it's uncovered by opposition -- are nothing new.
"Thus has it ever been," said Scott Segal, an industry lobbyist at Bracewell & Giuliani.
Instances of rulemakers and legislators lifting ideas or language from interest groups have become commonplace. Before the NRDC controversy, the George W. Bush administration used an industry group's language in a mercury rule. It's become common practice for state lawmakers to lift legislative language from the American Legislative Exchange Council. And a recent New York Times investigation revealed behind-the-scenes coordination between attorneys general and corporations to combat federal regulations.
Yet these events never fail to spark outrage of groups on the other side of the issue or cries from lawmakers who oppose the administration.
In the latest uproar over outsiders' impact, conservatives are attempting to undermine EPA's proposal to slash greenhouse gas emissions from power plants by alleging that the Obama administration was doing the bidding of NRDC. A July New York Times article painted NRDC attorneys as the architects of "the novel idea at the heart of Mr. Obama's climate-change rule."
Vitter and other Republicans went on the attack. "It appears that NRDC's unprecedented access to high-level EPA officials allowed it to influence EPA policy decisions and achieve its own private agenda," lawmakers wrote to EPA and NRDC in September as they demanded documents about NRDC's involvement in crafting the rule.
"The fact that an ideological and partisan group drafted a rule that places a tremendous cost on everyday Americans through increased electricity prices is harmful and outrageous," they added.
And the saga continues. Vitter's office continues to release documents he says show a "beyond cozy" relationship between the green group and the Obama administration. Meanwhile, NRDC is blasting Vitter's inquiries as an "illegitimate fishing expedition"; EPA insists that NRDC was one of many groups that weighed into the rule and didn't have an outsized impact (Greenwire, Dec. 11).
A page from the Bush playbook?
If it all sounds familiar, it's because this drama has unfolded before on Capitol Hill.
In 2004, the George W. Bush administration proposed a rule to clamp down on mercury from power plants. It contained passages -- including one stating that EPA's rule didn't have to regulate other hazardous toxins, like lead and arsenic -- that were almost identical to a memo submitted to the agency by Latham & Watkins, a law firm representing power plants, according to a Washington Post report.
Then-EPA air chief Jeff Holmstead and his top legal adviser at the time, Bill Wehrum, had worked for Latham & Watkins before they were hired at the agency.
Holmstead, now an industry attorney at Bracewell & Giuliani, told the Post at the time, "That's not typically the way we do things, borrowing language from other people. ... But it came to us through the interagency process."
That 2004 story also quoted Bob Perciasepe, who was the Obama EPA's deputy chief until earlier this year. "The regulations are supposed to be drafted by the staff -- the people in the science program and regulatory branches," he said. "I think it would be inappropriate" for EPA to lift heavily from an industry memo, "unless it was from a government contractor."
Like Vitter and his GOP allies are now, lawmakers loudly proclaimed their outrage.
"The Bush administration continues to let industry write the rules on pollution, and this is just one more example of how they abuse the public trust," Sen. James Jeffords (I-Vt.) -- then the ranking member of the Senate Environment and Public Works Committee -- told the paper at the time.
"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," Waxman -- then the highest-ranking Democrat on the House Government Reform Committee -- and Rep. Tom Allen (D-Maine), said in a letter to EPA. "Congress and the American people need to know how industry lobbyists came to write a significant portion of an EPA formal rulemaking proposal."
Industry and environmental representatives argue that the NRDC and Latham & Watkins examples aren't entirely the same.
"The Latham language was not actually in the proposed mercury rule. It appeared in the preamble as part of the description of an alternative basis for regulating mercury that was neither proposed nor adopted by the administration," said Segal of Bracewell & Giuliani. "By contrast, the NRDC approach proffered a legal theory that is the exact basis upon which the Obama administration has proceeded."
Daniel Weiss, senior vice president for campaigns at the League of Conservation Voters, said NRDC and other environmental groups "provide conceptual ideas for the agency" and "conduct analyses to make a factual case for the proposal."
He added, "This is very different from taking language written by utilities' lawyers and inserting it into a regulatory the proposal. The first is advocacy, while the second is a special favor for polluting interests."
Beyond federal rules, there are a plethora of recent examples of legislation that has borrowed heavily -- or outright copied -- from others.
State lawmakers have consistently found themselves in hot water for pushing legislation with language from the American Legislative Exchange Council's "model" bills. The conservative group has pushed state-level efforts to condemn EPA rules and to repeal state-level renewable energy standards in places like North Carolina and Kansas (Greenwire, April 4, 2011; E&ENews PM, July 31, 2013).
Liberal groups and environmentalists have denounced ALEC's efforts to advance its agenda by encouraging the copying and pasting of legislative text. But liberals are now fighting back with their own version of the group. The State Innovation Exchange -- founded by a Democratic strategist -- aims to prepare its own library of "model policy" for Democrats to use, Bloomberg reported last week.
To some, this style of borrowing ideas liberally makes perfect sense.
"I believe that we make the best public policy when both sides present their best case and then the legislator or the elected official is allowed to choose what is most persuasive in light of their own experiences, and their political beliefs," Segal said. "Events move too quickly to not have everybody working on presenting the best information."
Rena Steinzor, president of the liberal advocacy group Center for Progressive Reform, said the practice is "corrosive no matter who does it."
She said the instances of interest groups influencing laws and regulations are "all very similar, and I think they all have the effect of making government look bad, which is very unfortunate."
That goes for the NRDC example, as well, she said, although she added that it hasn't been made clear exactly how NRDC influenced the Obama administration's climate rule. "I didn't think they did any good for EPA and its reputation," Steinzor said.