A pro-coal group that has appeared in multiple Ohio wind farm cases has not disclosed its members, raising questions about who funds the nonprofit organization and what relationship it might have to other parties.
The Campaign for American Affordable and Reliable Energy (CAARE) has been added to the service list in ten wind energy matters at the Ohio Power Siting Board. As a result, its lawyers would formally receive copies of all filings.
The group formally sought to become a party in only one of those cases, involving the Paulding Wind Farm. An administrative law judge denied that request because the group’s interest was “nothing more than objections to wind farms generally.” In two other cases, the same lawyers for CAARE later went on to represent individuals opposed to the projects.
Counsel for CAARE would not discuss any of the cases.
“I act as legal counsel for intervenors and such, but I’m not authorized to speak to the press about anything, so I can’t,” said John Stock at the Columbus office of Benesch Friedlander Coplan & Aranoff. “That’s just been the policy from day one, so don’t take it personally.”
Stock likewise would not provide contact information for any member or officer of CAARE. And while the one filing that sought party status for the group said CAARE’s members were companies in the coal industry, it did not say who any of them were.
There is no claim of illegal or unethical conduct by CAARE or its lawyers. Nonetheless, advocates say, the secrecy raises questions about transparency. Counsel for CAARE has represented other pro-coal interests and has represented landowners opposed to wind projects in at least one other state.
“Ohioans deserve to know who the secretive coal interests behind CAARE are, so they can properly assess the impact these companies and their products have had on the environment and public health,” said David Anderson at the Energy and Policy Institute, headquartered in San Francisco.
Who is CAARE?
CAARE’s Articles of Incorporation say its purposes include the protection, preservation and promotion of “America’s affordable and reliable coal-fired electricity generation, transmission and distribution and the Coal Industry that supports it including coal production, transportation and supply and labor.”
The only incorporating member of CAARE was another partner at Stock’s firm. The registered agent for CAARE, ACFB Incorporated, has the same mailing address as the firm’s Cleveland office. ACFB is the firm’s initials backwards.
CAARE’s incorporation filing also shows an intent to qualify as a nonprofit organization “for civic purposes” under section 501(c)(4) of the Internal Revenue Code. Under a 1958 Supreme Court decision that protected NAACP members from harassment, such organizations need not disclose their members or donors.
And while 501(c)(4) corporations generally provide some limited information to the Internal Revenue Service, online reviews of publicly available records have not yet unearthed CAARE’s filings. It’s possible that those reports may not have been filed or required, or they may not yet be in publicly available databases.
CAARE’s brief in the Paulding Wind Farm case described its membership as “a number of operating coal production, transportation and logistics and manufacturing companies located in Ohio, West Virginia and the region. These companies are property owners of facilities in Ohio, Ohio taxpayers, and Ohio electric ratepayers served by electric distribution companies in Ohio.”
That was not enough for it to get status as an official party in the case.
“CAARE’s stated interests are nothing more than objections to wind farms generally and have no nexus to the proposed transmission line,” said the April 2016 order by Administrative Law Judge Scott Farkas.
Other cases?
CAARE’s lawyers did not take that route in two cases involving the proposed Black Fork Wind Energy project for parts of Richland and Crawford counties. After filing the request to be on the service list for CAARE, however, Stock also wound up representing other people who had already been intervenors in a request for reconsideration and appeal to the Ohio Supreme Court. That case was referred to mediation last month.
Stock also now represents individuals seeking intervenor status in the Icebreaker Windpower proceedings at the Ohio Power Siting Board. In that case, LEEDCo plans to construct and operate six wind turbines approximately eight miles offshore of Cleveland.
CAARE’s lawyers asked to be on the service list for that case on March 16. On October 16, the same lawyers filed a petition seeking intervenor status for Parma resident Vicci Weeks and for Cleveland residents Steven and Caryn Seward. The Sewards declined to be interviewed while that motion is pending. Weeks did not return phone calls.
Icebreaker Windpower has opposed the petition. Neither Weeks nor the Sewards “live, work, or even suggest they ever go anywhere near where this proposed wind farm will be constructed,” roughly nine to 17 miles from their homes, Icebreaker Windpower’s brief said. The Weeks and Sewards’ interests are “indirect, impersonal, generic, and outside the scope” of the case, the brief added.
“The Cuyahoga County Residents are the only parties opposing Icebreaker’s application,” countered the November 8 reply brief filed on behalf of Weeks and the Sewards. It claimed that their interests in protecting the environment and controlling electricity costs would not be protected by other intervenors, including the Sierra Club, the Ohio Environmental Council or other groups that support the project.
The potential intervenors’ motion remains pending. Meanwhile, the evidentiary hearing in the case was postponed until submission of more information about a radar monitoring plan for the project.
Ethical rules generally allow one entity’s lawyer to represent another client in the same case as long as there is consent from the clients. For the project developers, the situation still raises questions.
“We know that this attorney represents CAARE and the coal industry,” said Icebreaker Windpower’s lawyer Terrence O’Donnell. “It’s curious that he’s representing these three individuals in the very same case.”
In still other cases in which CAARE filed its service list requests, project owners subsequently withdrew their applications. Decisions in cases involving the Honey Creek Wind Farm and Ashtabula Wind Energy were made for business reasons that had nothing to do with CAARE, said attorney Sally Bloomfield. Interests in a couple of the other projects were subsequently sold or transferred, she noted.
Mysteries remain
Wind farm cases are not the only ones in which Stock has acted on behalf of coal interests. For example, Stock has represented the Ohio Valley Jobs Alliance in proceedings involving the South Field Energy natural gas power plant in Columbiana County, Ohio. That group’s website and Facebook page reflect pro-coal positions and include links to articles about Robert E. Murray of Murray Energy Corporation.
Stock represents Murray Energy in a challenge to Dayton Power & Light’s closure of two coal-fired power plants. On Nov. 20, Stock filed a request asking the Public Utilities Commission of Ohio to reconsider its decision to let the plants close.
Murray Energy is not involved with CAARE, according to its general counsel, Gary Broadbent. “We are not members of Campaign for American Affordable and Reliable Energy (CAARE),” Broadbent said. “I am not sure who is involved with the group.”
Brian Bradley at Rosebud Mining’s Ohio office said the company does not give out that kind of information, “one way or the other.” Ohio Coal Association president Mike Cope and West Virginia Coal Association president Bill Raney both said they did not know any members or officers of CAARE.
An IRS Form 990-N filing for 2016 did show another nonprofit organization with a similar name, the American Council for Affordable and Reliable Energy (ACARE), with Michael Carey identified as its principal officer.
Additional Form 990-EZ’s obtained through ProPublica’s Nonprofit Explorer show Michael Carey as President/CEO for ACARE through at least 2013, with Robert Murray serving as a director of that organization from 2010 through 2014.
The LinkedIn profile for Michael T.W. Carey shows that he was president of ACARE from 2009 until 2011 and has served as Murray Energy’s Vice President of Government Affairs since 2012. Carey has not responded to inquiries requesting more information about ACARE and its activities and asking if he knows any members or officers of CAARE.
Another unanswered question is why CAARE’s lawyers would formally get on a service list when the Ohio Power Siting Board’s case documents are already available online. Subscriptions for case updates automatically produce notices and links whenever something new is filed, advised Matt Butler at the siting board.
“Or perhaps they want to be identified or want people to know they are watching the case(s),” Butler said.
UPDATE: On February 6, 2018, Stock filed a request to be added to the service list in a case involving the proposed Republic Wind Farm. Stock’s filing in that case did not identify a client, so the public record does not show whether he is acting on behalf of CAARE or another client.