Taking the DoS to Court for KXL Route

Yesterday I joined with the Center for Biological Diversity to sue the Department of State for the Keystone XL GIS data, as well as the contracts with private consultants who prepared the environmental impact reports. My FOIA cases with the DoS have been pending for over five years and have never received proper consideration.

The official PR release can be found online:
http://www.biologicaldiversity.org/news/press_releases/2017/keystone-xl-pipeline-05-18-2017.php

For Immediate Release, May 18, 2017
Contact: Amy Atwood, (503) 504-5660, atwood@biologicaldiversity.org
Thomas Bachand, (510) 547-8622, keystone@steamingmules.com

Lawsuit Demands Keystone Pipeline’s Route, State Department Contracts

Feds Denying Public Information Needed to Evaluate Oil Pipeline’s Full Impacts

WASHINGTON— The Center for Biological Diversity and Thomas Bachand filed suit today against the U.S. Department of State to obtain information on the route of the Keystone XL Pipeline, as well as contracts and correspondence with private consultants involved.

The State Department is required to make public information about the route of the pipeline and related documents under the Freedom of Information Act.

“We can’t fully understand Keystone XL’s threats to our water and wildlife until the Trump administration releases public documents about this dangerous pipeline’s route,” said Amy Atwood, the Center’s endangered species legal director. “With the State Department illegally refusing to provide information about a leak-prone pipeline that could pollute hundreds of waterways, we’re left with no option but to sue.”

Today’s suit was filed in federal court in Washington, D.C. on behalf of the Center, which has advocated against the Keystone XL Pipeline for years, and Thomas Bachand. Bachand is the creator of the Keystone Mapping Project, an internationally recognized online multimedia and photography project that examines land use, climate policy and transparency through an exploration of the Keystone Pipeline, the 2,000-mile diluted bitumen pipeline that would bisect the North American Continent.

The lawsuit demands that the State Department provide specific kinds of records — known as geographic information systems, GIS layers or Shape files — that would reveal precisely where the Keystone XL Pipeline route would go, if constructed. The suit also demands correspondence and contracts the State Department signed with private consultants who prepared the environmental reviews for the pipeline.

“The Keystone XL GIS data is referenced tens of thousands of times in the State Department’s environmental review, yet the data itself is fully redacted,” said Thomas Bachand. “State Department officials claim they do not have the data, but if that’s the case then how can they have possibly considered its environmental consequences? The truth is that the State Department unquestionably possesses and controls this critical information.”

By revealing the precise pipeline route, the GIS layers will clearly show the habitats, private lands, farms, prairies, aquifers, rivers, streams and other sensitive places where the pipeline would be built. The contracts with private entities the State Department hired to prepare environmental reviews for the project will help shed light on the circumstances related to the State Department’s refusal to provide the GIS data.

The plaintiffs are represented in the lawsuit by public interest attorney David A. Bahr.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.3 million members and online activists dedicated to the protection of endangered species and wild places.

FOIA Redacted

After a delay of over two and half years, the Department of State has responded to my request for

“… a copy of all communications, reports, records, emails, and other documents related to FOIA request F-2012-25735, Thomas Bachand, and/or the Keystone Mapping Project.”

This request was made on April 8, 2014 to determine the nature of the department’s denial of my original request for Keystone XL GIS milepost data.

To my surprise the request returned 22 documents totally 54 pages, mostly internal emails. Unfortunately, most of documents are redacted. The remainder are copies of emails I sent to the the DoS or their direct replies to me.

Update 01.2017:

On January 4th I followed up with an email to the DoS and OGIS:

I am in receipt of a DoS response to my FOIA request F2014-06825… The response is comprised, almost exclusively, of 54 pages of internal emails. All are labeled “unclassified,” yet have been fully redacted. Can you explain this?

The DoS responded with an official brush-off:

Mr. Bachand:

You have the right to appeal our determination by writing, within 90 days, to A/GIS/IPS, U.S. Department of State, SA-2, Room 8100, Washington, D.C. 20522-8100. The appeal letter should refer to the case number shown above, clearly identify the decision being appealed, and provide supporting arguments when possible.

Sincerely,

Kellie N. Robinson
U.S. Department of State
FOIA Program Manager/FOIA Public Liaison
Programs and Policies Division
Office of Information Programs and Services

IL FOIA – Map Update: Dakota Access Discharge Wells

With the public release of the Illinois Dakota Access Water Pollution Control Permit, additional Dakota Access pipeline route data has now become available. Added to the route data are Illinois hydrostatic test water discharge locations. More information on these discharge locations can be found in the IL-EPA Water Pollution Control Permit. Below please find a link to the updated Dakota Access Pipeline route map, as well as the IL-EPA Water Pollution Control Permit.

Meanwhile, efforts to obtain route information from the state of North Dakota have been exhausted and have not yielding any route data.

The Dakota Access Pipeline is a proposed pipeline running from the Bakken oil fields in North Dakota to Patoka, Illinois. Dakota Access, a subsidiary of Energy Transfer Partners and Phillips 66, received Federal approval for the project in the form of a Nationwide Permit 12 from the United States Army Corp of Engineers (USACE) in July of 2016. Eminent domain lawsuits have slowed state approvals.

On September 9, 2016, the Department of Justice, the Department of the Army and the Department of the Interior released a joint statement regarding the court case Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, effectively halting construction at Lake Oahe, on the Missouri River in North Dakota. The statement reads:

FOR IMMEDIATE RELEASE

Friday, September 9, 2016

Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers

The Department of Justice, the Department of the Army and the Department of the Interior issued the following statement regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers:

“We appreciate the District Court’s opinion on the U.S. Army Corps of Engineers’ compliance with the National Historic Preservation Act.  However, important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline specifically, and pipeline-related decision-making generally, remain.  Therefore, the Department of the Army, the Department of Justice, and the Department of the Interior will take the following steps.

“The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.  Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time.  The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution.  In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

“Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.  Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions:  (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals.

“Finally, we fully support the rights of all Americans to assemble and speak freely.  We urge everyone involved in protest or pipeline activities to adhere to the principles of nonviolence.  Of course, anyone who commits violent or destructive acts may face criminal sanctions from federal, tribal, state, or local authorities.  The Departments of Justice and the Interior will continue to deploy resources to North Dakota to help state, local, and tribal authorities, and the communities they serve, better communicate, defuse tensions, support peaceful protest, and maintain public safety. 

“In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites.  It is now incumbent on all of us to develop a path forward that serves the broadest public interest.”

16-1034
Office of Public Affairs

Website and maps Copyright Thomas Bachand 2016. All Rights Reserved.

Map: Dakota Access Pipeline SD-IL

UPDATE 11.17.16: This post has been updated to reflect changes in the KMP DAPL route map, as sourced from official route data. It now includes Illinois discharge wells. Also included is a link to the Illinois EPA Water Pollution Control Permit, obtained by FOIA request. All KMP maps are available in KML format for viewing in Google Earth.
————————————-

Crossing the Keystone Pipeline in South Dakota is the Dakota Access Pipeline, a proposed pipeline running from the Bakken oil fields in North Dakota to Patoka, Illinois. Dakota Access, a subsidiary of Energy Transfer Partners and Phillips 66, received Federal approval in the form of a Nationwide Permit 12 from the United States Army Corp of Engineers (USACE) in July of 2016. Eminent domain lawsuits have slowed state approvals. The below Google Earth view shows the official segments running through South Dakota and Iowa, with discharge wells included for Illinois (A complete ND-SD-IA-IL route drawn from hard copy maps in the Environmental Assessment and permit application can be found here).

Website and maps Copyright Thomas Bachand 2016. All Rights Reserved.

Map Upgrade: Keystone Pipeline North to South

In addition to the proposed Keystone XL, the Keystone Mapping Project (KMP) now includes the Keystone Pipeline route map through North Dakota, South Dakota, and Nebraska.

Initially, the KMP had only mapped the proposed Keystone XL, whose southern segment was called the Gulf Coast Extension. As originally envisioned, the Keystone XL route ran through Montana, South Dakota, Nebraska, Oklahoma, and Texas. While only the Oklahoma-Texas Gulf Coast Extension of the Keystone XL was built, its construction in 2014 allowed for the Keystone complex of pipelines to extend north-south across the United States. The Keystone’s northern segment was completed in 2010 and ran from the Canadian border, through North Dakota, South Dakota, and Nebraska. The following year it was connected to the the tank farm in Cushing, Oklahoma via the Kansas Keystone-Cushing Extension. From there, the Gulf Coast Extension completed the Canadian oil’s route to Gulf Coast refineries.

As the KMP published the Cushing-Extension Pipeline route last year, the addition of the Keystone ND, SD, and NE routes now completes the north-south mapping of the larger Keystone Pipeline complex. These new maps show both Keystone XL and Keystone entry points at the Canadian border and follow the two routes to the Gulf Coast.

To view the upgraded maps, visit the KMP map page.

FOIA Update: Clinton Emails Delay ALL DoS FOIA Requests

As an addendum to my December post chronicling the latest delay in my five-year FOIA saga with the Department of State (DoS), the Office of Government Information Services (OGIS) has informed me that the DoS has pushed their estimated response dates back six months to May and July of this year. The OGIS is the governmental body tasked with overseeing FOIA compliance and whose mission it is to resolve disputes between government agencies and requesters.

As readers of this blog know, my FOIA requests for the Keystone XL pipeline milepost data began in 2011. Initially the DoS claimed not to have the data, only to later say that the data did not belong to them. The DoS obviously knows where the milepost data is as it is referenced tens of thousands of times in their environmental impact statements and is required in order to interpret their analysis. We know that the records belong to the DoS because the Keystone XL Master Service Agreement with ERM says so. We also know that the Keystone XL data is in the public domain as Keystone routing data has been made public by the states crossed by the pipeline. The route is also visible on Google Earth.

According to the OGIS:

OGIS’s Mediation Team Lead was able to get a new estimated date of completion for your two FOIA requests. Unfortunately, State Dept. is overwhelmed with the several FOIA lawsuits concerning the former Secretary Clinton’s emails which has resulted in many cases that State had estimated to work and complete by December fall back into their backlog queue.

While it is helpful that OGIS has obtained the status of my FOIA requests from the DoS, I have suggested to them that, considering the DoS’ record of obfuscation and delay, a substantial conversation with the DoS is certainly in order.

It was in 2011, under Secretary Clinton’s tenure at the DoS, that my FOIA adventure began. Secretary Clinton was initially a proponent of the Keystone XL — until September of last year when she declared it a distraction. President Obama rejected TransCanada’s cross-border Keystone XL application shortly thereafter in November of 2015.

Meanwhile, TransCanada has filed two lawsuits for $15 Billion against the United States under provisions in the NAFTA Treaty.

DoS FOIA Delays Doubled: A Bug or Feature?

map of California as an islandIn a recent email updating the status of my FOIA case, the Department of State (DoS) claims that, due to an increase in FOIA lawsuits, FOIA response times have doubled. The response times are already hopelessly behind the 21 days mandated by Congress. The Keystone Mapping Project has been waiting nearly four years for an adequate response to it’s FOIA requests.

Despite the rejection of the Keystone XL pipeline permit by the White House last month, TransCanada has vowed to revive the pipeline at a future date. The DoS’ most recent estimates for my two outstanding FOIA requests were December 2015 and July 2016. For all intents and purposes, another promised deadline has passed. In an October email the DoS blamed an increase of FOIA lawsuits on the inordinate delay:

There has also been a marked increase in the number of FOIA lawsuits filed against the Department in recent years. In FY 2014, the Department experienced a 60 percent increase in FOIA lawsuits, which presented challenges that have impeded the Department’s best efforts to process material quickly. In FY 2015, 59 new FOIA lawsuits were filed against the Department, which is a 103 percent increase when compared to the same time period during the prior fiscal year, and is more than the total number of FOIA suits filed against the Department in the entirety of FY 2014.

This significant increase in the number of FOIA lawsuits is drawing on limited and already over-burdened resources and has necessitated the continued realignment of resources to meet court-imposed deadlines associated with this increase in litigation.

If my FOIA requests are any indicator of the larger trend, it seems that the DoS may have brought this backlog upon themselves by denying requests for dubious reasons. Clearly the Keystone XL pipeline’s mapping data required for evaluation of the Keystone FEIS, SEIS, and FSEIS, as well as the contracts and agreements with the authors of those reports, are the property of and in the possession of the DoS. That the DoS has projected months and years of delay in producing these documents is baffling, particularly now that the Keystone XL has been rejected by the White House. By encouraging lawsuits, the DoS only further degrades FOIA response times.

One has to wonder if such delays are a bug or a feature.

Over the intervening years of the Keystone battle alternative pipelines have been built to skirt the delayed northern segment of the Keystone XL. In 2013 the White House fast tracked permitting of the southern Gulf Coast segment by approving a Keystoe Nationwide Permit 12, thereby sidestepping environmental review on hundreds of pipeline waterbody crossings. Opening of the Gulf Coast segment relieved a petroleum delivery bottleneck to Texas refineries. This not only accelerated tar sands delivery to world markets from alternative pipelines, but also increased midwest gas prices by lowering the cost of delivery of unrefined midwest oil to domestic markets.

Now, just in time for Christmas, more deals have come down the chimneys of the fossil fuel industry. Only a week after Paris COP 2, while you were distracted by the hysteria over wars with fanatics in a desert far, far away (the real ones for oil, the imagined for merchandising), Congress lifted the oil export ban (see KMP posts on the ban). This will further flood world markets with cheap American domestic oil and fracked natural gas.

Saving gas is no longer for patriots, but chumps.

Map: Kansas Confidential

With the mapping of the estimated route of the Kansas leg of the Keystone XL, the Keystone Mapping Project (KMP) is able to offer a complete interactive map of the entire U.S. Keystone XL route from the Canadian border to the Gulf of Mexico.

Download: Keystone XL Kansas Cushing Extension (274 kb) »»

Keystone Cushing Extension. Chapman, Kansas.The Kansas leg of the Keystone XL is officially known as the Keystone-Cushing Extension. The Cushing Extension was completed in February of 2011 as Phase Two of the larger Keystone Pipeline project. Extending 300 miles from Steele City, Nebraska to Cushing, Oklahoma, the Cushing Extension was designed to connect two pipelines from Hardisty, Alberta – the Keystone and the Keystone XL – to Gulf Coast pipelines terminating at oil refineries in Houston and Port Arthur, Texas. The Keystone XL itself was Phase Three of the larger Keystone Pipeline project and originally consisted of two pipelines, the first beginning at Hardisty, Alberta, running through Morgan and Baker, Montana, and meeting the Cushing Extension at Steele City, Nebraska, and the second traveling south from the Cushing Extension in Kansas to Gulf Coast refineries. The Gulf Coast pipelines were later spun off as a separate phase, the Gulf Coast Extension. Only the Keystone XL Pipeline (now Phase Four) from the Canadian border to Steele City, Nebraska remains unbuilt.

With the aid of publicly available aerial photography I have approximated the Cushing Extension route, thereby completing the mapping of the entire Keystone XL Pipeline route from the Canadian-Montana border to Port Arthur, Texas. I am presenting this map on the KMP as a separate add-on map as the Cushing Extension was never part of the Keystone XL environmental reports as commissioned by the Department of State (DoS), including the Final Environmental Impact Statement (FEIS), the Supplementary Environmental Impact Statement (SEIS), and the Final Supplemental Environmental Impact Statement (FSEIS). These reports and their lack of essential mapping data are the primary focus of the KMP’s mapping efforts. Unlike the other maps that comprise this project, the Cushing Extension map remains unofficial as it was not sourced from state, Federal, or company documentation.

For Kansans concerned about the particular hazards posed by the transport of tar sands oil, also known as diluted bitumen, the orphaned EIS status of the Cushing Extension remains controversial. This route was not subject to the same level of environmental review as either of the two larger pipeline projects that it is part of – the Keystone and the Keystone XL.

To some degree, all the maps posted on this site are,in effect, unofficial as it cannot be confirmed if their milepost marker data is the same as referenced in the FEIS, SEIS, and FSEIS. This means that the KMP maps, while the most complete Keystone XL maps available to the public, cannot be correlated with the DoS’ official environmental impact reports and, thus, the reports cannot be properly evaluated for environmental impacts.

Download: Keystone XL Kansas Cushing Extension (274 kb) »»

FOIA Update: Who Owns Keystone XL Map Data?

One freelance journalist for the New York Times told me that he was not surprised that my FOIA requests were being turned down and delayed. An administrator for Al Jezzira said that my FOIA would be granted if I sued. I find it curious that the media accepts FOIA shenanigans as normal and has yet to challenge to any significant degree the obfuscation surrounding the Keystone environment impact statements.

On September 12, 2014 I filed a second FOIA for documentation supporting the Department of State’s (DoS) previous denial of my FOIA request for Keystone mapping data, namely for the third party contracts supporting the DoS contention that the Keystone mapping data is not the property of the DoS. My second FOIA request is below and echoes my previous appeal letter to OGIS, featured in this blog here. From the response to my appeal for expedited processing, it appears that neither this second FOIA request or my appeal for expeditious processing has been read.

In his December 23, 2014 letter (below) denying my request of expeditious processing, Mr. Hackett, Acting Director, Office of Information Programs and Services, states:

Expeditious processing is granted only in the following situations:
(1) Imminent threat to the life or physical safety of an individual;
(2) Urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity and the information is urgently needed in that a particular value of the infonnation would be lost if not disseminated quickly;
(3) Substantial humanitarian reasons; and
(4) Loss of substantial due process rights.

As my letters of September 10, 2014 (below) and October 8, 2014 make clear, my FOIA request qualifies for expedited processing under item #2 above.

This seems to be denial by rubber stamp. The Department of State estimates a completion date of July 15, 2015 for this request.

FOIA Request F-2014-16267

Department of State FOIA Request F~2014-16267, page 1
Department of State FOIA Request F~2014-16267, page 2
Department of State FOIA Request F~2014-16267, page 3
Department of State FOIA Request F~2014-16267, page 4
Department of State FOIA Request F~2014-16267, page 5
Department of State FOIA Request F~2014-16267, page 6
Department of State FOIA Request F~2014-16267, page 7

Response to Appeal for Expeditious Processing

Department of State Appeal for Expeditious Processing rejetion letter
Department of State Appeal for Expeditious Processing rejetion letter

The Keystone XL and the US Oil Export Ban

UPDATE: The 40-year-old US oil export ban was lifted on December 16, 2015. More..


Keystone XL Contruction.  Texas.

For the Canadians, the Keystone XL has been an interesting regulatory waltz.

Those old enough to remember the gas station lines of the 1970’s may recall the economic disruption caused by OPEC’s oil embargo over 40 years ago. In response, Congress passed the Oil Export Ban which brought energy security to America by insuring that oil produced in America stayed in America – with the exception of that oil exported to Canada.

Currently, with Mexican heavy crude production dropping, Mexican exports to Gulf Coast refineries has fallen. The Keystone XL pipeline compensates for the diminished Mexican supply by delivering Canadian diluted bitumen from the Alberta Tar Sands. Since the Jones Act requires that goods transported between US ports be carried on US-flagged ships staffed and owned by US citizen, it is cheaper for the Canadians to ship the refined oil back to Canada on non-US carriers. From there, the refined petroleum is available to world markets where it will fetch the highest price. The round trip makes the costly-to-extract tar sands oil competitive in a tight global market.

So while the Keystone XL has been billed as a jobs program and a safe oil supply for energy thirsty America, the pipeline allows foreign (Canadian) oil to be refined in the US where it can then be shipped to foreign markets (via Canada using non-US labor).

Things got dicey for the costly Canadian oil in December when OPEC refused to limit their oil production, crashing the world price of oil in an effort to drive the heavy grades of oil from Mexico, Venezuela, and Canada out of the market.

Meanwhile, on American soil (where the Keystone XL is projected to increase oil prices in the Midwest by relieving delivery bottlenecks and, thus, open the area to market-priced oil) the OPEC play has resulted in cheap gas and tighter production margins nationwide. In the end, it may be the market, and not climate concerns, that kills the Keystone.

Oddly, though, it was Citicorp who lifted North Dakota and Gulf Coast shale oil producers (aka frackers) from this Christmas season OPEC-induced funk when they made a little-noticed New Year’s Eve announcement stating that the Obama Administration’s Commerce Department would allow ultralight crude exporters to sidestep the export ban. Why the White House didn’t make the announcement themselves is unknown but, evidently, with a shale oil glut on the horizon, the drilling boom may be coming to an end unless other markets can be found.

Masked by the OPEC’s low prices is that the costly extraction of tar sands and shale oil is a clear indication that we’ve reached the end of cheap, easy oil. If energy security is truly an American priority, the export ban is more pertinent today than 40 years ago.

Dept of State Parses “all” to Avoid Keystone Disclosure

In a startling display of regulatory capture, the Department of State (DoS) revealed that its refusal to release data essential to the reading of its Keystone XL environmental reports is based on a bizarre interpretation of a phrase in a 3rd party contract. Their conclusion that the Keystone XL mapping data contained in their reports is not their property and, thus, cannot be shared with the public, comes from its own narrow interpretation of a contract between TransCanada and ERM, the firm tasked with writing the reports, and not from any explicit agreement with TransCanada.

As you may recall, in May of this year, after two years of delay, the DoS denied my Freedom of Information Act (FOIA) request for the Keystone XL mapping data saying that the data was not an “agency record” (read “Dept of State Defers to TransCanada“). I appealed the matter to the Office of Government Information Services (OGIS), the governmental agency tasked with assuring compliance with FOIA. After discussing the matter with DoS, OGIS stated in their letter of denial to me that:

TransCanada made its intention clear that it retained all rights to
that data and placed limitations on its use.

The Master Service Agreement entered into between TransCanada and ERM for purposes of the NEPA review contains a provision that reads as follows:

“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 Contractor pursuant to this Contract or any Change Order shall be the absolute property of the DOS.”

According to Ms. Manheim, this provision does not establish State Department control over the information in question. The GIS mapping data you seek was developed by TransCanada for its own use. Although the data was made available to ERM for the purpose of ERM’s NEPA review, this data was not “developed by, through or for the Contractor.” As such, it is State’s position that the records you seek do not fall within the ambit of this provision.

In my reply to the OGIS, I felt compelled to define the word “all” before pointing out the self-contradiction in the DoS position:


Clearly, the GIS data were ‘developed by, through or for the Contractor,’ because without the data, the Contractor would have been unable to perform their contracted NEPA review, just as the public has been unable to review the FEIS, SEIS, and FSEIS without the data. It is disingenuous at best for TransCanada and DoS to claim they are going to build, operate, and regulate a pipeline according to federal and state law without telling the public where it is. The only goal achieved by TransCanada, ERM, and DoS in not releasing the GIS data is that evaluation of the project’s FEIS, SEIS, and FSEIS is made impossible. Certainly, such obfuscation is not compliant with FOIA and defeats the whole purpose of the public comment period.

As the third-party agreement between TransCanada and ERM is the only agreement DoS can point to, the determination that “TransCanada made its intention clear…” was made solely through misinterpreting the clause “developed by, through or for the Contractor.” By reading the clause as exclusive instead of inclusive and by parsing “all” to mean something other than all, the DoS effectively absolves itself of any regulatory oversight of anything contained in their reports.

The OGIS letter of denial:
KMP OGIS letter, page 1
KMP OGIS letter, page 2
My full response to the OGIS:
KMP OGIS letter, page 1
KMP OGIS letter, page 2
KMP OGIS letter, page 4

Full text:

Dear Ms. Nisbet,

Thank you for your review of the Department of State’s (DoS) denial of my FOIA request F-2012-25735. The DoS response to your inquiry is unsupported and contradictory and suggests that the DoS remains out of compliance with FOIA.

Your letter states that

…TransCanada did make certain Geographic Information Systems (GIS) data available to State while it was conducting a National Environmental Policy Act (NEPA) review, the corporation placed limits on the use of that data; it is State’s position that the records you seek cannot be considered “agency records.

TransCanada and the DoS seem to have an agreement surrounding the proposed Keystone XL Pipeline, yet, the agreement and to what extent it relies on third party agreements between TransCanada and its contractors is unknown. So while the DoS claims the GIS data is not an “agency record” per an agreement with TransCanada, we have not seen this agreement nor, perhaps, other agreements that might define “agency record.” These agreements are the subject of my current FOIA F-2014-16267.

The one agreement we do know of is that between TransCanada and ERM, the firm that produced the Keystone XL Pipeline Final Supplemental Environmental Impact Statement (FSEIS).

TransCanada – ERM Master Services Agreement

The Master Services Agreement (MSA) between TransCanada and ERM states under Section 2g that:

Confidential Information does not include information that is: (ii) generally known to the public, as of the date and to the extent that such information becomes so generally known;

As your letter also cites, the MSA also states under Section 24.1 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.

Keystone XL Pipeline Route Data is Public Information

The proposed Keystone XL Pipeline route is not confidential and qualifies under the MSA as generally known to the public. Basic route information has been made public by the Montana Department of Environmental Quality (MDEQ), the South Dakota Public Utility Commission (SDPUC), the Nebraska Department of Environmental Quality (NDEQ), and the Railroad Commission of Texas (TxRRC). The Federal Energy Regulatory Commission (FERC) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) both consider pipeline routing data to be in the public domain. Once constructed, the route will be marked in the ground with stakes and will be visible everywhere in the world via Google Earth. The United States Army Corps of Engineers and the United States Fish and Wildlife Service have both released Keystone GIS data to the public. Clearly, the Keystone route is generally known to the public and is not intended, by either state or federal regulators, to be kept secret from the public.

Essential Data, by definition, is an Agency Record

The MSA is very clear when it states that “All original drawings, plans, specifications…” are agency records. “All” means all – everything used by the contractor to create the report. The phrase “developed by, through or for the Third-Party Contractor,” augments “all” and is intending to include documents, not exclude them. If the data is integral to the creation of the report, referenced throughout the report, included in the report, and essential to the reading of the report, it is part of the report and, as such, an agency record.

The GIS mapping and route data is intended to be included directly in the environmental reports issued by the DoS, including the Final Environmental Impact Statement (FEIS), the Supplemental Environmental Impact Statement (SEIS), and Final Supplemental Environmental Impact Statement (FSEIS). For example, in the 2008 Keystone XL FEIS:

  • Volume 1, Environmental Reports. Section 3: Affected Environments: This section contains 23 tables referencing thousands of milepost markers and/or waterbodies and distances based upon them, yet no where in the report are the actual longitude and latitude of the milepost markers given.
  • Volume 2, Pipeline Aerial Route Sheets: This section contains over 1,000 maps, yet all have had their geolocation information removed, including longitude and latitude, rendering them meaningless as maps.
  • Volume 3, Powerline USGS and Aerial Route Sheets: This section contains approximately 120 USGS topographic maps containing references to Keystone XL milepost markers. The maps have had their geolocation information removed, including longitude and latitude, rendering them meaningless.
  • Volume 4, USGS Location Pipeline Route Sheets: This section contains approximately 400 USGS topographic maps containing references to Keystone XL milepost markers. The maps have had their geolocation information removed, including longitude and latitude, rendering them meaningless.
  • Volume 5, Waterbody Crossings: This section contains hundreds of tables listing nearly 10,000 waterbody crossings, none of which are geolocated.

By no means is this a complete list of the documents containing incomplete and missing GIS references. The cited volumes appear to be incomplete and most of the volumes (Vol 6-18?) appear to be missing altogether. The subsequent Draft SEIS, SEIS, and FSEIS reports published by the DoS suffer similar data gaps.

It is obvious that without GIS mapping data the Keystone XL Pipeline reports published by the DoS are meaningless and unreviewable by the public, which is supposed to be allowed to comment on them. DoS’ position is nonsensical. In your letter you state:

The GIS mapping data you seek was developed by TransCanada for its own use. Although the data was made available to ERM for the purpose of ERM’s NEPA review, this data was not ‘developed by, through or for the Contractor.’ As such, it is State’s position that the records you seek do not fall within the ambit of this provision.

This statement is self-contradictory. Clearly, the GIS data were ‘developed by, through or for the Contractor,’ because without the data, the Contractor would have been unable to perform their contracted NEPA review, just as the public has been unable to review the FEIS, SEIS, and FSEIS without the data. It is disingenuous at best for TransCanada and DoS to claim they are going to build, operate, and regulate a pipeline according to federal and state law without telling the public where it is. The only goal achieved by TransCanada, ERM, and DoS in not releasing the GIS data is that evaluation of the project’s FEIS, SEIS, and FSEIS is made impossible. Certainly, such obfuscation is not compliant with FOIA and defeats the whole purpose of the public comment period.

Unsupported and Contradictory Claims by DoS and OGIS

The facts do not support the DoS’ claim that “TransCanada made its intention clear that it retained all rights to that data and placed limitation on its use.”

  • The DoS Keystone XL Pipeline documents do not contain any record of TransCanada stating this intention.
  • The DoS Keystone XL Pipeline documents do not contain any document or agreement between the DoS, TransCanada and/or other third parties directly addressing the use of GIS data.
  • The DoS relies on a convoluted and nonsensical reading of the MSA between TransCanada and ERM to exclude otherwise public records from review.

The DoS has obfuscated the facts and has not been forthcoming in its response. My concern is that if this matter cannot be resolved administratively, litigation may become necessary. I urge you to reconsider your denial of my case and make every effort to clarify these matters with DoS, bring them into compliance with FOIA, and ensure the integrity of the public review process.

Sincerely,

Thomas Bachand

Map Update: The Sand Hills in WY, CO, SD, NE, & KS

The Nebraska reroute of the Keystone XL was done in large part to avoid the Sand Hills, an environmentally sensitive area that encompasses parts of Wyoming, Colorado, South Dakota, Nebraska, and Kansas. This KMP Google Earth add-on map, sourced from a soil and water map by Professor Xiaodong Miao with the Illinois State Geological Survey and Prairie Research Institute at the University of Illinois at Urbana-Champaign, shows the new route well within the Sand Hills area.

For more maps, see the KMP Downloads and Links page.

FOIA Appeal Finding: Dept of State Defers to TransCanada

After nearly a one-year FOIA appeal process, the Department of State (DoS) has reversed its earlier finding that it did not have Keystone XL mapping data and now has revealed that it is withholding the pipeline’s routing data at the request of TransCanada, the company building the project.

In March of 2012 I filed a Freedom of Information Act (FOIA) request with the DoS for the milepost marker and GIS route data missing from the Keystone XL Final Environmental Impact Statement. Without this data, one cannot make sense of the report’s analysis. Met with delay, I began researching basic route data from a variety of sources and over the next two years compiled the only publicly-available interactive map of the pipeline from Montana to the Texas Gulf Coast. During this time, the DoS released two additional reports, the Supplemental Environmental Impact Statement and the Final Supplemental Environmental Impact Statement, both of which further redacted mapping data.

It wasn’t until June 2013 that the DoS responded to my initial FOIA request, stating that “Neither Cardno ENTRIX nor TransCanada ever submitted GIS information to the Department of State, nor was either corporation required to do so.” TransCanada disputed this finding.

Perplexed by how the DoS could make an environmental analysis of the Keystone XL without mapping data, I appealed the finding to the DoS Appeals Review Panel. On May 15, 2014, after 10 months of further delay, the panel issued its finding, stating that:

TransCanada made certain pipeline mapping data was available to the Department’s third-party contractor for the contractor’s use solely in connection with the National Environmental Policy Act review of the proposed Keystone XL Pipeline Project. TransCanada made clear that it retained all rights to the data and placed express limitations on its use. As a result, the Department lacks the requisite control over these files for them to be considered ‘agency records’ for purposes of the FOIA.

In other words, the DoS will not release mapping data essential to evaluation of their Keystone XL environmental reports, as the foreign corporation building the project wishes that it remain private. Unspoken is that the third-party contractors who authored the DoS reports are leading consultants to the oil and gas industry and may be susceptible to divided loyalties. Typically, where conflicts of interest may arise, independent review is encouraged. Yet, in this case, by withholding data the DoS has effectively shielded the 2,000 mile diluted bitumen pipeline from open and independent review.

This lack of transparency has plagued the Keystone XL. When I approached the Federal Energy Regulatory Commission in 2012 regarding TransCanada’s claim that Keystone XL route data was secret due to National Security concerns, I was told that this was certainly not the case as, once built, the buried pipeline will be marked with stakes in the ground. To expedite approval of the southern Gulf Coast segment of the Keystone, the White House fast-tracked the process through the United States Army Corps of Engineers (USACE), effectively sidelining the Environmental Protection Agency from the permitting process. It was only after USACE issued a Nationwide Permit 12 – obviating independent review of over 600 waterbody crossings, that river, stream, and wetland data was made public.

If, as proponents claim, the Keystone is of such great importance, why are we not engaged in a more educated discussion? When journalists, national non-profits, landowners, Native American tribes, academics, and activists are contacting me, a photographer, for routing information, the government’s entire environmental review methodology and regulatory regime is called into question.



Map Update: Keystone XL North

With the release of the Final Supplemental Environmental Impact Statement (FSEIS) by the Department of State (DoS) on January 31, 2014, one would think more clarity would have been brought to the Keystone XL route and the pipeline’s impacts. In January of 2013, I was told by the DoS that the agency had milepost data to 1/10th of a mile and that updated maps and waterbody tables would be included in an upcoming report. Now a year later, the report has just been released and, not only is the milepost data still missing, but updated route maps have been redacted “as sensitive information not for public distribution.” (Appendix B,C,&D). The Environmental Report’s author, Exponent, does not seem to be aware that both PHMSA and FERC consider pipeline data public and that the pipeline route will be easily located once construction begins. Upon completion, marker stakes will caution construction crews to the buried pipeline. The route maps from the 2008 FEIS and 2009 SEIS, sans latitude/longitude data, remain online.

Montana’s Department of Environmental Quality (MDEQ), South Dakota’s Department of Environment and Natural Resources (SD DENR), and the South Dakota Public Utility Commission (SD PUC) all claim that they do not have the most current route data. TransCanada will submit route data to these agencies after the White House approves the project and forty-five days before construction begins. Evidently, at that point the data ceases to be “sensitive.”

According the South Dakota Keystone Public Liaison officer – an appointee of the the SD PUC who is paid by TransCanada to deal with landowner issues, since 2009 many groups have been visiting South Dakota to survey the route, including Native American tribes, biologists, archaeologists, and engineers, related and unrelated to TransCanada. This indicates a much broader interest in the route. So why aren’t state and Federal agencies making this GIS data publicly available?

Now, courtesy of a Freedom of Information Act (FOIA) request, the US Fish and Wildlife Service has filled in in many of the gaps by releasing the August 2012 centerline map of the Keystone XL. For the Montana section this newly released route falls within the MDEQ’s currently publicized 500 foot corridor. The Nebraska segment is identical to the revised centerline route released in the May 1, 2013 SEIS. In contrast, the South Dakota route shows nearly 30 changes. Route changes can be cross referenced to tables on the DSEIS (8 MB) and FSEIS (8 MB).

FOIA Update: Appeal Hearing Delayed for Fifth Time

The December appeal hearing concerning the Department of State’s response to my 2012 FOIA request for Keystone XL GIS data never took place… nor did November’s, nor October’s. As you may recall, in June of 2013 the DOS responded that they had neither requested nor received GIS data for the Keystone XL pipeline. Next, my appeal was scheduled to be heard in January, which quietly expires this weekend. Now in our sixth month of delays, the 21-day appeal response time limit stipulated by the FOIA statute has long passed.

According to the DOS, appeal cases are internally reviewed prior to being brought before the appeal panel. The appeal panel is made up of outside consultants who are paid to hear the appeals. Due to budgetary constraints, I was told, the DOS has not been able to bring the panel together (as you may recall this time period coincides with the government shutdown and other such austerity). So it has appeared that throughout the Fall my case has not gone to appeal, not because it has not been reviewed, but because simply the panel has not met.

Yet, this line of explanation evaporated yesterday when a DOS official responded to my latest inquiry. “Your request is still under review and did not make it through in time for the Appeals Review Panel. The new estimated completion date is May 2014.”

As the DOS is currently working on a long-anticipated, revised environmental impact statement for the Keystone XL, one would think they could readily determine whether they had the GIS data or not. It’s not as if they have to look very far to find it. In the least, it’s a phone call to TransCanada away. As I doubt I’ll be seeing this data before the release of the revised EIS, those eagerly awaiting the revised report shouldn’t hold their breath.