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State Department Letting Keystone XL Contractor Manage Its Environmental Review

7:15 am in Environment, Keystone XL Pipeline by Scarecrow

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.

White House Pulls a Bait and Switch on Drilling Moratorium; Chu Dissents

6:28 pm in Uncategorized by Scarecrow

Soon after it became apparent the BP blowout would create a huge oil disaster, President Obama and Interior Secretary Salazar announced a moratorium on issuing further permits for deepwater drilling in the Gulf, pending (at least) a 30-day review by Salazar of the safety implications of the blowout.

Today, after the New York Times reported numerous permits and environmental review exemptions were still being issued by Minerals Management Service for new drilling activities notwithstanding the moratorium, the White House explained the word "moratorium" doesn’t mean what you think it means.

At today’s White House Presser, White House Energy and Climate Change Policy Director Carol Browner told reporters the "moratorium" only applied to operations undertaken by applicants who were not already engaged in permitted drilling activities, but it did not apply to new or additional drilling activities at the already permitted sites, even if they required a "permit." Those approvals, she explained, were not "permits," they were "modifications."

Oh. So, if a previously permitted project needed a new/additional permit to change its drilling plans, because the original well ran into a problem and the operators needed to drill another/different well, that new drilling activity could still get a permit; the moratorium wouldn’t apply because that’s not a new permit; it’s a "modification."

Well, that’s one way to frame a "grandfather" exception to a moratorium, but that’s hardly what the public was [mis]led to believe. The public would have assumed that our government was not going to allow further activities like those leading to this catastrophe until, as the President put it, we had "assurances" that it could be done safely. But now they tell us that’s not what they meant.

But the question is, why didn’t they mean that? If a driller still needs to go through all of the inherently risky final drilling, casing, cementing, plugging, etc that were implicated in the Horizon blowout, wouldn’t those be precisely the activities you’d want to suspend until you knew it could be done safely?

To see the absurdity of the Administration’s definition of a moratorium on "new permits," but not "modifications," recall what the Times story reported about what the Deepwater Horizon rig was doing: [my bold]

Among the types of drilling permits that the minerals agency is still granting are called bypass permits. These allow an operator to drill around a mechanical problem in the original hole to the original target from the existing wellbore.

Five days before the explosion, the Deepwater Horizon requested and received a revised bypass permit, which was the last drilling permit the rig received from the minerals agency before the explosion. The bore was created and it was the faulty cementing or plugging of that hole that has been cited as one of the causes of the explosion.

In other words, the actions that led to BP’s catastrophic blowout, explosion and spill were all undertaken under a permit ["modication"] the Administration now says is exempt from the moratorium. So if a catastrophe had occurred at a different, previously approved well, instead of on Deepwater Horizon, and a moratorium had been imposed in response to that other disaster, the Administration’s so called "moratorium" would still have allowed a permit to the Deepwater Horizon activities that caused the real catastrophe.

Or to put it another way, the MMS is continuing to issue new permits to drillers to engage in further new activities that are identical to risky activities that led to the BP oil disaster. That’s essentially what the Times reported, but now we have the Administration admitting this absurd and reckless policy is exactly what they meant when they misled the public about a "moratorium."

Why has no one been fired for this?

Whoa: Just heard Energy Secretary Chu tell Rachel Maddow that "personally, I think we should stop all new drilling, whether its preapproved or whatever, until we get to the bottom of this." (Video here.) Finally, an honest man.


In a similar vein, during a Congressional hearing to address why MMS was issuing OCS drilling permits without full compliance with the National Environmental Policy Act, Salazar also promised to change the policy of granting categorical exemptions from preparing environmental impact statements. The message seemed to be there would be a moratorium on further permits until Minerals and Management Service (MMS) made necessary changes in its NEPA process to assur full consideration of possible impacts and mitigation in the event of a serious blowout. Apparently, that too is inoperable.

Times-Picayune, Government can’t push BP aside from oil spill response, Thad Allen says