NY Times ignored Holmstead's extensive energy lobbying

In a Februrary 18 article discussing whether the Environmental Protection Agency (EPA) would begin to regulate carbon dioxide emissions under the Clean Air Act, The New York Times quoted "Jeffrey R. Holmstead, the former head of the [EPA's] office of air and radiation" warning that such efforts are "[p]otentially ... a huge mess," and reported that Holmstead "said that under the clean air law any source emitting more than 250 tons of a declared pollutant would be subject to regulation, potentially including schools, hospitals, shopping centers, even bakeries, which has prompted some critics to call it the 'Dunkin' Donuts rule.' " Besides noting his former role at the EPA, the Times mentioned only that Holmstead is the "director of environmental strategies at the law firm Bracewell & Giuliani." The article did not note, however, that Holmstead lobbies on behalf of energy companies and that -- as the Times previously reported -- Bracewell & Giuliani is an energy lobbying firm.

The Senate lobbying database (lobbyist name: Holmstead, Jeffrey) lists Holmstead as lobbying for more than half-a-dozen energy companies and organizations -- including the Southern Company. Moreover, a May 2, 2007, New York Times article reported that on issues like clean air and climate change, "[e]nvironmentalists say" Bracewell & Giuliani "has had considerable success in persuading the Bush administration to ease Clinton-era enforcement efforts against coal-fired plants and write policies favored by that sector over tougher alternatives." The Times continued:

In his third month in office, Mr. Bush reversed a campaign pledge to cap carbon dioxide emissions from power plants. The administration also adopted a slower timetable for reducing mercury emissions from power plants than had been recommended by the Environmental Protection Agency's own staff.

Bush administration officials have argued that their policies are the best course to ensure an adequate supply of affordable power while making substantial improvements to the environment. Environmentalists have credited the administration with creating one regulation, the Clean Air Interstate Rule, that will reduce power plant emissions.

Several years ago, the Bracewell firm played a significant role in an effort to block the E.P.A. from continuing a series of lawsuits filed against coal-fired electric power plants under the Clinton administration. The suits sought to enforce a rarely used provision of the Clean Air Act that required plants to install pollution controls when they altered their facilities.

Bracewell lawyers and other industry representatives argued that the E.P.A. under President Bill Clinton had retroactively redefined routine maintenance as modifications to bring the regulation into play.

Bracewell and some of its biggest clients, including the Southern Company, formed a new lobbying group, the Electric Reliability Coordinating Council, to fight for legislative and policy changes to kill the lawsuits. The council operates as an extension of Bracewell's Washington office and is staffed by its partners and professionals. It also contracted with Haley Barbour, the former Republican National Committee chairman, as a lobbyist. (Mr. Barbour is now governor of Mississippi.)

During the debate in 2001, Mr. Barbour and Mr. Racicot met with Mr. Cheney and federal energy officials to suggest that the enforcement effort was misguided. An internal struggle ensued and several E.P.A. enforcement officials resigned, saying they feared that their regulatory role was being subsumed by energy industry concerns.

At one point, Christie Whitman, then the E.P.A. administrator, sent Mr. Cheney a memorandum arguing that the administration would "pay a terrible political price if we undercut or walk away from" the lawsuits.

Mr. Cheney's task force ultimately called on the agency to review the rule, and a new regulation said utilities would have to add pollution-control devices only if construction projects were valued at more than 20 percent of the plant's value.

Eliot Spitzer, then New York attorney general, was among many officials who took issue with the rule, later calling it "part of a Bush administration efforts to eviscerate the Clean Air Act."

It was quickly challenged in court. Last month, the United States Supreme Court ruled against the government's position. It remains unclear whether the administration will pursue the pending enforcement lawsuits that have been stalled for years.

Bracewell's effectiveness in the regulatory arena has been enhanced by its hiring of experts who worked for the E.P.A. in policy-setting capacities. Last October, the firm hired Jeffrey R. Holmstead, a former E.P.A. assistant administrator who oversaw the writing of the struck-down regulation. Two other agency officials have also joined Bracewell in recent years.

"We are so pleased to welcome Jeff Holmstead to Bracewell," Mr. Giuliani said in announcing the new executive last year. "Jeff's familiarity with the compliance challenges facing the private sector will be a big asset to our firm."

From the February 18 New York Times article:

Many environmental advocates, however, said the E.P.A.'s action was long overdue, but added that it was only as a stopgap until Congress passed comprehensive climate change legislation.

"It's politically necessary, scientifically necessary and legally necessary," said David Bookbinder, chief climate counsel at the Sierra Club, a plaintiff in the Supreme Court case.

But, Mr. Bookbinder added, Congressional action is preferable to the agency's acting on its own. "We are loudly advocating for tailor-made legislation as the best means of addressing carbon emissions," he said. "Trying to address climate change via a series of rule makings from E.P.A. is a distant second best."

As Ms. Jackson navigates the complexities of carbon regulation, she will be advised by Lisa Heinzerling, a former law professor at Georgetown who wrote the winning Supreme Court briefs in Massachusetts v. E.P.A. Ms. Heinzerling is now the agency's lead attorney for global warming matters.

Jeffrey R. Holmstead, the former head of the agency's office of air and radiation, said that a finding of endangerment from emissions of heat-trapping gases did not initiate immediate regulation but started a clock ticking on a process that typically took 18 months to two years.

"Potentially, it's a huge mess, not only for E.P.A. but for state regulatory agencies, because the Clean Air Act is second only to the Internal Revenue Code in terms of complexity," said Mr. Holmstead, now director of environmental strategies at the law firm Bracewell & Giuliani.

He said that under the clean air law any source emitting more than 250 tons of a declared pollutant would be subject to regulation, potentially including schools, hospitals, shopping centers, even bakeries, which has prompted some critics to call it the "Dunkin' Donuts rule."

But Mr. Bookbinder and other supporters say the regulations can be written to exempt these potential emitters. Ms. Jackson said that there was no timetable for issuing regulations governing carbon emissions and that her agency would not engage in "rash decision making."

But she also said that the Supreme Court decision obliged her to act.