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Friday, November 16, 2012

What the NHCLC Would Have Us to Believe

My last post reported on the NHCLC’s official statement in response to my open letter. As you’ll recall, my letter asked Samuel Rodriguez and the NHCLC to explain why they had joined in two separate amicus briefs in support of major power companies and to describe how this action fit with the mission of the NHCLC. The answer to this particular inquiry is rather stunning to me. The NHCLC, through its Legal Counsel the noted attorney Matthew Staver, issued the following reply:

Regarding the amicus brief, NHCLC worked with CORE, the Congress on Racial Equality, but CORE, not NHCLC, filed the amicus brief. NHCLC was unaware that its name was listed and did not consent to the name being listed. CORE has already issued regrets to NHCLC for listing its name. NHCLC would not have and did not give consent to be listed.

Let’s examine this statement carefully and line by line. First of all, there were two amicus briefs filed. One, filed on March 7, 2010, before the Fifth Circuit Court of Appeals in New Orleans, the other filed on February 7, 2011, before the Supreme Court of the United States, Second Circuit Court of Appeals in New York City. It is in the nature of amicus briefs to be perfectly clear who filed the brief and whom the brief speaks for. The entire purpose of these briefs is to add an additional voice to the court’s record on the case and so it is vital that it be clear whose voice is represented in the brief. I believe that a simple reading of these briefs make perfectly clear who filed them and whose voices were intended to be heard. In the case of the 2010 brief before the Fifth Circuit, page one reads the following: “BRIEF OF AMICI CURIAE THE AMERICAN FARM BUREAU FEDERATION AND THE AFFORDABLE POWER ALLIANCE” (caps in original, bold/underline emphasis added). CORE is not listed as being responsible for the brief, the Affordable Power Alliance (APA) is. And who is the APA? The first page of the brief immediately defines the APA this way: “comprised of the Congress of Racial Equality, the High Impact Leadership Coalition, the National Hispanic Christian Leadership Conference, and the 60- Plus Association”. Of course, this is not a surprise since that is the makeup of the APA in all of its public statements. Any visitor to the APA’s website will find it identified as being composed of these same groups.

In the second amicus brief, the one filed for the Second Circuit, the cover page reads “BRIEF FOR AMICUS CURIAE NATIONAL BLACK CHAMBER OF COMMERCE AND AFFORDABLE POWER ALLIANCE” (emphasis added). On page two of the brief the APA is defined this way:

The Affordable Power Alliance, an ad hoc coalition of civil rights, African American, Latino, small business, senior citizens and faith- based advocacy organizations. Its members include:
§ The Congress of Racial Equality, which was founded in 1942 and is the third oldest and one of the “Big Four” Civil Rights groups in the United States;
§ The High Impact Leadership Coalition, a national coalition of faith-based leaders, ministers and churches;
§ The National Hispanic Christian Leader- ship Conference, the largest Latino Christian organization in America, with 16-million Latino evangelical members and 24,000 member churches

In both cases the law firm that filed these briefs gave no indication that the Congress of Racial Equality (CORE) was actually doing the filing, rather than the APA as a whole. It is very much worth noting that the law firm that represented the APA in these two filings is Troutman Sanders LLP, and the lawyer for this firm is in both cases presented as Douglas A. Henderson. Troutman Sanders is a major international law firm with “more than 600 lawyers and offices located throughout the United States and China”. Energy and Industry Regulation are one of its five primary areas of focus and its client list is a veritable whose who of major oil and power companies. In the two cases that the APA used Troutman Sanders for, the companies the APA was speaking in defense of included Shell, Exxon, BP America, Dow Chemical, Chevron and the American Petroleum Institute.

What the NHCLC would have us to believe is really quite remarkable. They would have us to believe that a high-powered law firm filing in defense of some of the most powerful companies in the world in cases before two of the Supreme Court’s Circuit Court of Appeals made two interwoven mistakes: one, they made a mistake in their filing by listing APA as the filer of the briefs, not CORE which supposedly was really responsible for the filing; two, they made a mistake by clearly identifying the NHCLC as an equal member with the APA in its description of the APA. In each of these mistakes the NHCLC would have us believe that Troutman Sanders never checked with the NHCLC to gain its consent. This would be a remarkable set of errors, made by a remarkably competent lawyer, working for a remarkably respected law firm, on behalf of remarkably powerful companies, before remarkably prestigious courts, but I don’t see any other way to explain the situation if what the NHCLC is saying is true.

I find it quite extraordinary that the NHCLC expects people to believe its version of events and I note for anyone interested that neither the APA’s website or the NHCLC’s website make any public expression of the story that the NHCLC has told me. Samuel Rodriguez is still pictured on the leadership page of the APA, no mention of any regret is made anywhere on the APA or CORE websites, and the NHCLC continues to list without clarification its role as a member of the APA and a partner with CORE in its leadership. All of this fits the pattern of behavior I experienced following my last two encounters with the NHCLC, first over Samuel Rodriguez’s leadership role in the Oak Initiative, and second concerning the contradictory positions staked out by Rodriguez on the question of EPA regulation of mercury. I fear that the many good works of the NHCLC are threatened by a crisis of leadership and a radicalization of purpose deeply at odds with the public image presented to its member congregations, partnering organizations and the media at large. At a time when America needs voices of integrity and clarity on the major issues we face we find from the NHCLC anything but those virtues in case after case. 

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