WORC Pushes Ahead with Lawsuit To Expose Coal Trade Group Masquerading as Federal Committee

The National Coal Council evaded accountability, skirted federal transparency law, and functioned as a self-dealing industry trade association during the Trump administration.

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Update 11/23/2021: The Department of Energy sent a letter to the National Coal Council announcing that they will not be renewing the Council’s charter. DOE’s Jennifer Wilcox, Principal Deputy Assistant Secretary wrote, “the Department is in the process of submitting a new charter, revised to reflect matters currently faced by the coal industry, workers, and communities, including priorities established by the Energy Act of 2020 as well as the Bipartisan Infrastructure Law enacted this week, and to generally modernize the advisory committee.”

While that seems like a step in the right direction, we’ll be watching closely to make sure that the new charter will fulfill its legal obligation to keep its materials and recommendations transparent to the public and be balanced with members who represent landowner, taxpayer, environmental, and public health interests. “It’s vital that people and communities impacted by the coal industry have a voice on this advisory council,” said Bob LeResche, Powder River Basin Resource Council and WORC board member.

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On October 20th, 2021, the Western Organization of Resource Councils (WORC), represented by Democracy Forward and Earthjustice Senior Attorney Shiloh Hernandez, pressed ahead with our lawsuit challenging the National Coal Council’s (NCC) refusal to allow public access to its work during the Trump administration. In the filing, we demonstrate how the NCC functioned as an opaque channel for official policy advice between the coal industry and the Department of Energy, in violation of the Federal Advisory Committee Act (FACA) and to the detriment of people harmed by the extraction, processing, or combustion of coal.

WORC urged the court to compel the NCC to comply with FACA’s requirements and open the Council’s work to the public by disclosing its materials from 2017 through 2020.

Trump’s National Coal Council

The NCC is a federally chartered advisory committee that makes recommendations to the Department of Energy on federal policy related to coal. It’s composed of two identities that are functionally identical: the NCC itself, and “NCC Inc.,” a 501(c)(6) not-for-profit corporation that is the NCC’s corporate alter ego. Both entities are stacked with identical coal industry representatives and non-industry coal supporters. Under President Trump, the NCC worked exclusively to advance the coal industry’s economic interests, and it did so behind closed doors. From 2017 to 2020, the Department of Energy refused to grant the public access to NCC, Inc.’s materials and meetings.

The Department also refused to grant public access to the NCC’s subcommittees, despite the subcommittees drafting all of the NCC’s recommendations for the Department and simply presenting them to the NCC for a rubber stamp. Each of the four reports drafted between 2017 and 2020 advocated for the federal government to use its power to expand the production and/or consumption of coal. The Council had neither the representation nor the transparency required by FACA to maintain “objective and accessible to the public“.

“The Department of Energy needs to end the National Coal Council’s unethical influence over national energy policy. The industry representatives who make up the council operate without public scrutiny and push an agenda that lines their own pockets. It’s time to expose this shadowy practice and show the American public the full extent of the Council’s efforts to prolong schemes to prop up the coal industry at everyone else’s expense, including electricity ratepayers, coal mine neighbors, landowners, and ranchers who live with the impact of coal mining.”
Bob LeResche, Powder River Basin Resource Council and WORC Board Member from Clearmont, Wyoming

Shining light on the NCC

WORC filed suit in October 2020 after the NCC refused WORC’s request to comply with federal transparency law by disclosing materials the Council had produced since 2017. On April 6, 2020, the court denied the defendants’ attempt to dismiss the case. The court concluded that WORC had plausibly alleged that “NCC, Inc. operates as a federal advisory committee under FACA,” that “DOE does not maintain a passive role in NCC, Inc.’s operation,” and that “the development of [the NCC’s] reports occurs largely behind closed doors in meetings of Council subcommittees.”

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Records obtained in the course of this litigation demonstrate the remarkable extent to which the NCC during this period was merely a vehicle for the coal industry. NCC and NCC Inc. officials repeatedly stated that the Department appointing more NCC members would help to fill NCC Inc.’s coffers. The NCC was also advised that: “No concessions to the environmental lobby are in your best interest,” and a Council leader noted that its “single most important priority” was “to preserve and rejuvenate the existing coal fleet.”

Other specific examples found include:

The Chairman of an NCC subcommittee admitted that while the NCC seeks to give the DOE the advice it seeks, the NCC has a parallel goal of, “at the same time, serving our own strategic objectives.”
NCC speakers exhibit pro-coal biases, with occasional open bashing of counter perspectives coming from the conservation community or those with differing political views. For instance, a speaker at a NCC event in 2018 remarked, “[I]magine where we would be if we were a year and three months into the Hillary Clinton Administration.”
In an almost comical example of the pro-coal sentiment of the NCC, the Director of the National Energy Technology Laboratory at the time, Grace Bochenek, led NCC meeting attendees in a “COAL” cheer.

“In practice, the National Coal Council is simultaneously a corporate lobbying group and a government entity, enjoying the privileges of each while avoiding meaningful public scrutiny. The result is a government-sanctioned group who consistently puts the interests of coal executives and shareholders above the concerns of landowners, taxpayers, public health, and the environment. We need full transparency from the National Coal Council in all of its forms and factions as we begin the critical work of reforming federal coal policies to address the challenges of a changing energy market and an ever-accelerating climate crisis.”
Steve Charter, a board member of Northern Plains Resource Council and WORC who ranches above an underground mine in Montana’s Bull Mountains

Request for summary judgment

WORC’s current request for summary Judgement intends to force the National Coal Council, its alter-ego, and its subcommittees to comply with federal law and disclose the work they unlawfully obscured in the prior administration. These records may show the depths of corporate influence pedaled by the NCC as well as connect that influence to pro-coal policies that have been illegally enacted through this influence.

“The National Coal Council flouted federal transparency law throughout the last administration. With one hand, the Council sought to stamp a private trade association with the federal government’s imprimatur; with the other, it tried to shield the trade association’s work from the public eye. We’re continuing our legal fight to ensure the Council, the Corporation, and the Council’s subcommittees comply with federal law and disclose the work they unlawfully obscured.”
Democracy Forward Senior Counsel and Legal Policy Director Aman George