In his corner office with views of the U.S. Capitol and the National Mall, Department of Energy General Counsel Scott Blake Harris looks like the consummate lawyer in his dark suit, French-collared shirt and yellow silk tie.
And then there are his socks. They’re green. Bright, Crayola green.
“No, I’m not colorblind,” he laughed. On his first day of work as general counsel in May 2009, Harris called a meeting of the department’s 150 headquarters lawyers, stepped out from behind the podium and took off his shoes to reveal green socks. “Everyone was looking at them because, well, it was so odd,” he said. “I told them it was a metaphor — something different, unusual, maybe creative. The reason I was wearing them, I said, was to make a statement about the kind of work I wanted to do during my tenure, and that I would wear green socks every day as a reminder.”
He’s kept the sock pledge (“much to the consternation of my family,”), even issuing quarterly “green sock” awards to Energy Department lawyers for creative work in the public interest. He’s stayed true to his goal of shaking up the office of general counsel as well. When he steps down as GC next month, he leaves behind an office that is both more aggressive and more open.
On his watch, the GC’s office issued the first subpoenas in department history, began enforcing energy efficiency regulations for the first time and put online thousands of decisions and details of ex parte meetings that were previously inaccessible. The moves have won him fans in the environmental community. “He’s really changed the culture of the office,” said Katherine Kennedy, who is counsel to the air and energy program at the National Resources Defense Council. “In the sphere of energy efficiency, I’d give Scott the highest grade possible.”
Industry has (by and large) been favorably impressed as well. “He’s done a great job,” said H. Russell Frisby Jr., a partner in Stinson Morrison Hecker’s Washington office and outside counsel to the Edison Electric Institute, whose members represent about 70% of the U.S. electric power industry. “Scott’s been very open about encouraging industry to come in and sit down and talk. He’s not shy about giving bad news, but I appreciate his frankness.”
For all of Harris’s accomplishments, though, stubborn legal problems remain. Despite stepped-up efforts at settlement, the Hanford “downwinder” litigation, involving thousands of plaintiffs who claimed harmful exposure to radiation, is entering its 21st year — at a cost to taxpayers of more than $50 million in fees to outside counsel representing contractors.
Challenges to the Obama administration’s decision to pull the plug on the nuclear waste dump at Yucca Mountain could stretch that litigation far into the future. The U.S. Court of Appeals for the D.C. Circuit will hear oral arguments in a suit brought by the states of Washington and South Carolina on March 22, while a parallel matter is pending before the Nuclear Regulatory Commission.
Harris, who is 59, was not an obvious choice for general counsel (a position that requires confirmation by the U.S. Senate), since he had no substantive energy law experience. Instead, the co-founder and managing partner of Washington’s Harris, Wiltshire & Grannis (now Wiltshire & Grannis) was known as a top telecom lawyer, advising companies such as Microsoft Corp., Apple Inc. and Cisco Systems Inc. on broadband and spectrum issues. Before launching the firm in 1998, Harris chaired Gibson, Dunn & Crutcher’s communications practice and was a litigation partner at Williams & Connolly.
What he did have was government experience — he held politically appointed posts at the Commerce Department and Federal Communications Commission during the Clinton administration. He also had ties to Barack Obama.
Harris met Obama six years ago through his then-14-year-old son, Colin, who’d landed a part-time internship with the junior senator from Illinois and kept coming home raving about his boss. “I wanted to meet him because my son made him sound extraordinary,’ ” Harris said. Like his son, he was deeply impressed and became an early Obama supporter, raising at least $500,000 in bundled contributions for his presidential campaign, according to the Center for Responsive Politics.
Serving as Energy Department general counsel was a job that Harris said “surely had not occurred to me,” but he jumped when the opportunity arose.
What Energy Secretary Steven Chu wanted in a GC, Harris said, was “not just a good lawyer, but a good manager as well. He thought the office needed to do more, to be faster and more efficient, and he charged me with transforming it.”
As for his lack of subject-matter expertise? “The Department of Energy has 15,000 employees and 100,000 contractors,” he said. “The scope of the general counsel’s work is commensurate with the scope of the department” and includes everything from administrative law to Freedom of Information Act requests to national security issues. Energy law alone doesn’t begin to cover it.
“What served me best is having done so many different things in my career,” Harris said.
Chu praised Harris for “providing me with invaluable advice on a daily basis,” he said in an e-mail. “In two years, Scott transformed his office into a dynamic force for change.” Chu (who won the Nobel Prize in physics in 1997) said Harris “streamlined and made more accessible and transparent our rulemaking process, and built an enforcement unit,” as well as reformed the National Environmental Policy Act review process. “Scott has been a trusted member of my team and I will miss him.”
Other clients within the agency give Harris high marks as well. National Nuclear Security Administration Administrator Thomas D’Agostino, who has spent most of his career at the Energy Department working his way up the ranks, called Harris “one of the most effective general counsel in the past 20 years. With Scott as the general counsel, the organization has focused on timely and effective legal counsel with a focus on making things happen,” D’Agostino said via e-mail.
One of Harris’s first priorities was to begin enforcing energy-efficiency regulations covering a range of major appliances — something that the GC’s office had never done before. “People buy appliances assuming they’re going to get the energy savings promised. If they don’t, they’re being cheated,” Harris said. “Our enforcement efforts have dramatically reduced the likelihood of that.”
The agency’s first action was to remove the Energy Star rating on certain high-end refrigerators made by LG Electronics Inc. after tests showed the models consumed 20% to 35% more energy than reported. LG, represented by Sidley Austin, sued in the U.S. District Court for the District of Columbia, charging that the agency lacked the authority to do so. The company’s request for an injunction was denied last January, and it dropped the suit in May.
Since then, Energy Department lawyers led by Timothy Lynch, head of the newly created enforcement office, have settled 45 cases, collected $550,000 in fines and taken 70 unlawful products off the market.
Joseph Mattingly, general counsel of the Air-Conditioning, Heating and Refrigeration Institute, described Harris’s initiatives as “a little unnerving at first.…Scott came across frankly as a pretty tough guy.”
Despite the initial anxiety, Mattingly said, the enforcement program has garnered support. “We think it’s in the industry’s own interest to make sure the efficiency ratings are accurate and policed,” he said. And he credits Harris for his accessibility. “Our experience in Washington is that it’s not easy to get access to decision-makers. If we’ve got a problem, he’s willing to talk it through. Not that he’ll give you anything, but he’ll listen and learn.”
Harris has made accessibility a touchstone of his tenure. “I encourage stakeholders to come in and talk to us,” he said. “If you simply file written comments, you can hide the weakness in your argument. It’s a lot harder to do that when you’re sitting across the table from someone asking questions.”
With accessibility comes transparency — all ex parte meetings and materials are now logged on the GC office’s revamped Web site. He’s also put online the 2,000 to 4,000 decisions the agency makes each year when it determines environmental impact statements are not necessary.
Harris tried the personal approach with the long-running litigation over the government’s plutonium production complex at Hanford, Wash., which was decommissioned in the late 1980s. The plaintiffs, who are suing the contractors that ran the facility, allege that the release of radioactive material caused medical problems for thousands of people.
Harris was the first general counsel to meet with the plaintiffs’ attorneys, and the first to agree that the cases should go to mediation. He also upped the settlement offers and made them to people who had never received offers before. “I’ve done everything I can responsibly do to try to bring cases to conclusion through settlement,” he said, calling it “appalling” that the matter has dragged on so long. But he added, “while we have settled a significant number of cases, we have not settled nearly as many as I had hoped. I think the plaintiffs’ lawyers have invested so much in the cases that they find it very difficult to settle.” About 1,500 plaintiffs remain.
Because the Energy Department indemnified the contractors, which include General Electric Co. and E.I. du Pont de Nemours and Co., the government is on the hook for their legal bills — about $50 million over 20 years, with Kirkland & Ellis serving as lead defense counsel.
Another deep-rooted legal fight concerns the decision to abandon Yucca Mountain in Nevada as a repository for nuclear waste. In March 2010, the Department of Energy filed a motion with the Nuclear Regulatory Commission (NRC) to withdraw the Yucca Mountain license application — the first step to kill the project.
“We had a choice to make: file a motion to withdraw the application, or just to withdraw it. The statute was not clear on the required procedure,” Harris said. “We decided to file a motion to withdraw, in effect to ask the NRC for permission, and to explain up-front the legal rationale underpinning the decision. We knew there would be opposition, and we believed that opposition deserved to be heard. We want to prevail, but on the merits.”
The matter is pending before the NRC. A suit brought by plaintiffs including the states of Washington and South Carolina, which are stuck storing tons of radioactive material, is before the D.C. Circuit. They say the Department of Energy has no authority to scrap the Yucca Mountain plans.
Harris responded, “All actions the department has taken are entirely lawful.”
Still, he won’t be around to see the outcome. He’s leaving the Energy Department sometime in March.
“At the end of the day, my first obligation is to my family,” Harris said. “With one child off at college and another set to follow soon, it’s the right time for me to make this change.”
Will he go back to telecom law? Or is he now an energy specialist? “I ask myself that question all the time,” he laughed. “Today I’m a general counsel. I’m not sure about tomorrow.”
Those who know the agency predict many of his changes will endure. “Scott’s legacy probably will be bringing an enforcement mentality to an agency that until recently did not have much of an enforcement role,” said Sidley partner Roger Martella, a former general counsel at the Environmental Protection Agency. “He brought an enforcement hat to an office that in the past had focused primarily on regulatory issues and compliance assurance.”
Harris put it simply, “I feel I accomplished what I set out to achieve,” he said. “This has been the most exciting, interesting work in my entire career.”
Jenna Greene can be contacted at email@example.com.