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FOIA Update: Keystone Kabuki

Earlier this year, the Department of State (DoS) began sending us documents in response to our various FOIA requests. While most of the documents are redacted or of little consequence, a select few, in combination with the sum total, raised questions about the veracity of the project’s environmental impact statement itself. Not only was the route data that DoS sent to us incomplete and not relevant to the EIS, but we learned that key documents in the official reports were either incomplete versions or that they had not been reviewed or approved by qualified professionals.

Background

As readers of this blog may recall, it has been two years since we filed suit against the DoS for the Keystone XL route data, seven years since I filed the original FOIA for the project’s environmental impact statement’s milepost data, and five years since I amended my FOIA requests to include contracts and case-related correspondence.

The DoS first denied my FOIA for route data saying that they did not possess the data. On appeal, they claimed that while they had the data, it did not belong to them. This claim flies in the face of the Master Service Agreement which states that:

All original drawings, plans, specifications, calculations, sketches, designs, reports, files (electronic or otherwise), records and other documents regardless of the media or means of storage and access thereto (“Records”) developed by, through or for the Third-Party Contractor pursuant to this Contract or any Change Order shall be the absolute property of the Department.

Read more about this in my post Dept of State Parses “all” to Avoid Keystone Disclosure.

Eighteen months ago DoS agreed that the materials we are seeking are indeed “agency records,” thus reversing their rationale for denial of the original FOIA. We then agreed to prioritized the various FOIA requests so as to focus DoS resources: 1. Route Data, 2. Contracts, and 3. Correspondence.

The most notable documents supplied by DoS, thus far, have been less than satisfying:

Contracts:

In response to DoS’ parsing of contract language, I filed a FOIA request for all DoS contracts related to the environmental impact statements. In February, the DoS released the Master Service Agreement in full. It is 250 pages long, as opposed to the 40 page agreement presented on the official document website. It has taken eight years to determine the details of the agreement governing the creation of the environmental reports, the parties involved, and their duties and obligations.

Centerline and Milepost Route Data:

DoS has sent us Montana, South Dakota, and Nebraska centerline and milepost data sourced from the Fish and Wildlife Service (FWS). This data appears to be for a 2012 route. It is insufficient for a number of reasons:

  • I have spot checked the data against the various environmental reports (EIS, SEIS, and FSEIS) from 2008 to 2014 and found that it does not correspond to these documents. A fundamental reason for filing the FOIA requests in the first place was to enable evaluation of the environmental reports. Since this route data is not the same route data used in the environmental reports, it does not meet the most basic requirement for fulfilling the FOIA request.
  • Since the data comes from FWS, we do not know where it originated, why it was generated, and how it is changed from the route described in the DoS’ environmental reports.
  • Aside from the FWS data’s incongruity and unknown origin, it should be noted that the entirety of the Oklahoma and Texas route is missing. Oklahoma and Texas were originally part of the Keystone XL and, as such, were included in the environmental analysis. Later the Oklahoma-Texas route was spun off as the Gulf Coast Extension. The Gulf Coast Extension relied on the original KXL environmental analysis.
  • We are not seeking one data set, but a series of data sets. The route is, in fact, a moving target that has changed incrementally to reflect updated surveys, recognition of sacred sites, sensitive areas, etc. So, while we need the latest route, we also need to see how that route has changed, and, most importantly, see the data supporting the analysis in the environmental reports.

Correspondence:

Of the nearly 200 pages of emails and other correspondence returned in response to the FOIA requests, most have been fully redacted. The DoS is claiming an exemption from full release.

Of note are two letters that have not been redacted —both FOIA requests for Keystone XL route data:

  • The New York State Assistant Attorney General filed a FOIA on March 12, 2013 for three assessments prepared by EnSys Energy & Systems. When I spoke to the Assistant NY AG he did not recall receiving a response to his FOIA. Being wiser than I in matters such as these, his office cut their loses and did not pursue the matter further.
  • A design engineer formerly employed by one of TransCanada’s subcontractors filed a FOIA seeking technical drawings listing him as the reviewing registered engineer. He discovered that, three years after leaving the project, his name was still being listed on Keystone XL technical drawings. Other technical drawings showed no evidence of being reviewed by a registered engineer at all. Many were drawn by a GIS specialist, checked by an engineer in training, and approved by a person “unlicensed in any capacity.”

The Keystone Kabuki

When taken is sum, these documents paint a discouraging picture of the environmental review process. For eight years DoS has been unable to produce a coherent data set to support their environmental review and, now we learn that, many of the underlying technical drawings appear to have not been reviewed by a registered engineer. Further, by responding to this FOIA with incongruent and redacted data, DoS signals that not only does the data fail to meet the requirements of the environmental reports, but that the process itself is fatally flawed, calling into question the veracity of the environmental reports themselves and whether they ever contained a sound analysis. It appears that the environmental reports are in good measure a vast document dump lacking the most fundamental means for verification: namely, that of knowing where the pipeline is routed.

One gets the impression that the Keystone Pipeline environmental reports were never meant to be read and that they were simply a performance of due diligence and analysis —a kabuki theater of sorts, daunting enough to forestall public review until it was too late to halt construction.

Contact me directly with any questions regarding these documents.

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