LAW

Industry advocate invokes FDR in Clean Power Plan battle

Peter Glaser came to Washington in the late 1970s to fight poverty, not environmental regulations.

The Clean Air Act super-lawyer was fresh from Middlebury College with a bachelor's degree in political science and working for the Economic Opportunities Commission of Alexandria, Va.

"I was actually a community organizer, just like Barack Obama," Glaser said in an interview. "We sort of went in different directions over the years."

Glaser is now a force in the legal wars over U.S. EPA air regulations, shaping legal strategy for his coal- and utility-sector clients. The partner at Troutman & Sanders LLP has been in the thick of challenges to federal rules for curbing power-sector emissions that cross state lines and for smokestack mercury and other toxics. And he has emerged as a big player in the fight against EPA's Clean Power Plan, the contentious effort to curb greenhouse gases from power plants.

In a paper published by the Federalist Society for Law and Public Policy Studies last year, Glaser and his colleagues Carroll McGuffey and Hahnah Williams Gaines argued that states have little to lose by not filing compliance plans demanded by EPA. Dubbed "just say no," the strategy has been embraced by conservatives, most notably by Senate Majority Leader Mitch McConnell (R-Ky.) (Greenwire, March 10).

While Glaser is a long way from his days as an anti-poverty crusader, he argues that his advocacy for the power industry is doing good for ratepayers who struggle to make ends meet. They are most vulnerable, he said, to energy price shocks -- particularly people who live in the coal-dependent Southeast and Midwest.

"Things that we want have to be balanced out against the interests of people who don't have it so well," he said.

Glaser, who said he recently changed his political affiliation from Democratic to independent, argues that his former party has lost touch with lower-income people, focusing on the priorities of well-heeled liberals.

The Obama administration's climate regulations are a case in point, he said.

"I think there are a lot of things that the Obama administration is doing that are not really in the best interest of the working class or poor people," he said. "I don't frankly understand it. I don't know what Franklin Roosevelt would think of all this stuff."

In fact, rural electrical cooperatives originated by Roosevelt in a 1935 executive order have been among the greenhouse gas rule's most passionate opponents.

Jeff Holmstead, who was EPA air chief in the George W. Bush administration and now represents industry clients at Bracewell & Giuliani, puts Glaser among the best attorneys on air issues.

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"There is a small handful of lawyers who have really done the heavy lifting on the legal issues in all these power plant cases over the last few years," Holmstead said. "He's certainly one of that fraternity."

But Glaser seems to have pledged the fraternity by accident.

"This is something I tell my kids: You don't necessarily choose your ideal thing to do, you choose from the choices that are in front of you," said the father of two grown sons. "That's how it works."

Climate concerns dominate

After two years with the Alexandria commission, Glaser enrolled in the George Washington University Law School. He wanted to pursue joint degrees in city planning and law.

He was interested in urban development and assumed he'd work in zoning law.

But in law school he found part-time work in small firms that represented municipal utilities.

"They were city-owned," he said of the power generators. "I thought I would still be doing municipal, urban work."

After his graduation from law school in 1980, Glaser mostly focused on energy litigation cases.

Then came passage of the Clean Air Act amendments of 1990. And then came the regulatory push by the Clinton administration.

And just like that, opposition to regulation moved to the top of utilities' legal agendas.

"If you had asked me when I went to law school whether I would get involved in all this environmental stuff, I wouldn't have even known what you were talking about," Glaser said.

The idea of regulating carbon dioxide and other greenhouse gases emerged in the 1990s, Glaser recalled, when some state utility commissions began weighing carbon in their resource planning.

But it was Clinton EPA Administrator Carol Browner who first raised the possibility of using the Clean Air Act to address warming.

Browner herself traces the idea of using the Clean Air Act to reduce carbon to an unlikely source: then-House Majority Leader Tom DeLay (R-Texas).

DeLay sparked the idea when he demanded to know whether EPA could use the landmark air pollution law as a backdoor scheme to allow the administration to comply with the Kyoto Protocol -- a treaty Clinton officials helped negotiate but could not persuade the Senate to ratify.

EPA's top lawyers soon went to work to produce an answer, and general counsel Jonathan Cannon completed a memo in 1998 stating that carbon dioxide did fall within the scope of the air pollution law. His successor, Gary Guzy, reached the same conclusion.

Glaser said the notion "set off a little mini-firestorm."

The National Mining Association commissioned Glaser to write a memo disputing that EPA had the authority to regulate carbon and that propelled him into work on Massachusetts vs. EPA, the landmark 2007 Supreme Court case that established EPA's right to regulate greenhouse gases under the Clean Air Act.

The greenhouse gas crackdown, Glaser said, has "swallowed all" on the Clean Air Act litigation front.

Don't say 'denier'

While Glaser enjoys legal combat, the fiery rhetoric of global warming politics is another matter.

A sore point: the labeling of people who disagree with the scientific consensus about human-made emissions causing global warming as "climate deniers."

Glaser is angry that foes of regulatory action on climate should be put on a par with deniers of the Holocaust.

"Not because I'm Jewish," he said, "but because of the intended association with the denial of the Holocaust, which should be offensive to anyone."

Glaser said his opposition to increased regulation is spurred in part by seeing more effective means to reducing emissions.

The natural gas boom created by hydraulic fracturing, he said, has done more to reduce U.S. emissions.

And U.S. emission reductions have been more than offset by the growth of developing countries, he said, "and good for them."

Expanded manufacturing and other industries are making the developing world less poor, he said.

"There is a great deal of progress still to be made -- obviously, of course -- but that progress will depend on access to low-cost energy and innovation," he said.

Of late, he's been getting a lot of attention for advising states to "just say no" on the Clean Power Plan.

Glaser's argument goes that EPA's existing power plant rule is on terminally shaky legal ground, especially because it seeks to regulate beyond the property line at power plants -- a feature that Glaser, Holmstead and many others have consistently held is not supported by the Clean Air Act.

A federal plan, therefore, is likely to be substantially more limited in scope and cost, they argue.

Holmstead, by the way, is one of Glaser's favorite attorneys on the air front. His other favorites: William Brownell of Hunton & Williams and Peter Keisler of Sidley Austin. Keisler, a former acting attorney general under President George W. Bush, has argued five cases before the Supreme Court on behalf of industry clients (Greenwire, Oct. 28, 2014).

Watching Keisler at work is seeing an artist, Glaser said.

"I feel like Salieri watching Mozart," he said, a reference to 18th-century composer Antonio Salieri, whose rivalry with Wolfgang Amadeus Mozart was the subject of the 1984 film "Amadeus."

'Much to the left of me'

Glaser grew up on Long Island, N.Y., where his father owned and ran a small commercial printing business that was built from the ground up by Glaser's Eastern European immigrant grandparents.

"My family was middle-class and well-off. That's how I got to college," he said. "But I try to understand that I have advantages that other people don't have. And things I might be in favor of, I have to consider what the impact would be on other people."

A takeaway from his stint with the agency in Alexandria was that poverty is not going to be remedied by laying additional costs on energy bills.

Still worse, he said, is having a regulation that strangles industries that provide employment.

In the 1980s Glaser visited Klamath Falls, Ore., to help a town of 21,000 people hit hard by the decline of the timber industry get approval for building a hydroelectric dam -- the Salt Caves Project -- on the Klamath River.

The project's foes, he said, were people from Portland and Eugene who visited to go whitewater rafting. They didn't want the dam to interfere with their recreation, he said.

"They made this into this huge issue. And I just for the life of me thought, 'How presumptuous!'" he recalled.

Meanwhile, he said, Klamath Falls was suffering with a double-digit unemployment rate.

The Salt Caves Project was never built. In 1994 the Bureau of Land Management designated an area that included the proposed site as a federal wild and scenic river.

Glaser acknowledges that his recipe for a progressive society isn't for everyone -- even his own family.

The middle child of three, Glaser said his brother, sister and wife are all "much to the left of me."

But he said they all share the same aims.

Glaser and his wife, Paula, now live in Alexandria again, after having spent years in suburban Maryland. His sons are 25 and 30. The couple met in law school, and Paula's own career was in construction law.

Glaser's off-hours pasttime: following Manchester United soccer -- "but if they lose, I only stay angry for a couple of hours" -- history and jazz. He has just finished reading a biography of Benito Mussolini and is working his way through another book on pre-World War II Japan.

American Coalition for Clean Coal Electricity Chief of Staff Bob Paduchik said one of Glaser's greatest strengths is his ability to explain complex legal concepts in a way a layman can understand. Another, he said, was to look at all sides of a problem, turning it over "like a Rubik's cube."

When told of Paduchik's praise, Glaser laughed. Because Paduchik roots for Manchester's rival, Chelsea, he said, that "calls into question all of his opinions about everything."

Twitter: @chemnipot | Email: jchemnick@eenews.net

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