State Department KXL Report Secrecy Hides Conflict, Criticism

March 27, 2013

The State Department's report on the Keystone XL pipeline's environmental impact is apparently so deeply flawed that the agency is keeping information about those flaws hidden from the public.

The department is trying to shroud in secrecy at least two different kinds of information about its Draft Supplemental Environmental Impact Statement (DSEIS) for the pipeline, which requires State Department approval because it would cross an international boundary to bring Canadian tar sands bitumen south to US refineries and export terminals.

First secret: the industry ties of the "experts" who prepared the report. Some of the contractors and experts who prepared the report for the State Department had done work for TransCanada, the company hoping to build the pipeline, and other companies (including ones in the Koch brothers empire) with large stakes in the tar sands oil it would carry. The State Department blacked out information showing such conflicts of interest.

Second secret: criticism of the report's flaws by groups who say it ignores or misrepresents the climate impacts of the KXL pipeline to a degree that is unscientific, unprofessional, and indefensible. A State Department blackout of public comments on its DSEIS suggests a lack of confidence that the document can withstand public scrutiny.

Also left murky is a third kind of information bearing on the integrity of the report: contacts between industry lobbyists and State officials up to and including former Secretary Hillary Rodham Clinton.

Public Comments

Criticism from environmental groups so far has focused on the DSEIS's alleged failure to fulfill the key requirement of the National Environmental Policy Act (NEPA) — to assess the environmental (especially climate) impacts of building the project. But another key mandate of NEPA requires "public participation" in federal decisions with environmental impacts. An open public comment process on a draft environmental impact statement is often an expected ingredient of public participation.

Even if NEPA didn't require public feedback, the law governing federal rulemaking (the Administrative Procedure Act) requires the dialogue between regulators and public commenters to be on the record. Approving the pipeline is a regulatory decision, since it involves granting of a permit. Regulatory proposals and comments on them are normally published online in a "docket." It is standard procedure for public comments to be included in such dockets — even when it means publishing tens of thousands of them. The dockets are published on regulations.gov, the portal for federal rulemaking, which includes mechanisms for comments to be submitted online by the public. Only rarely are such public comments not published, and when that happens agencies may be subject to withering criticism. No law prohibits the government from publishing online dockets for environmental impact statements (EISs).

The story of State's choice not to publish public comments was broken by John H. Cushman Jr., writing for InsideClimate News. (Cushman worked for 27 years at the New York Times.) Cushman notes that many dockets for EISs do not include full public comments. But he also notes that the consulting firm ERM will manage the comment process, which is likely to include strong criticism of the EIS document ERM itself had a major role in preparing.

Conflicts of Interest

When the State Department published its DSEIS for the Keystone project March 1, 2013, it also published some supplementary documents, including a statement from the consulting firm ERM, which had prepared a significant part of the DSEIS under contract for State, that it had no conflict of interest.

That document (available here) included work histories of people who had played major roles in the work for ERM. The problem was that key information in those histories had been "redacted" — simply grayed out, leaving glaring gaps.

The general issue of contractor conflict-of-interest had been raised previously in the Keystone case. But, poring through the thousands of pages that State had published March 1, reporter Andy Kroll of Mother Jones discovered the redactions of consultants' specific ties to TransCanada. Working from unredacted documents, Kroll determined that it had been the State Department that performed the redactions.