A Seat at the Table

At Nuclear Energy Institute, attorneys have elevated their status with a legal advisory committee to influence governance and policy

When Ellen Ginsberg joined the Nuclear Energy Institute (NEI) in 1991, her plan was to spend a year or two getting experience working from a client perspective, and then return to the partnership track with her firm. The stint turned out to be so interesting and stimulating, though, that she never left.

“I very much liked working with the previous general counsel, and I really enjoyed working on regulatory issues,” she recalls. “More importantly, working for the trade association provided me with the opportunity to gain experience with a much broader scope of issues than those I was assigned to at the firm.” In addition to regulatory matters, working for NEI meant tackling issues involving antitrust, contract negotiation, employment law, intellectual property, lobbying, and litigation. “I never really knew what I would face when I walked into the office on any particular day,” she says. That continues to be true
today.

In 2005, Ginsberg assumed NEI’s general counsel mantle. During her tenure, she has worked to broaden the scope of the organization’s legal department, enabling it to even more directly contribute to the organizational goal of influencing and implementing industry strategy. Bolstering the legal team became necessary as the workload grew and the cost of engaging outside counsel escalated. Under her leadership, the legal team grew from two lawyers to its present staff of five.

Ginsberg is obviously proud of her team’s many contributions, but cites as a particularly notable achievement having prevailed in a lawsuit NEI brought to relieve the industry of having to pay $750 million annually for a federal program that had been terminated. That program, which was enacted to implement the government’s responsibility to safely dispose of used nuclear fuel at Yucca Mountain, has been delayed for years and, in her words, “the industry had had enough.” Although she initially believed the lawsuit was a long shot, she hoped the simplicity of the legal theory—if no program exists, no costs can be estimated, so no fee should be collected from the industry—might be favorably viewed by the court. With strong support from her CEO and a few members, Ginsberg advocated to NEI’s executive committee to let the organization take the risk because a win would be very advantageous for the industry, and there would be no downside if the court rejected NEI’s position. Ginsberg says the day the decision issued was among the most satisfying of her career.

Building the legal team is also one of her proudest accomplishments. Trade associations present a number of advantages when it comes to developing talent, she notes. The wide variety of topics allows lawyers to stretch their skills and indulge their interests. That is a plus for recruiting and retaining staff.

Training Day

Ginsberg recently hosted an offsite retreat for attorneys of NEI member companies. She shares why the group met in Oak Ridge, Tennessee last fall.

“Oak Ridge gave us an opportunity for younger members—and even those of us who are more familiar with the development of the Manhattan Project—to tour the American Museum of Science and Energy and get a feel of what Oak Ridge was like [during World War II]. I recently read The Girls of Atomic City, which really opened my eyes to how much this segment of the population contributed to the effort to end the war. Complementing the meeting and training with the opportunity to learn about the history of nuclear technology provided an interesting opportunity to broaden the committee’s perspective.”

“I’m careful about whom I select and am careful to make sure that they enjoy the job,” she says. Hiring people with strong soft skills and with potential to develop those skills further is a key point. “What we’ve built here is a highly congenial, highly competent equivalent of a boutique law firm,” she says. The members of NEI’s legal team rely on each other as sounding boards, she says, which contributes to skills development and an amiable, stimulating working atmosphere. A horizontal, less hierarchical management approach has also been an important part of the department’s success, Ginsberg says.

Everyone has a fair amount of responsibility and independence even early in their tenures with the organization, she adds. Ongoing learning is emphasized. There is a continuing focus on developing expertise in more areas through avenues such as webinars and conferences. Keeping up with regulatory matters via trade publications and discussions with outside counsel is also a vital part of the job.

In January 2015, Ginsberg took a notable step to boost how the legal team contributes to industry strategic matters by launching a new legal advisory committee within NEI. Advisory committees had already been formed for governmental affairs, communications affairs, nuclear strategic issues, and for suppliers. Ginsberg felt strongly that a similar group should be devised for legal matters to offer valuable expertise to NEI’s governance and external policymakers.

All advisory committee chairs attend open meetings of NEI’s executive committee and board of directors and typically make presentations highlighting relevant policy issues. Members of the legal advisory committee (LAC), who include representatives of major utilities, suppliers, engineering firms, and law firms, also have increased opportunities to interact with representatives of the Nuclear Regulatory Commission and other agencies and government bodies. Roundtable meetings provide LAC members with a chance to engage in give-and-take discussions with high-level federal and state government officials, topical experts, and opinion leaders, among others. “We are an extremely compliance-focused industry—the most heavily regulated industry in the country,” Ginsberg explains. Meetings with policymakers as well as legal and regulatory staff help NEI members manage their business.

NEI has more than 350 members in 17 countries. They comprise utilities that operate nuclear power plants, plant designers, architect and engineering firms, and major equipment suppliers. The nature of a trade association raises a significant challenge. “When you work for a corporation, you have a single client,” Ginsberg notes. Working for a trade association, on the other hand, means she has many clients. Ginsberg has to take into consideration the interests of all members, some of which may be at odds over certain issues. “That can be the most challenging part of any of the work we do,” she says.

For example, in late 2014 the Department of Energy (DOE) issued a rule that proposed two approaches to allocating certain costs to supplier members. “Both approaches were disliked by everyone—but for different reasons,” she says. “I pressed hard for us to develop a proposal that we could suggest to DOE as a substitute to address the industry’s concerns,” she says. “We did do that ultimately, but getting there took many, many meetings and phone calls. Some of the members may have agreed to it somewhat begrudgingly, but in the long run, it is better for the industry to have a proposal that is rational and addresses the concerns of the agency than to simply poke holes in the agency’s proposal.”

That example illustrates how understanding the business and contributing to the organization’s strategic direction are vital for a trade association’s legal team. The way Ginsberg sees it, that’s part of an attorney’s job. “I get a barrage of articles that talk about the necessity of being ‘more than just a lawyer,’ and we are dedicated to practicing that way.” Ginsberg says. At NEI, the legal team continuously proves that point.