Democrats Call for Investigation of Top EPA Officials’ Role in Reversing Enforcement Position
Former industry attorneys Wehrum, Harlow appear to have swayed major change in EPA policy in favor of former client DTE
Washington, DC – Senator Sheldon Whitehouse (D-RI), along with Senate Environment and Public Works Committee Ranking Member Tom Carper (D-DE) and House Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ), 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 continue. “The 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.
Full text of the members’ letter to the inspector general and an accompanying memo laying out the facts are below. A PDF of the letter, memo, and exhibits is available here.
Charles J. Sheehan
Acting Inspector General
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
Dear Acting Inspector General Sheehan,
We write to request that the Environmental Protection Agency (EPA) Office of Inspector General (OIG) conduct an investigation into potential violations of the Ethics in Government Act by William Wehrum, Assistant Administrator for the EPA Office of Air and Radiation (OAR), and David Harlow, Senior Counsel in OAR. We are troubled that it appears that Mr. Wehrum and Mr. Harlow may have violated the law and associated regulations given their direct involvement in EPA’s December 7, 2017 memo titled “New Source Review Preconstruction Permitting Requirements: Enforceability and Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability” (“DTE Memo”). The memo disavowed EPA’s position in litigation against DTE Energy Company (“DTE litigation”), a client of Mr. Wehrum’s and Mr. Harlow’s former law firm, Hunton & Williams, and of Mr. Harlow’s himself.
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. 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. 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 DTE memo is a particular matter involving a client represented by their former law firm, and their participation in it was prohibited by the ethics rules.
We believe an OIG investigation is warranted in this case. No other federal agency or component of EPA will be able to fully ascertain whether, and if so, the degree to which, ethics violations have occurred. With respect to Mr. Wehrum, the facts suggest that he may have ignored ethics advice from the Office of General Counsel, which may have resulted in improper conduct. The allegations as to both men are based in large part on heavily redacted documents released by EPA in response to Freedom of Information Act requests. OIG has the authority to review unredacted communications and compel interviews with current EPA employees, both of which will be necessary for a complete investigation. Furthermore, one of your mandates under the Inspector General Act of 1978 is to keep “the Congress fully and currently informed about problems and deficiencies relating to the administration of such programs and operations and the necessity for and progress of corrective action.” We view this request as consistent with that responsibility.
Attached is additional information in support of this request. We respectfully request you give this matter your fullest consideration.
The Ethics In Government Act prohibits Mr. Wehrum and Mr. Harlow from participating in the DTE litigation.
The Ethics in Government Act and associated regulations are designed to prevent the appearance of a conflict of interest when federal officials perform their official duties. “[A]n employee should not participate in a particular matter involving specific parties… in which he knows a person with whom he has a covered relationship is or represents a party [to such a matter], if he determines that a reasonable person with knowledge of the relevant facts would question his impartiality in the matter.” An attorney who enters federal service from a private law firm has a covered relationship with the firm and all its clients, and must recuse himself from matters handled by that law firm for a period of one year.
Mr. Wehrum and Mr. Harlow both left their law practices at Hunton & Williams to take positions at EPA.  Hunton & Williams has represented DTE Energy in the DTE litigation since 2010 and continues to represent them today. Exhibits A and B.
Both Mr. Wehrum and Mr. Harlow were aware of their recusal obligations. The Assistant Administrator for OAR is a Senate-confirmed position. Accordingly, prior to his nomination hearing before the Senate Environment and Public Works Committee, Mr. Wehrum entered into an ethics agreement with EPA acknowledging his responsibility to recuse himself from participating in particular matters involving Hunton & Williams and its clients. This understanding was memorialized in an August 28, 2017 pre-confirmation letter to EPA Designated Agency Ethics Official Kevin Minoli. Exhibit C. That responsibility was confirmed in a recusal statement dated September 17, 2018. Exhibit D.
Mr. Harlow is currently Senior Counsel at OAR. He appears to have been suggested for that position by Mr. Wehrum. Exhibit E. Harlow started work at EPA on October 1, 2017. Exhibit F. Mr. Harlow acknowledged his responsibility not to participate in any particular matters involving Hunton & Williams or its clients in a memo to his supervisor, Mr. Wehrum, on December 28, 2017. Exhibit G.
It is beyond dispute that Mr. Wehrum and Mr. Harlow, in their EPA positions, cannot be involved in the DTE litigation because Hunton & Williams currently represents DTE. With respect to Mr. Wehrum, at the time the DTE memo (Exhibit H) was issued EPA reportedly acknowledged that ethics rules prohibited his participation in its development. Their recusal statements additionally show how closely they are tied to the parties and issues involved in the DTE litigation. Mr. Harlow’s recusal statement lists DTE as a client. Exhibit G. Both of their recusal statements list the Utility Air Regulatory Group (UARG) as a former client.  Exhibits D and G. Mr. Wehrum personally entered an appearance and filed a brief on behalf of UARG in the DTE litigation in support of DTE’s position. Exhibit I. As recently as 2016, it has been reported that DTE Energy self-identified as a member of UARG.
Mr. Wehrum ignored OGC advice and took ten months to finalize and make public his required recusals, including those from particular matters involving Hunton & Williams.
Mr. Wehrum was confirmed by the United States Senate on November 9, 2017. Mr. Wehrum’s first “Certification of Ethics Agreement Compliance” was signed by him and dated December 7, 2017, and then modified on December 19, 2017. Exhibit J. Through this certification, Mr. Wehrum represented that “I am recusing from particular matters in which any former employer or client I served in the past year is a party or represents a party, unless I have been authorized under 5 C.F.R. § 2635.502(d),” and that he had not received any authorizations exempting particular matters from this requirement.
At EPA, recusals are memorialized in “recusal statements” negotiated between career ethics officials and nominees once they are confirmed. While the duty to recuse applies irrespective of whether and when a recusal statement has been signed by an employee, these statements, combined with an employee’s ethics agreement, provide a clear roadmap for other EPA employees, Congress, and the public about an employee’s ethics obligations under the law. Mr. Wehrum’s recusal statement should have been complete when he signed his “Certification of Ethics Agreement Compliance” on December 7, 2017. After multiple inquiries over many months, we learned it was not.
Senator Whitehouse first requested Mr. Wehrum’s recusal statement on February 21, 2018 from ethics officials in EPA’s Office of General Counsel. That request was transferred to the Office of Congressional and Intergovernmental Relations. Senator Whitehouse’s staff repeatedly requested this document on March 16, 2018, March 22, 2018, and April 23, 2018. On April 25, 2018, Senator Whitehouse wrote to Administrator Pruitt requesting this information. Months passed and EPA still did not provide a signed recusal statement from Mr. Wehrum.
On August 19, 2018—over eight months after he certified compliance with his ethics agreement—The New York Times reported that Mr. Wehrum had refused to sign a recusal statement because he claimed that he had received conflicting advice from ethics officials. EPA’s top ethics official Kevin Minoli explained in a September 29, 2018 letter to Senator Whitehouse that Mr. Wehrum was advised pursuant to Office of Government Ethics (OGE) legal advisories that apply to all members of the Trump administration. Exhibit K. Mr. Wehrum also was advised about the “importance of signing a recusal statement” but nevertheless he “chose to use other tools that he deemed effective in helping him comply with the ethics requirements….” Id. (emphasis added.) To date, it remains unclear what that conflicting advice may have been, what recusals and ethics rules Mr. Wehrum followed during this time, and how in the absence of a recusal statement EPA ensured his compliance with all applicable ethics laws and regulations.
To address Mr. Wehrum’s ongoing refusal to sign a recusal statement, Senator Whitehouse filed an amendment to the Blocking Regulatory Interference from Closing Kilns Act of 2018 (BRICK Act) that would have required EPA to disclose the statement. Senator Whitehouse filed his amendment on Friday, September 14, 2018. Two business days later (an hour before a scheduled markup of the BRICK Act by the Environment and Public Works Committee), he finally received a recusal statement signed by Mr. Wehrum on September 17, 2018 and a new “Certification of Ethics Agreement Compliance.” Exhibits D and L. Following those disclosures, Senator Whitehouse asked Acting Administrator Andrew Wheeler for additional information about Mr. Wehrum’s compliance with the terms of his recusals, but as of the date of this letter he has not yet received a response.
DTE has been represented by Wehrum’s and Harlow’s former law firm in the DTE litigation since 2010.
In August 2010, EPA, represented by the Department of Justice, filed an enforcement action against DTE, alleging Clean Air Act violations by DTE at its Monroe facility, the largest coal-fired power plant in Michigan. EPA claimed DTE failed to acquire the necessary permit before undertaking significant modifications at the plant and stated that had DTE sought that permit it would have been required to install modern pollution controls and dramatically cut its pollution. The government’s case was based on the New Source Review (“NSR”) provisions of the Clean Air Act. NSR is designed to require facilities to upgrade their pollution controls when they upgrade their plants. Hunton & Williams represented DTE in this case.
DTE vigorously contested the enforcement case, which made two trips to the 6th Circuit Court of Appeals during the next eight years. During the first appeal in 2013 (“DTE I”), in which EPA prevailed, the circuit court noted that “whether a permit is ultimately required is a high stakes determination.” The Court found the modern pollution controls that would be required if EPA prevailed would reduce pollution by over 90%, but would also be very expensive; DTE claimed these upgrades would cost DTE about $1.7 billion.
The second decision by the Sixth Circuit (“DTE II”) was issued on January 10, 2017, again siding with EPA. The Court stated that although DTE upgraded its pollution control equipment while the enforcement case against it was pending, “if [DTE] is found to have violated the Act, DTE still could face monetary penalties and be required to mitigate excess emissions caused by the delay in installing pollution controls.” Facing potentially millions of dollars of penalties and mitigation, DTE filed a petition for a writ of certiorari (“DTE cert petition”) on July 31, 2017, asking the United States Supreme Court to reverse the decision of the Court of Appeals.
The DTE cert petition filed by Hunton & Williams was pending before the Supreme Court in the fall of 2017 when Mr. Harlow and Mr. Wehrum left Hunton & Williams and started working at EPA. After the Supreme Court denied certiorari on December 11, 2017, the case was remanded back to the Eastern District of Michigan, where counsel for Hunton & Williams continue to represent it. Exhibit A. The litigation has been stayed pending settlement negotiations since February 2018. Id.
EPA’s December 7, 2017 memo was expressly about the DTE litigation.
The central issue in the DTE enforcement litigation was DTE’s failure to seek an NSR permit before undertaking modifications at the Monroe coal-fired power plant, thereby avoiding required upgrades of pollution control equipment. EPA argued that DTE failed to do the appropriate calculations of projected “before” and “after” pollution emissions and that proper calculations show an NSR permit was required. DTE argued that it could do those calculations a different way, resulting in an NSR permit not being required, and that EPA was not allowed to “second guess” DTE’s calculations. In May 2017, while Mr. Wehrum and Mr. Harlow were still at Hunton & Williams, the firm began lobbying EPA to change the rule, specifically citing DTE’s 6th Circuit litigation. Exhibit MM (at pp. 16-17 and fn. 37).
From 2010 to 2017, EPA took the same position throughout the DTE case, prevailing twice before the Court of Appeals. DTE’s cert petition asked the Supreme Court to tell EPA that its long-standing position was wrong. With Wehrum and Harlow now ensconced at EPA, the agency reversed itself, and decided that in fact it now agreed with DTE.
On December 7, 2017, EPA issued a memo under Administrator Scott Pruitt’s signature reversing EPA’s long-standing position. While the DTE Memo announces a generally applicable change in EPA’s enforcement position, it is replete with references to the pending DTE litigation and why EPA’s position in that litigation was wrong. It also specifically acknowledges the pendency of DTE’s cert petition:
The matters at issue in the DTE litigation are complex, and the appellate court decisions have left ambiguity regarding the scope of the applicable regulations and what sources must do to comply. Further, the Supreme Court has been asked to review the second appellate court opinion. Considering this uncertainty, the EPA believes it would be helpful to explain to stakeholders how the EPA plans to proceed in implementing and exercising its authority under those regulations pending further review of these issues by the EPA.
Thus, pending further review of these issues by the courts and the EPA, the agency does not intend to pursue new enforcement cases in circumstances such as those presented in the DTE matter.
Exhibit H. In addition to what the DTE Memo itself says, EPA internal discussion of the DTE memo shows widespread understanding across EPA that the memo is about the DTE case. Exhibits P, W, BB, CC and DD. And according to Mr. Wehrum’s schedule, the same day the DTE Memo was released he gave a speech at Hunton & Williams. Exhibit NN.
The DTE Memo was timed to forestall a decision by the Supreme Court in the DTE litigation.
EPA’s new DTE Memo was released late in the evening of December 7, 2017, the day before the Supreme Court was set to consider DTE’s certiorari petition at its December 8, 2017 conference. Internal EPA emails produced in response to a FOIA request reveal that there were two constraints on the timing for the release of the DTE Memo: avoid releasing it before Administrator Scott Pruitt was done testifying before the House Energy and Commerce Committee on December 7, but get it out in advance of the Supreme Court’s consideration of the DTE cert petition the morning of December 8, 2017.
- December 4, 2017 email from Mandy Gunasekara to Susan Bodine and Patrick Traylor: “Attached is the latest version of the NSR Memo [DTE Memo] pertaining to the issues at issue in the DTE case. I thought we may have more time, but know now that the cert hearing is planned for Wednesday. This memo needs to go out before.” Exhibit M.
- December 7, 2017 email from Mandy Gunasekara attaching the final version of the DTE Memo “discussed with the Administrator yesterday” and stating that “he would like to get this out today.” Exhibit N.
- December 7, 2017 email from Mandy Gunasekara to Josh Lewis entitled “re: Signed NSR memo”: “Hold tight until after the energy and comment [sic] hearing. Please have this ready for posting online once the hearing wraps up.” Exhibit O.
The DTE Memo was posted on EPA’s web page sometime during the evening on December 7, 2017. Early on December 8th, the day of the Supreme Court conference on the DTE cert petition, Hunton & Williams sent a letter to the Supreme Court attaching the DTE Memo. Exhibit P.
Mr. Wehrum and Mr. Harlow were directly involved in the DTE Memo.
Mr. Wehrum was involved in the DTE Memo before and after it was issued, contradicting EPA’s statement to the media that he was not. The documents show that at minimum he participated in a meeting about the memo on December 5 – two days before the memo was released – and it appears he had additional communications about the memo before its release late on December 7, 2017.
- The DTE Memo “redacted version” was sent to Mr. Wehrum and Mr. Harlow by Mandy Gunasekara on December 5. Exhibit Q.
- An email from Brian Doster (OGC) on December 5, 2017 said that there is a “late-breaking” meeting with Mr. Wehrum that day on NSR. The topics for the meeting are redacted. 19 people are listed on the invite to the meeting, and 3 people from the Office of Enforcement and Compliance Assurance are copied. The date, the invitees, and the context of prior conversations about the memo suggest that this meeting with Wehrum includes discussion of the DTE Memo. Exhibit R. The New York Times reported that the DTE Memo was discussed with Mr. Wehrum during a meeting on Dec. 5.
- Susan Bodine copied Mr. Wehrum on her email to Ms. Gunasekara on December 7, 2017, in which she appears to be seeking changes to the DTE Memo before it is released. The content of this email is redacted. Exhibit S.
- Ms. Bodine sent a second email to Ms. Gunasekara on the DTE Memo on December 7, 2017, also copying Mr. Wehrum, in which Ms. Bodine appears to continue to press for changes. Exhibit S.
- Ms. Bodine copied Mr. Wehrum on another email on December 8, 2017 in which she says she talked to “SP” [apparently a reference to Scott Pruitt] about the memo. The content of that email is redacted. Exhibit T.
- Mr. Wehrum was a required participant in a December 11, 2017 conference call about the “NSR Memo.” Exhibit U.
The emails from Ms. Bodine suggest that she was not pleased with the contents of the DTE Memo. Copying Mr. Wehrum on these emails further suggests he was substantively involved in its development.
Other evidence shows that Mr. Wehrum and others at EPA knew that he should be recused from involvement in the DTE Memo and in some communications attempted to maintain the fiction that he was abiding by that recusal.
- Email to Mr. Wehrum from Ms. Gunasekara on December 5, 2017, attaching a version of the DTE Memo and stating that “I have redacted the potentially offending language given your recusal issues....” Exhibit Q.
- Email from Ms. Gunasekara to Ryan Jackson (Chief of Staff to the Administrator) attaching the DTE Memo for Mr. Jackson to send out to the Regional Administrators. She advised Jackson to “please cc me (since Bill is recused).” Exhibit V.
Notably, in Mr. Wehrum’s September 2018 recusal statement, Ms. Gunasekara is identified as one of two people (along with Josh Lewis) responsible for screening matters related to those listed on his recusal statement, “without [his] knowledge or involvement until after [his] recusal period ends.” Exhibit D. The documents suggest that at this time, a month into Mr. Wehrum’s tenure at EPA, the process had not been communicated to others and/or was not effectively screening matters from Mr. Wehrum’s review.
Mr. Harlow was also involved in the DTE Memo before it was issued. He was sent copies of the draft memo, starting just days after he left Hunton & Williams, where he represented DTE, and started work at EPA.
- Alex Dominguez sent Mr. Harlow the draft DTE Memo on October 6, 2017. Exhibit W.
- Ms. Gunasekara sent Mr. Harlow the DTE memo on November 27, 2017. Exhibit X.
- Ms. Gunasekara sent Mr. Harlow and Mr. Wehrum a “redacted” version of the DTE memo on December 5, 2017. Exhibit Q.
- Mr. Harlow was included on the list of invitees to the December 5, 2017 meeting. Exhibit R.
- Mr. Harlow was a required participant in a December 11, 2017 conference call about the “NSR Memo.” Exhibit U.
Mr. Harlow’s recusal statement, which is in the form of a memo he submitted to Mr. Wehrum on December 28, 2017, identifies Ms. Gunasekara and Mr. Lewis as those responsible for screening matters from which he should be recused. Exhibit G.
An OIG investigation can readily confirm the facts laid out here demonstrating that Mr. Wehrum and Mr. Harlow violated federal ethics rules.
Publicly available information strongly indicates that Mr. Wehrum and Mr. Harlow were involved in the issuance of EPA’s December 7, 2017 DTE memo, despite the fact that the memo was part of a particular matter involving specific parties from which they were required to recuse themselves, and that with respect to Mr. Wehrum, EPA publicly stated he had been recused from its development. The memo was about the DTE litigation and was timed to affect a critical decision by the Supreme Court in the case.
Ample evidence is available to OIG to further investigate this matter. Further details about email correspondence and meetings in the days leading up to the issuance of the memo would be an obvious source of information. Redacted emails indicate a robust internal debate, possibly pitting the Assistant Administrator for EPA's Office of Enforcement and Compliance Assurance Susan Bodine with Mr. Wehrum’s Office of Air and Radiation, including Mr. Wehrum himself right until the memo was issued. A review of the unredacted emails and the documents references in them are likely to shed light on Mr. Wehrum’s and Mr. Harlow’s substantive involvement in the DTE memo. Their participation can also be confirmed by interviews with other EPA staff, including those addressed in the emails and those who attended the December 5, 2017 NSR meeting.
The reference to a “redacted” version of the DTE Memo sent to Mr. Wehrum and Mr. Harlow on December 5, 2017, suggests a transparent attempt to circumvent Wehrum’s and Harlow’s recusals, aided by those responsible for policing those very recusals. The redacted version has not been publicly provided, but it is hard to see what could be redacted in a memo to work around the fact that the memo was about the DTE litigation, that the DTE litigation was handled by their former law firm, and that both Wehrum and Harlow knew it.
If an OIG investigation confirms the facts as set forth above, that would mean two senior EPA officials were involved in litigation brought on behalf of EPA where the defendant was represented by their former firm. EPA has released heavily redacted documents after months of requests that make that conclusion almost inevitable. This would be a serious violation of the letter and the intent of federal ethics rules. As of result of the DTE memo and EPA’s reversal of its long-standing position, a current client of Hunton & Williams may be in a position to reap a multi-million dollar windfall. EPA OIG is in the best position to look behind the redactions and to interview key staff under penalty of perjury to get to the bottom of this matter.
Bolded documents were heavily redacted in the FOIA response and appear likely to be relevant in unredacted form.
9/8/17 Scott Pruitt meets with Mandy Gunasekara, Susan Bodine, Patrick Traylor and others about several enforcement matters, including DTE. Exhibit Y.
9/12/17 “Following up from Friday” Gunasekara sends a few points “regarding the NSR memo I mentioned” to Josh Lewis and Sarah Dunham, two employees in the front office of OAR. The referenced document “Emissions Projection Rule outline DRAFT” was not produced in the FOIA response. Exhibit Z.
9/22/17 Outline sent to Susan Bodine by Gunasekara. Exhibit AA.
10/3/17 Internal OAR description of “ongoing issues” lists “NSR DTE memo – deliver draft memo on DTE by end of Sept/early Oct.” Exhibit BB.
10/4/17 Brian Doster (career attorney in OGC) sends his supervisors (Justin Schwab, Lorie Schmidt, and Gautam Srinivasan) an email “re: Memos related to DTE NSR case,” attaching two draft “memos regarding the issues in the DTE NSR litigation:” a draft of the DTE Memo, plus an OGC “companion memo” identifying some points to consider in evaluating the options, and the outline prepared by Gunasekara on 9/12/17. The email is heavily redacted, and the referenced documents were not produced in the FOIA response. Exhibit CC.
10/5/17 Josh Lewis sends the draft DTE Memo to Gunasekara, cc Alex Dominguez and Sarah Dunham, along with an OGC “analysis of options for addressing NSR issues raised by DTE.” The email is heavily redacted but mentions that the draft was reviewed by OGC staff attorneys but that “thus far OECA and regional offices have not been engaged.” The referenced attachments were not produced in the FOIA response. Exhibit DD.
10/6/17 Alex Dominguez forwards both memos to David Harlow. The referenced memos were not produced in the FOIA response. Exhibit W.
10/25/17 Patrick Traylor asks Gunasekara for a copy of the draft DTE Memo indicating that he has not yet seen it; she sends it to him, copying Susan Bodine. Exhibit EE.
11/17/17 Meeting with Scott Pruitt on New Source Review with Bill Wehrum, Mandy Gunasekara, Ryan Jackson, Samantha Dravis and Lincoln Ferguson. Exhibit FF.
11/27/17 Gunasekara sends the draft DTE Memo to Harlow with the note “first one attached,” implying that there had been a conversation between them on the subject before she sent the memo. Exhibit X. The referenced memo was not produced with the FOIA response.
11/30/17 Gunasekara represents EPA at Hunton & Williams on a panel discussion titled “Which Way Does the Wind Blow: Priorities and Developments in Air Quality and Climate Change”. Exhibit GG.
12/4/17 Gunasekara sends “the latest version” of the “NSR memo pertaining to the issues at issue in the DTE case” to Susan Bodine and Patrick Traylor, cc to Ryan Jackson, Samantha Dravis and Justin Schwab. She specifically notes that “I thought we may have more time, but know now that the cert hearing is planned for Wednesday. This memo needs to go out before.” Exhibit M. In other versions of this same email included in the FOIA response, the reference to having to get the memo out before the Supreme Court conference is redacted as “deliberative.” The referenced attached memo was not produced with the FOIA response.
Patrick Traylor and Susan Bodine request a meeting that day and a scheduler is sent by Traylor to Gunasekara, Susan Bodine, and Justin Schwab for a meeting at 6 pm. Exhibit HH.
12/5/17 Gunasekara sends the DTE Memo to Lincoln Ferguson for “SP review.” Exhibit II.
Gunasekara sends Wehrum and Harlow a “redacted” version of the DTE Memo for “tomorrow’s” meeting, cc Alex Dominguez and Justin Schwab. She says, “I have redacted the potentially offending language given your recusal issues.” The redacted memo was not produced in the FOIA response. Exhibit Q.
Brian Doster sends an email to others in OGC re: Meeting today with Wehrum on NSR – May address [redacted], informing them of a “late breaking” meeting that same day with Bill Wehrum. There are multiple redactions in the email, but it appears that the DTE Memo is one of the topics expected to be included in the discussion. Many people are invited to the meeting scheduled by Bill Wehrum, including Mandy Gunasekara, David Harlow, Susan Bodine, Patrick Traylor and Josh Lewis, cc Phillip Brooks, Apple Chapman, Rosemarie Kelley and Justin Schwab. Exhibit R.
12/6/17 OGC sends edits to the DTE Memo to Gunasekara at 10:24 pm. The email is redacted and the referenced document containing the suggested edits was not produced in the FOIA response. Exhibit JJ.
12/7/17 Gunasekara sends the “final” DTE memo to unnamed people at 10:15 am, saying she “discussed it with the Administrator yesterday. He would like to get this out today.” Exhibit N. The referenced attached memo was not produced in the FOIA response.
Gunasekara sends the “final” memo to Susan Bodine at 12:06. The contents of Gunasekara’s email are redacted. Susan Bodine immediately responds (with label “Importance: High”) to Gunasekara, copying Bill Wehrum, Justin Schwab and Patrick Traylor. The entire contents of Bodine’s email are redacted. Bodine sends another email to the same people at 5:24 saying “at minimum the first two of the three sentences…” (remainder redacted). Exhibit S.
Bill Wehrum meets with OGE Ethics officials at 2:00. Exhibit NN.
At 3:00, Bill Wehrum gives a speech at his former law firm Hunton & Williams on “rules affecting electric generating companies and other stationary sources. Exhibit NN.
Justin Schwab sends Gunasekara an email at 4:52 pm “expanding on some of the comments on the draft” in an email with the subject “NSR memo – general OGC thoughts on legal risk” copying Susan Bodine and Patrick Traylor. The entire 2-page email is redacted. Exhibit KK.
Liz Bowman (from the press office) emails Gunasekara and Ryan Jackson a draft desk statement titled “Dec. 7 DTE/NSR Memo.” The draft desk statement is redacted. Exhibit LL.
The final memo is auto penned and forwarded to Gunasekara and Ryan Jackson. At 5:36, Gunasekara directs Josh Lewis to “hold tight until after the energy and comment [sic] hearing. Please have this ready for posting online once the hearing wraps up.” Exhibit O.
At 6:09 Josh Lewis replies “Got it, and will do.” Exhibit O.
At 10:57 pm Gunasekara sends the memo to Ryan Jackson and says that when he sends it to the Regional Administrators he should “cc me (since Bill is recused).” Exhibit V.
12/8/17 Hunton & Williams sends the DTE Memo to the Supreme Court in advance of the Court’s conference about the DTE cert petition. Exhibit P.
Susan Bodine emails Wehrum and Gunasekara, cc Patrick Traylor “re: NSR memo” that she “spoke to SP about….” The remainder of the email is redacted, except for “he suggested…” and “my suggestion remains…” Exhibit T.
People with relevant information
A review of the publicly available documents suggests that the following EPA employees may have information related to this matter:
Office of Air and Radiation
Bill Wehrum, David Harlow, Mandy Gunasekara, Alex Dominguez, Josh Lewis and Sarah Dunham
Office of General Counsel
Justin Schwab, Lorie Schmidt, Gautam Srinivasan and Brian Doster
OGC ethics attorneys, re whether they were consulted about the need for Wehrum and Harlow to recuse from the DTE Memo and if so, were they provided the necessary facts that are outlined in this request
Office of Enforcement and Compliance Assurance
Susan Bodine, Patrick Traylor, Rosemarie Kelley, Phillip Brooks and Apple Chapman
 5 U.S.C. (IG Act) App. § 2(3)
 5 C.F.R. § 2635.502(a)
 Id. at 502(b)(iv). See also Office of Government Ethics, “Conflicts of Interest Considerations: Law Firm or Consulting Employment,” (June 22, 2018) available at https://www.oge.gov/web/OGE.nsf/0/53BE4061E9EFDEB4852582B400626DAA/$FILE/Law%20Firm%20or%20Consulting%20Employment.pdf. While an employee may seek authorization from the agency to participate in a particular matter notwithstanding the conflict, neither Mr. Wehrum nor Mr. Harlow appear to have received any such authorization here.
 Hunton & Williams is now Hunton, Andrews and Kurth.
 Timothy Cama, “EPA works to ease air pollution permitting process,” The Hill, Dec. 8, 2017, (“[T]he agency said Wehrum was not involved in Thursday’s memo, having recused himself because his former law firm, Hunton & Williams, represents DTE in the litigation.”) available at https://thehill.com/policy/energy-environment/364015-epa-works-to-ease-air-pollution-permitting-process.
 UARG is not an incorporated entity and does not appear to have a staff, physical location, or presence of any sort outside of Hunton & Williams. Its membership and decision-making processes appear opaque, and it has been described as “a front group of convenience [that] allows individual electric utility companies to shield their names and anti-public health crusades from public awareness.” John Walke, “Is Your Power Company Fighting in Court Against Safeguards From Mercury and Toxic Air Pollution?” NRDC, May 25, 2012, available at https://www.nrdc.org/experts/john-walke/your-power-company-fighting-court-against-safeguards-mercury-and-toxic-air.
 Annalee Armstrong, “Power companies wield influence through anonymous group,” S&P Global, July 19, 2016 available at https://www.snl.com/web/client?auth=inherit#news/article?id=37072675&cdid=A-37072675-13095
 The form also requires the signer to acknowledge that knows that any intentionally false or misleading statement or response provided in the Certification is a violation of law.
 Eric Lipton, “As Trump Dismantles Clean Air Rules, an Industry Lawyer Delivers for Ex-Clients,” New York Times, August 19 2018, available at https://www.nytimes.com/2018/08/19/us/politics/epa-coal-emissions-standards-william-wehrum.html
 In this letter Mr. Minoli also reaffirmed that Mr. Wehrum had not been granted any authorizations to the impartiality requirements of OGE regulations.
 711 F.3d 643, 647 (6th Cir. 2013)
 845 F.3d 735 (6th Cir. 2017)
 Id. at 737 fn. 2
 “DTE Initiates Last-Ditch Effort in Clean Air Act Case,” RTOInsider, August 8, 2017. https://www.rtoinsider.com/dte-energy-supreme-court-clean-air-act-47428/
 “New US EPA Memorandum Suggests a Hand’s-Off Approach to NSR Applicability Determinations,” Fresh Law Blog from the law firm of Squire Patton Boggs, December 18, 2017, available at https://www.freshlawblog.com/2017/12/18/new-us-epa-memorandum-suggests-a-hands-off-approach-to-nsr-applicability-determinations/, which includes a section titled, “U.S. EPA Adopts DTE’s Position.”
 Right before giving that speech, Wehrum met with EPA ethics officials. Id.
 The email erroneously refers to the Supreme Court conference as a “hearing” and also misstates the day of the conference: it was scheduled for Friday (December 8), not Wednesday, of that week.
 The Supreme Court ultimately denied the DTE cert petition and the EPA enforcement case is still pending, albeit in a situation where EPA has announced that its own position in the litigation is wrong.
 Lipton, supra note 9.
Next Article Previous Article