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Working so closely their roles blur

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The letter to the Environmental Protection Agency from Attorney General Scott Pruitt of Oklahoma carried a blunt accusation: Federal regulators were grossly overestimating the amount of air pollution caused by energy companies drilling new natural gas wells in his state.

But Pruitt left out one critical point. The three-page letter was written by lawyers for Devon Energy, one of Oklahoma’s biggest oil and gas companies, and was delivered to him by Devon’s chief of lobbying.

"Outstanding!" William F. Whitsitt, who at the time directed government relations at the company, said in a note to Pruitt’s office. The attorney general’s staff had taken Devon’s draft, copied it onto state government stationery with only a few word changes, and sent it to Washington with the attorney general’s signature. "The timing of the letter is great, given our meeting this Friday with both EPA and the White House."

Whitsitt then added, "Please pass along Devon’s thanks to Attorney General Pruitt."

The email exchange from October 2011, obtained through an open-records request, offers a hint of the unprecedented, secretive alliance that Pruitt and other Republican attorneys general have formed with some of the nation’s top energy producers to push back against President Barack Obama’s regulatory agenda, an investigation by The New York Times has found.

Attorneys general in at least a dozen states are working with energy companies and other corporate interests, which in turn are providing them with record amounts of money for their political campaigns, including at least $16 million this year.

The Times reported previously how individual attorneys general have shut down investigations, changed policies or agreed to more corporate-friendly settlement terms after intervention by lobbyists and lawyers, many of whom are also campaign benefactors.

But the attorneys general are also working collectively. Democrats for more than a decade have teamed up with environmental groups such as the Sierra Club to use the court system to impose stricter regulation. But never before have attorneys general joined on this scale with corporate interests to challenge Washington and file lawsuits in federal court.

Out of public view, corporate representatives and attorneys general are coordinating legal strategy and other efforts to fight federal regulations, according to a review of thousands of emails and court documents and dozens of interviews.

"When you use a public office, pretty shamelessly, to vouch for a private party with substantial financial interest without the disclosure of the true authorship, that is a dangerous practice," said David B. Frohnmayer, a Republican who served a decade as attorney general in Oregon. "The puppeteer behind the stage is pulling strings, and you can’t see. I don’t like that. And when it is exposed, it makes you feel used."

For Pruitt, the benefits have been clear. Lobbyists and company officials have been notably solicitous, helping him raise his profile as president for two years of the Republican Attorneys General Association, a post he used to help start what he and allies called the Rule of Law campaign, which was intended to push back against Washington.

Pruitt has responded aggressively, and with a lot of helping hands. Energy industry lobbyists drafted letters for him to send to the EPA, the Interior Department, the Office of Management and Budget and even Obama, The Times found.

Industries he regulates have also joined him as plaintiffs in court challenges, a departure from the usual role of the state attorney general, who traditionally sues companies to force compliance with state law.

Energy industry lobbyists have also distributed draft legislation to attorneys general and asked them to help push it through state legislatures to give the attorneys general clearer authority to challenge the Obama regulatory agenda, the documents show.

"It is quite new," said Paul Nolette, a political-science professor at Marquette University in Milwaukee and the author of the forthcoming book "Federalism on Trial: State Attorneys General and National Policy Making in Contemporary America." "The scope, size and tenor of these collaborations is, without question, unprecedented."

And it is an emerging practice that several former attorneys general say threatens the integrity of the office.

Pruitt, who has emerged as a hero to conservative activists, dismissed this criticism as misinformed.

"Those kinds of questions arise from the environment we are in – a very dysfunctional, distrustful political environment," Pruitt said in an interview. "I can say to you that is not who we are or have ever been, and despite those criticisms we sit around and make decisions about what is right, and what represents adherence to the rule of law, and we seek to advance that and try to do the best we can to educate people about our viewpoint."

A Potent Ally

Energy industry executives and lobbyists from across the United States saw great potential in Pruitt, a gifted politician who had been a state legislator and a minor-league baseball team co-owner and executive before running for attorney general.

Among them was Andrew P. Miller, a patrician 81-year-old former Virginia attorney general. Miller is a regular at gatherings of state attorneys general at resort destinations, and his client list includes TransCanada, the backer of the Keystone XL pipeline; Southern Co., the Georgia-based electric utility, which has a large number of coal-burning power plants; and the investor group behind the proposed Pebble Mine in Alaska.

Among Pruitt’s first acts was to create a "federalism office," which challenged the Obama administration’s plan to reduce haze in southwestern Oklahoma by requiring coal-burning electricity plants in the state to install new pollution control equipment.

Miller made it his job to promote Pruitt nationally, both as a spokesman for the Rule of Law campaign and as the president of the Republican Attorneys General Association.

Miller’s pitch to Pruitt became a reality early last year at the historic Skirvin Hilton Hotel in Oklahoma City, where he brought together an extraordinary assembly of energy industry power brokers and attorneys general from nine states for what he called the Summit on Federalism and the Future of Fossil Fuels.

The meeting took place in the shadow of office towers that dominate Oklahoma City’s skyline and are home to Continental Resources, a leader in the nation’s fastest-growing oil field, the Bakken formation of North Dakota, as well as Devon Energy, which drilled 1,275 new wells last year.

More liberal attorneys general, such as Douglas F. Gansler, D-Md., were explicitly excluded.

Oklahoma energy companies were there, according to an agenda, joined by executives from Peabody Energy of Missouri, the world’s largest private-sector coal producer, as well as Southern Co., which has aggressively challenged federal air pollution mandates.

The nation’s top corporate energy regulatory lawyers were there, too, including F. William Brownell, a senior partner at the law firm Hunton & Williams, which has spent more than 25 years fighting the enforcement of the Clean Air Act.

A ‘Strike Force’

The impact of the gathering was immediate. A week later, a new Federalism in Environmental Policy task force was established by lawyers in the offices of 19 state attorneys general, according to email records obtained from the office of Attorney General Timothy C. Fox of Montana, who had participated in the Oklahoma meeting.

Miller was pleased. "Just the kind of strike force I was talking about," he said in an interview.

And the input poured forth. The states worked to detail major federal environmental action, like efforts to curb fish kills, reduce ozone pollution, slow climate change and tighten regulation of coal ash. Then they identified which attorney general’s office was best positioned to try to monitor it and, if necessary, attempt to block it.

Follow-up by Pruitt’s federalism office often came after coordination with industry representatives, especially from Devon Energy. The company, one of the most important financial supporters for the Republican Attorneys General Association, is guarded about its public profile. But it readily turned to Pruitt and his staff for help, setting up meetings for the attorney general with its chief executive, its chief lobbyist and other important players.

"We have a clear obligation to our shareholders and others to be involved in these discussions," John Porretto, a Devon spokesman, said in a statement.

While some of the exchanges were general in character, others were quite explicit, especially the communication about the EPA’s methane regulations that had prompted Whitsitt, the Devon official, to propose that Pruitt send a letter to the agency.

"Just a note to pass along the electronic version of the draft letter to Lisa Jackson at EPA," said one September 2011 letter to Pruitt’s chief of staff from Whitsitt. "We have no pride of authorship, so whatever you do on this is fine."

Pruitt took the letter and, after changing just 37 words in the 1,016-word draft, copied it onto his state government letterhead and sent it to Jackson, the EPA administrator.

That was just one of his challenges to Washington. Devon officials also turned to Pruitt to enlist other Republican attorneys general and Republican governors to oppose a rule proposed by the Bureau of Land Management that would regulate hydraulic fracturing, or fracking, on federal land.

Pruitt’s office, in a statement to The Times, rejected any suggestion that the attorney general has been wrong to send to Washington comment letters written by industry lobbyists, or to take up their side in litigation.

"The AG’s office seeks input from the energy industry to determine real-life harm stemming from proposed federal regulations or actions," the statement said. "It is the content of the request not the source of the request that is relevant."

Eric Lipton, New York Times

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