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.

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.

TransCanada Contradicts DOS

The mysterious Keystone route. Now you see it, now you don’t.

As reported earlier on this blog, in response to my April 2012 FOIA request for routing data for the proposed Keystone XL pipeline, the Department of State (DOS) revealed in June of this year, for the first time, that TransCanada was not required to submit the data and the DOS never required or requested that it be submitted, despite the fact that it is referenced throughout the Final Environmental Impact Statement (FEIS) and Supplemental Environmental Impact Statement (SEIS). I asked TransCanada’s press office if this were true and was told by email,

“It is our understanding that the DOS has been given the most current route information. If there is additional information they require, we will be happy to provide that to them.”

As my follow up emails and telephone calls to TransCanada went unanswered, I was unable to determine who at the DOS received the information and when they received it.

So, the bigger questions remain:

How does the the DOS fulfill it’s regulatory duty if it does not have the route data, has it but can’t find it, or worse, doesn’t even know whether it has or doesn’t have the data?

If the DOS is not reviewing the pipeline’s Final Environmental Impact Statement (FEIS) and Supplementary Environmental Impact Statement (SEIS), who is?

With these questions unanswered, how is the public supposed to have confidence that the DOS has performed adequate due diligence before exercising its critical authority on such a highly controversial and dangerous pipeline project, particularly when our national security is at risk?

The controversy and challenges facing the Keystone XL in the state of Nebraska offer insight into these questions.

The pipeline permit issued by the Nebraska Department of Environmental Quality (NDEQ) authorizes a routing corridor of 2,000 feet, a zone over 1/3 of a mile wide in which TransCanada can build their pipeline. Yet, while TransCanada has a 110-foot center-line route selected within this corridor, the actual route within the corridor remains a corporate secret – even to the NDEQ, who says that they do not have rights to TransCanada’s information. This jibes with the DOS’ claim that that they themselves do not possess the routing data.

More astonishing is the experience of Nebraska landowners. According to Jane Kleeb of Bold Nebraska, TransCanada will not reveal the route across a landowner’s property unless that landowner first signs a contract for the pipeline easement in perpetuity.

Meanwhile, TransCanada claims that only 10-30% of Nebraska landowners whose land is crossed by the proposed pipeline do not support the pipeline. Kleeb points out that this can’t possibly be true since 35% of landowners are members of the Nebraska Easement Action Team (NEAT), all of whom refuse to negotiate easements with TransCanada unless the state gets involved. According to NEAT, “no one in Nebraska government in over five years – not your Governor, Attorney General, NDEQ, or Legislature – evaluated the Easement Agreement, the document TransCanada proposes to use with landowners as the controlling terms for how your land will be affected.” As NEAT does not represent all landowners in opposition, Kleeb thinks the opposition numbers are closer to 50%.

In their email to me, TransCanada’s press office went on to say:

In fact, the pipeline route is placed on the National Pipeline Mapping System, which allows any first responder to call up information on any pipeline in their jurisdiction (pipeline, route, product) so that they have current and correct information to assist them in carrying out their duties. This is not new and is a long-standing practice because pipelines are deemed to be critical infrastructure so some information may not be part of a publicly available document to protect the safety of our people, landowners and the communities where these lines run and these important assets.

In other words, we’ll tell you where it is once we build it – as you’ll be cleaning up the mess.

The Keystone Fiction

Recently, a reader asked me about an existing right-of-way visible on Google Earth that follows parts of the planned Keystone XL corridor. In some areas the projected route can be seen to directly overlay this visible right-of-way; at others it is adjacent or diverges sharply. Similar convergences and differences can also be seen in the official data. The multiple official sources I use typically align, but at times, they don’t. What accounts for this?

We can only conjecture explanations for what we are seeing:

  1. Is TransCanada following an existing easement when possible? Perhaps their leases with landowners allow them to put in multiple pipelines. Some states, like Montana, regulate pipelines stringently, others, like Oklahoma, appear to hardly regulate at all.
  2. Is TransCanada widening an existing easement?
  3. Does TransCanada only survey the route when they’re on the ground, ready to dig? The FEIS shows no survey procedures. Is the route created on a computer and no one actually steps on the ground until they show up at your property line – then they’ve got a 500 foot easement so they can adjust for real-world conditions? The regulatory disparities between various state agencies are broad and, again, the FEIS does not specify. Again, Montana stipulates surveying. Oklahoma is a black box.
  4. Are the FEIS maps and data tables accurate?
  5. All of the above.

Unfortunately, the incomplete nature of the FEIS and the opacity of the review process have made it impossible to verify the report’s veracity and determine the environmental impacts of the pipeline. The KMP primarily focuses on the absence of route data. Yet with other glaring deficiency in the FEIS coming to light, such as TransCanada’s inability to draw up an Emergency Response Plan and the paltry third-party insurance liability of $200 million, one has to wonder what else is remiss with the FEIS.

That’s the thing about environmental impact statements: initially they’re written by those with an interest in the project’s completion. They should be considered a work of fiction until proven otherwise. In the case of the Keystone XL, both the FEIS and the SEIS were produced by companies that had previously worked for TransCanada, Cardo Entrix and ERM, respectively. The Department of State is okay with this. While legal challenges can bring transparencies to an EIS, in the case of the Keystone XL Gulf Coast segment, landowner lawsuits and challenges by the Sierra Club were stymied and EPA review prevented when the US Army Corps of Engineers approved a Nationwide Permit 12 for the project.

The challenges to the Keystone XL are highlighting the business-as-usual approach to pipeline approval. The one-size-fits-all approval process does not seem to take into account the type of petroleum being transported by the Keystone, the Canadian ownership of the pipeline, nor its intended export to Asian markets.

We see this opacity being underscored in last week’s bitumen pipeline rupture in an Arkansas community. Was the community aware that they were living adjacent to a diluted bitumen pipeline? Was Exxon’s mitigation plan cleared with authorities? Why is Exxon controlling journalist access, including the airspace above the spill? Why aren’t companies transporting diluted bitumen contributing to the government’s clean-up fund, the Oil Spill Liability Trust Fund?

I suppose the greater question is: why are pipeline supporters so afraid of the facts?

Map: Gulf Coast Waterbody Crossings – Completed

The Keystone Mapping Project’s Google Earth View has been updated with the waterbody crossing data (for both the pipeline and the access roads) from the Ft. Worth Office of the United States Army Corp of Engineers. This information was obtained by Freedom of Information Act request from USACE – after they had begun approving construction.

Stream, river, and aquifer contamination is a major concern with the Keystone XL due to the toxic chemicals mixed with the tar sands oil during transportation. You can read more about it here.

The new Keystone Mapping Project Google Earth view can be downloaded here:

or viewed online here (plug-in required).

Map: Gulf Coast Waterbody Crossings (partial)

As the disasterous Kalamazoo spill highlights, the Keystone XL’s waterbody crossings pose an extreme environmental threat. Yet, while the Department of State’s (DOS) Final Environmental Impact Statement (FEIS) does identify the pipeline’s waterbody crossings and references them by milepost (MP) marker, neither the DOS, TransCanada, nor the United States Army Corps of Engineers (USACE) will release the location data for the MP markers.

In mid-July that changed somewhat when environmental groups obtained, through Freedom of Information Act (FOIA) requests, Gulf Coast waterbody crossing data for the Tulsa and Galveston District offices of USACE. Missing still is data from the USACE Fort Worth District Office. USACE offices only release the data after the offices have approved TransCanada’s application for a Nationwide Permit 12 (NWP 12). The NWP 12 allows the company to sidestep case-by-case waterbody environmental review by giving blanket approval for the entire route. While it is disheartening to see the pattern of obfuscation established by TransCanada and the DOS, adopted by USACE, it’s not surpising.

Construction of the Keystone’s Gulf Coast route began on Monday. The only obstacles remaining for TransCanda are a few landowner lawsuits and the Sierra Club.

The Keystone fight has also brought into question the use of eminent domain by private companies. One has to wonder how many landowners would have challenged TransCanada more forcefully had they not been bullied by eminent domain proceedings.

Updated to show the Waterbody Crossings, the new Keystone Mapping Project Google Earth view can be downloaded here:

A 2D map may be viewed here.

FOIA Update: Dept of State Stonewalling Public Review

I have been told that the main obstacle to my Freedom of Information Act (FOIA) request with the Department of State (DOS) for the milepost data for the Keystone XL is that the information is “politically sensitive.”

To say the least, this stonewalling is disconcerting. A foreign corporation is abusing common carrier status to declare eminent domain on the property of American citizens so that it can build a diluted bitumen pipeline through America’s heartland and expedite delivery of its product to world markets. While this project will threaten our groundwater, waterways, and general health, increase gas prices and world dependency on oil, and further forestall a necessary shift to a green economy (Read more: TransCanada: “Keystone XL National Security Risk”), President Obama is expediting pipeline construction and has remained mute on global warming.

Whose interest is the White House and the DOS representing?

On April 12th I filed a FOIA request for the release of the milepost location data (which, according to both federal and state agencies, is public information) for the proposed Keystone XL pipeline. As FOIA requests with the DOS can take five to twelve months, I requested expedited service. This part of my request was rejected, I appealed, and am still waiting to hear back:

This email is to appeal your Denial of Expedition of FOIA request F-2012-XXXXX.

As you must be aware, the proposed Keystone XL pipeline, which will stretch through the American heartland from the Canadian border to Port Arthur, Texas, is of great interest to communities throughout the country. The release of the pipeline’s milepost (MP) marker longitude and latitude data and GIS information is of urgent importance for the following reasons:

1. MP Location Data is Required by the FEIS.
The MP location data is referenced throughout the Department of State’s Keystone XL FEIS. Without this information one cannot make a proper evaluation of the original Keystone XL FEIS, the revised Keystone application submitted on May 4, 2012, the Gulf Coast Route now being considered by the Army Corps of Engineers, or the entire project’s environmental impacts. In fact, the absence of this key reference data calls into question the completeness of the FEIS and the review process.

2. MP and GIS Location Data are Public Information
Federal and state agencies consider oil and gas pipeline GIS data to be public information. Such agencies include the Federal Energy Regulatory Commission (FERC), the US Department of Transportation Pipeline and Hazardous Materials Safety Administration (PHMSA), the Texas Railroad Commission, the Montana Department of Environmental Quality, and the South Dakota Department of Environment and Natural Resources. By withholding this information and requiring a FOIA request, the Department of State is unnecessarily hindering the public review process.

3. Public is Being Denied Due Process
Despite the denial of the Presidential Permit, construction of the Keystone XL is currently underway. TransCanada, a foreign company, has been accused of using dubious means to gain right-of-way to private property, including the declaration of eminent domain. Currently, TransCanada is seeking expedited permitting by the Army Corps of Engineers for the Gulf Coast route. The Army Corps has promised to reply by June 26. While individual property owners are certainly aware of the pipeline’s presence, the wider community and citizens around the country are unable to make a proper review of the project without the MP and GIS data. To release key data only after landowners have undergone substantial hardship or the project is completed, would be to deny landowners, communities, and the public due process.

4. Keystone Mapping Project Disseminates Routing Data to the Public
My Keystone Mapping Project (KMP: http://keystone.steamingmules.com) will incorporate the MP and GIS data into its current online maps. The KMP, as the most comprehensive source of routing data for the Keystone XL, is referenced by major news organization, such as NPR, and viewed widely by landowners, researchers, educators, and the public.

Clearly, there is a compelling need for an immediate release of the Keystone XL MP and GIS data. Not only is the data required for proper review of the project but, with the Army Corps of Engineers permitting date for the Gulf Coast route less than three weeks away, it is imperative that accurate MP and GIS data be released immediately. The American public deserves the opportunity of both review and oversight.

As I post this, the Army Corps of Engineers has begun approving the necessary permits for the Gulf Coast route, thus maintaining its poor record on environmental stewardship. Even so, considering the effort I’ve expended in obtaining a data file that resides in the public domain from the DOS, the 45-day permit turnaround by USACE for a construction project that crosses two states is impressive.

Move along. There’s nothing to see here.