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.

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.”

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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.
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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 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.

Keystone XL Google Earth Map Updated

The Keystone Mapping Project’s Google Earth view has seen a number of updates recently, including expanded informational windows, addition of the 2,000 foot Nebraska routing corridor, and the correction of a number of rendering errors.

The new file can be found on the Keystone XL Google Earth Downloads page.

Please consider making a donation to this project as these maps and resources come to you at considerable expense in time, effort, and expertise.

Keystone XL: There’s an app…

KXL Mobile Webapp.  Optimized for iPhone.Contemplating our changing landscape, energy policy, or where that benzene smell is coming from? The Keystone Mapping Project webapp takes the nationally recognized multimedia and photography project on the road, examining land use and climate change in America through an exploration of the Keystone XL. The controversial pipeline has become emblematic of our inability to reconcile world demand for fossil fuels and the environmental imperatives imposed upon modern civilization. Optimized for the iPhone, this mobile app features fine art photography, the pipeline’s only interactive route map, and the latest Keystone news and blogs.

Bookmark for easy access:

FOIA Update: Non-expeditious Denial of Expeditious Processing

On June 26, 2012, I wrote about my appeal of the Department of State’s (DOS) Denial of Expeditious Processing of my FOIA request for GIS route information. At the time, the United State Army Corps of Engineers (USACE) was considering a Nationwide Permit 12 for the Gulf Coast segment of the Keystone route, thereby bypassing EPA review of the pipeline’s waterbody crossings. As my appeal noted, without public disclosure of the milepost and waterbody GIS data, approval of the Gulf Coast Keystone route was bypassing public review:

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.

USACE approved the Gulf Coast Segment in early August of 2012 without fully disclosing the route or waterbody crossings. Eventually, an environmental non-profit forwarded me a number of TransCanada documents obtained through the FOIA process that contained the waterbody data.

It was not until January of this year that I discovered that, on July 12, 2012 (nearly a month before USACE issued its permit), the DOS had written – yet failed to send – me a letter denying my appeal for the expeditious processing of my FOIA request for GIS routing data. Incredibly, in their letter the DOS claims that this case is not eligible for expedited processing as it does not involve “Loss of substantial due process rights” – this despite the lack of transparency in DOS and USACE processes and the eminent domain proceedings being brought against Texas landowners by TransCanda, a Canadian company. The letter is below.

As the one year anniversary of my FOIA request approaches, I have made nearly a dozen calls to the DOS, speaking to numerous individuals in an effort to determine the disposition of my request and, for that matter, whether the DOS even has the GIS route data. I received a polite email from a gentleman at the DOS the other day saying that my request would be addressed shortly, to please stop calling, and to contact him with any questions. He didn’t include his number.

Department of State Denial of Expeditious Processing, Page 1
Department of State Denial of Expeditious Processing, Page 2

Tracking Keystone Eminent Domain Et Al

Update Nov. 26, 2012: The first installment of the Eminent Domain Map can be found on the KMP Google Earth views, the Keystone 2D Complete map, and this custom Google Map view. Eminent domain filings are shown by county. If you have eminent domain or related information to share, please contact the Keystone Mapping Project »


TransCanada CEO Russ Girling says that the company “partners” with 60,000 landowners on daily basis. One also hears, though, of landowners being strong-armed by the company into cooperating, through eminent domain or the threat of legal action. Others feel they’ve been misled by the company.

I’m soliciting submissions for markers on a new KMP map view: Keystone Eminent Domain Et Al. Location markers will be created for those who send me:

If you’d like to remain anonymous on the map view, please indicate so in your email and include the longitude/latitude of the nearest town or municipality. I will still need your contact information so as to verify your submission and insure the integrity of the map. In any case, your contact information will NOT be included in the map unless requested, nor will it be shared with anyone. Anonymous submissions will not be considered.

To send a submission: