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.