Friday, July 27, 2001 | 4:58 a.m.
WASHINGTON -- The law firm being paid $16.5 million by the Energy Department to complete legal work for its Yucca Mountain repository has been lobbying to get the project built.
Nevada officials are crying foul. Chicago-based Winston & Strawn, the same firm that actively advocated the Yucca project, cannot independently review Yucca documents and impartially advise the DOE about possible flaws, they say.
The DOE manages the proposed Yucca Mountain project, a federal plan to bury 77,000 tons of the nation's nuclear waste at the site, 90 miles northwest of Las Vegas. DOE scientists have been studying the desert ridge for years; now they are preparing to get a license from the Nuclear Regulatory Commission.
In 1999 the DOE needed a law firm to help it prepare a license application, estimated as a 38,900-man-hour legal job. Two firms applied. The department awarded the $16.5 million contract -- big even by international firm standards -- to Winston & Strawn, one of the nation's oldest and largest law firms.
Recent Sun research revealed that Winston & Strawn was also -- until just days ago -- a registered lobbyist for the Nuclear Energy Institute, the industry's top trade group and the most vocal Yucca proponent in Washington. The law firm, on NEI's behalf, lobbied Congress, the NRC, DOE and the Environmental Protection Agency, congressional records show.
Winston & Strawn worked for NEI for six years until July 11 when it suddenly severed the relationship, congressional records show. The firm filed its termination notice the week after the Sun began seeking comment from its lawyers for this story.
"It just shows that someone may have gotten caught with their hand in the cookie jar," Sen. John Ensign, R-Nev., said.
Winston & Strawn this month declined numerous requests to comment for this story.
"Probably the reason they severed the relationship is that they are obviously doing all this work for the DOE on Yucca, and they are very conservative in terms of appearances -- they don't want the appearance of a conflict," NEI spokesman Mitch Singer said.
Winston & Strawn's close relationship with the nuclear power industry is further evidence the DOE is a biased project manager, Nevada leaders said.
"On its surface, it doesn't pass the smell test," Ensign said. "I think it's a clear conflict of interest, even if technically it doesn't violate the law."
Ensign said he is considering options that include requesting an official investigation.
The DOE by law is supposed to remain an independent, neutral manager of the controversial project, not align itself with pro-Yucca lobbyists, other Nevada officials said.
"How less neutral can you get?" Rep. Shelley Berkley, a lawyer, said. "What is the Department of Energy doing hiring a law firm that also represents the nuclear industry, whose only purpose is to put nuclear waste at Yucca Mountain?"
Rep. Jim Gibbons, R-Nev., said he was stunned to find out Winston & Strawn also lobbied for NEI.
"The questions of perception, of trust-worthiness, of confidence in the process are at stake," Gibbons said. "I find this to be typical of the DOE and the nuclear industry in their effort to manipulate the process. This puts into direct question the issue of fairness. How can you be unbiased when you are paid by their (nuclear) side?"
Industry ties
Winston & Strawn has deep ties to the industry. The firm represents more than 20 electric utilities that own approximately 50 percent of all U.S. nuclear power plants, according to its website. The firm has developed a "nuclear energy practice" within its 850-lawyer firm.
Winston & Strawn, working for NEI in 1996 and 1997, lobbied Congress to pass nuclear waste bills that speeded up the Yucca plan, according to congressional lobby records.
DOE officials said they had little choice but to hire Winston & Strawn. Only one other firm, Washington-based LeBoeuf, Lamb, Greene, MacRae, L.L.P., was qualified, and Winston & Strawn's bid was $3.7 million lower. Winston & Strawn also has a lot of experience with nuclear issues, DOE spokeswoman Jill Schroeder said.
"The bottom line is that the DOE needed legal services and Winston & Strawn was interested, (it) applied, and (it) competed for it," Schroeder said. "We have found them to be eminently qualified."
Schroeder said DOE officials knew when they hired Winston & Strawn that the firm represented "organizations related to the nuclear industry," but she denied the firm's relationship with NEI created a conflict of interest.
It's not clear what the DOE gets for the $16.5 million in taxpayer money it pays the firm. DOE officials said that information was not readily available. They would not release the firm's bills, expense reports or the firm's job bid proposal.
Top attorneys
The firm manages "a team of approximately 7 to 10 attorneys and legal assistants," on Yucca legal work, according to a U.S. District Court document submitted by managing partner J. Michael McGarry in a case involving a separate conflict-of-interest charge against it.
The names of people on the legal team were not available, Schroeder said.
In the court document, McGarry argued that taking the Yucca work away from the firm based on a conflict-of-interest charge would cause it to "suffer significant injury."
The DOE's initial job posting, formally called a request for proposal, suggested that the firm that won the bid would have to station lawyers in both Las Vegas and Washington.
The scope of the job was laid out in detail by the DOE in the request. It listed nine areas of concentration.
A primary job would be to review DOE "analyses, studies, plans, specifications and drawings" to make sure the material met NRC requirements.
The firm also would have to recommend to DOE a strategy "to enhance the likelihood of obtaining a timely authorization to construct the repository."
The firm would have to represent the DOE in court and at NRC meetings and assist in the "presentation of DOE's case."
Legal experts are divided on whether Winston & Strawn broke any rules.
Merely representing both NEI and DOE doesn't present a conflict, said Thomas Morgan, a legal ethics professor at George Washington University in Washington, who has testified on behalf of Winston & Strawn in a separate conflict-of-interest case.
Morgan and other legal ethics authorities said Winston & Strawn was bound by professional codes of conduct not to share confidential DOE information with NEI.
"It comes up amazingly often that you come across information from one client that another client would like to have, but you simply can't pass it on to them," Morgan said.
Lawyer-client relations
Large international firms such as Winston & Strawn have huge client lists and representing one client doesn't automatically translate to bias toward another, said George Kuhlman, an ethics lawyer for the American Bar Association.
The nuances of each complex lawyer-client relationship must be considered, Kuhlman said, adding that a firm must assess whether there would ever be a real-world situation in which it would be conflicted, such as in a courtroom.
"You have to get into all these details before you can say, 'This is an unpermissable conflict,' " Kuhlman said.
UNLV law professor Jeff Stemple said Winston & Strawn faced a simple question: Can our firm in good conscience represent both clients?
"It's a tough question," Stemple said. "In my mind, probably not."
Stemple said Winston & Strawn walked a fine line.
"If I were the DOE, I would have gotten a law firm that was as distant from these players as possible," Stemple said.
UNLV ethics professor Craig Walton seized on a larger issue -- the DOE is in a difficult position trying to remain independent about its historic project. The DOE has studied the Yucca site for 20 years and spent nearly $8 billion on the $58 billion project.
"It is not workable to have the same organization, DOE, both trying to get the thing built, and also trying objectively to weigh all factors, investigate scientifically and conduct true public participation hearings," Walton said.
Among other inquiries, Winston & Strawn declined to answer whether its DOE lawyers ever mixed with its lobbyists.
Nevada issues
Assuming "firewalls" exist in the firm, Nevada officials still said the DOE should have gone out of its way to find a completely independent law firm in the first place. They have long argued that the department has gotten too close to the nuclear industry.
"I think there (was) an issue there, without a doubt," said Bob Loux, Nevada's chief DOE watchdog and head of the state's Nuclear Project Agency. "It demonstrates one argument of the hand-in-glove relationship that exists between the DOE and NEI."
Sen. Harry Reid, D-Nev., said, "There is no question there is the appearance of impropriety. It doesn't look good to me."
Las Vegas Mayor Oscar Goodman, an attorney, said Winston & Strawn faced a "classic case" of conflict of interest.
"In certain cases, you can't be the servant of two masters," he said.
Nevada Senior Deputy Attorney General Marta Adams, who is assisting in a separate conflict-of-interest case against Winston & Strawn, said the firm had a conflict with NEI -- or at least the appearance of one.
"This whole thing is so tainted, I think the public at least needs to know about it," Adams said. "We want to know that the license application will be looked at with the public's interest at heart. We don't feel we are getting the protection we are entitled to because this firm is not in a position to be independent."
Yucca Mountain is the only site being considered as a permanent nuclear waste burial ground, but it has not yet received approval from the president, Congress or the NRC.
NEI acts as the top cheerleader for the project and over the years has hired a number of lobby firms to promote it. NEI had 10 lobby firms on an "active" list in 2000, paying them about $815,000, according to congressional records.
NEI has retained Winston & Strawn since 1995, although the firm has been one of its lowest-paid lobbyists, according to congressional records. NEI paid the firm "less than $20,000" in each of the last six years except 1998, when it paid it $28,950, records show.
archive
