State Department Fountain (photo: Tom Watson)

Never mind Solyndra.  That pufffed up bit of White House political interference in agency determinations is small potatoes compared to what the U.S. State Department is doing to corrupt the environmental evaluation of the Keystone XL Pipeline project.

Brad Johnson at Think Progress reported yesterday that the State Department has farmed out critical agency functions regarding the environmental review to a private contractor that also contracts with TransCanada.  TransCanada is one of the Keystone XL pipeline sponsors and the applicant for the permit the project must obtain from the State Department.  That should cause a scandal.

The contractor, Cardno ENTRIX boasts on its website that it was contracted by TransCanada to assist the State Department in preparing the Environmental Impact Statement (EIS) and is also managing the EIS process and, shockingly, the public hearings on the EIS for the State Department.

Let’s step back and talk about the role of the EIS.  Under the National Environmental Policy Act (NEPA) every federal agency considering a major “action” — such as approval of an application to build something (e.g. a 1,700 mile pipeline) — that may have a significant impact on the environment must first fully assess those impacts, consider alternatives to the project that would mitigate or avoid any adverse impacts, and propose mitigation measures to mitigate or avoid such impacts.

A project can be turned down because of the EIS findings, and an agency’s “action” — the decision approving the project — can be reversed in court for failing to prepare an adequate EIS or give it adequate consideration.  After preparing the EIS, the agency must fully consider the EIS throughout its approval process, so that environmental concerns are adequately addressed and mitigated in any final decision the agency makes.  That’s the law.

Over 30 years of federal litigation has established that the agency must perform these functions in a competent, independent manner.  It can’t ignore or dismiss environmental concerns, and it can’t accept and rubber stamp a draft EIS prepared by the applicant.  It can contract out the job of preparing the EIS, but the contractor must be accountable to the agency, not the project applicant.  And if the applicant provides information, studies, or drafts for the agency’s EIS, the agency still has an obligation to independently verify the information and studies rather than simply assume they are professionally prepared, accurate or unbiased.  That’s also the law.

The federal government is engaged in thousands of “actions” that might have an impact on the environment, and so agencies must prepare thousands of environmental impact statements.  Over the years, a large cottage industry of consulting firms and contractors has sprung up to perform this work for the government.  Many of them are highly competent.  Others not so much.

But ultimately, the government agency itself is responsible for the integrity and thoroughness of the EIS.  And the agency itself is also responsible for conducting its internal and public review processes, including public hearings, in a manner that fully considers the EIS at every step of the agency’s decision making process.  That’s also the law.

The United States Department of State seems to be having trouble following the law.  It’s not a problem for it to contract out the job of preparing the draft EIS, provided the contractor is not also a paid consultant for the applicant. In this case, the contractor boasts that it has been under contract to the applicant. How was that conflict resolved?

Farming out the conduct of public hearings is equally problematic.  The point of having the EIS available for public hearings, and then accepting public comments on the EIS, is to ensure that those agency officials directly involved in the decision making process — and they can be staff and/or counsel who directly advise the ultimate decision maker — fully considered the EIS in the decision making process.  So this is a function that should never be farmed out, let alone to a contractor that’s also contracted to the project applicant.

The State Department needs to clean up its act.  It has already issued an EIS that blatantly ignores or downplays the most important environmental concerns with the Keystone XL Pipeline project, so its final EIS is already legally vulnerable. The hearing process may be even more so.

State Department employees, with no connection to the applicants, and who will be advising the Secretary of State when she makes the decision, need to be running the public hearings.   They need to hear the public comments.  And they need to ensure that as the decision-making process goes forward, the EIS is fully considered at every step.  It’s the law.

We live in lawless times.  The Administration’s record in upholding the rule of law is shoddy.  But if the State Department doesn’t obey the law, well maybe there’s still an honest court left that will reverse the decision when Hillary Clinton makes the predetermined decision she’s already said — in another blatant violation of NEPA — she’s inclined to make.

John Chandley, Tarsands 65

Update: Looks like the hearing in Austin yesterday didn’t go as planned.