FOIA Update: Keystone Kabuki

Six Geishas IV by Muldoon Elder

Six Geishas IV. Oil on Masonite by Muldoon Elder.

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 in 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.

Map: Trail of Tears and the Keystone XL

A new KMP supplementary Google Earth map is now available for late 19th Century Ponca and Pawnee migrations, including the Trail of Tears. This map shows the relationship between these historic, sacred routes and the Keystone XL corridor.

While the First Peoples of Canada have become very vocal in the tar sands pipeline discussion, less visible are Native Americans. Of particular note is the sacred “Trail of Tears” and other Ponca and Pawnee migration trails which bisect the Keystone XL on their way from Nebraska to Oklahoma.

More information on the Ponca Tribe can be found here. Additional Ponca history, including another Google Earth map and history on Ponca Post-Columbus migrations, can be found here.

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:

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: https://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.