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Democrats Call for Investigation of Top EPA Officials’ Role in Reversing Enforcement Position

Feb 25, 2019
Press Release
Former industry attorneys Wehrum, Harlow appear to have swayed major change in EPA policy in favor of former client DTE

House Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ), Senator Sheldon Whitehouse (D-RI), and Senate Environment and Public Works Committee Ranking Member Tom Carper (D-DE) have asked the Acting Inspector General of the Environmental Protection Agency (EPA) to investigate whether EPA officials William Wehrum and David Harlow helped reverse the agency’s position in a major enforcement action to favor a client of their former law firm. 

Wehrum and Harlow, Assistant Administrator and General Counsel respectively for the EPA’s Office of Air and Radiation, were lawyers at the law firm Hunton & Williams before arriving at the EPA.  The firm, and Harlow specifically, represented DTE Energy Company as DTE has been fighting the EPA for nearly a decade over air pollution from the company’s coal-fired power plant in Monroe, MI.  Ethics rules bar EPA officials from participating in matters involving former clients and clients of their firm, but it appears Wehrum and Harlow may have helped persuade the agency to abandon its position.  Their efforts came on the eve of consideration of the lawsuit involving DTE by the Supreme Court.

While the underlying facts and legal arguments in the DTE litigation are complicated, the ethics violations are simple and clear:  federal employees may not participate in particular matters that involve their former clients or employers,” the members write in their letter to the Acting Inspector General.  “[Wehrum and Harlow’s former law firm] Hunton & Williams has represented DTE in the DTE litigation since it started in 2010.  Shortly after Mr. Wehrum and Mr. Harlow arrived at EPA, the agency abandoned its long-standing position and adopted the views of DTE on the legal issue central to the case, which was then pending before the United States Supreme Court.” 

According to emails and other documents reviewed by the lawmakers, Wehrum and Harlow appear to have reviewed and participated in policy discussions relating to a memo changing the EPA’s position on enforcement actions like DTE’s.  Reporting in the Washington Post today confirmed that Wehrum was actively involved in at least one internal meeting discussing the timing and substance of the memo.

The memo was widely understood at EPA to be about the DTE litigation, the memo itself discussed the litigation, and it was issued expressly to affect the Supreme Court’s decision on whether to grant a writ of certiorari,” the members continueThe DTE memo is plainly a substantial decision that had a direct and predictable effect on a particular matter involving a client represented by their former law firm.

The EPA Inspector General would have access to documentation beyond what was available to the senators and the ability to obtain testimony from current EPA employees, all of which could shed light on Wehrum and Harlow’s conduct. 

A PDF of the letter, memo, and exhibits is available HERE.