Thursday, March 14, 2013

Trans Canada's Humpty Dumpty wrote Obama's environmental review of Keystone. Nothing unusual about it, sadly.

Brad Johnson writes that the Environmental Impact Statement giving a fairly decent review was written by, wait for it, a consultant hired for that purpose by Trans Canada, the applicant for the permit.

Conflict of interest, you say? Humpty Dumpty says a conflict of interest is what he says it is and no more, and in the best Washington DC scandal sense, my sense is that this is legal.

I should qualify that by saying I don't know federal environmental review (NEPA) law as well as California's equivalent (CEQA) law, but this would pretty much be allowed under California law, and CEQA is usually stronger than NEPA. Here I am banging on about this, nearly 6 years ago:

In most Bay Area cities, when a developer applies for a permit that requires the city to do environmental review, the developer pays a fee and the city then uses the fee money to hire expert consultants to prepare the environmental report. San Jose, by contrast, allows the developer to directly select and hire the environmental consultants who prepare an administrative draft of the environmental report. While San Jose may then modify the administrative draft, the developer-controlled draft is biased to play down the impacts. The direct expertise is in the hands of people loyal to the developers, not to the City or to a neutral evaluation process.
While most Bay Area cities have moved away from this, San Jose still hasn't, and it's still legal.  Almost as embarrassing, my own water district has the same bad policy (it's on my to-do list and we almost never issue complicated permits for private parties anyway, so there). Now under CEQA, an agency can get in theoretical trouble if it can be shown they rubber-stamped the document they received from the developer's consultants, but you know that happens anyway, and the bias will survive regardless. I'm not sure what the standard is under NEPA and whether they've met it, but given the scrutiny, they probably have.

There is another check on the developer bias - an environmental report can be challenged in court, and going too far in one direction will make it legally vulnerable. By express legal design, however, the courts favor agencies over plaintiffs for the more extensive environmental reviews, and many reviews never get challenged by anybody.

There's been some noise in California about "reforming" CEQA, mostly to make it easier to get projects done. I'm not adverse to some deals on it, but the type of reform I'm talking about hasn't seen much discussion.

For a contrary opinion to the idea that Keystone won't have much of a climate effect, read NRDC.


Miguelito said...

It's not unusual at all for this under federal law and there are strict rules about how it's done.

Essentially, TransCanada foots the bill, but the contractor must follow federal law and regulations.

I'm not saying this is the brightest way to do this, but it requires quite a few experts (pipeline engineering and environmental science) that the State Department may not have on its payroll to spare.

Anonymous said...

"The Obama Pipeline"
-- by Horatio Algeranon

Not a Keystone
But a sinker.
Not a winner
But a clinker.

"Obama's Pipeline"
They will call it
When disaster
Does befall it

"Worst tar spill
In history"
Will be
Obama's legacy.

If you think this is just Horatio's opinion, watch former Special Advisor for green Jobs to Obama, Van Jones who talks about the Enbridge Spill* and also dispels several common myths perpetuated by Keystone shills, prominent among them, the idea that Keystone will have "no significant impacts" (a claim that would be laughable if the actual impacts were not likely to be so deleterious)

*"The US Environmental Protection Agency (EPA) ...estimated the spill to be in excess of 1 million US gallons...The cleanup expense by summer 2012 had totalled $765 million" -- from wikipedia

Gator said...

In my city (in your district) the planning department simply declares every project exempt from CEQA on one pretext or another. I don't see how CEQA is any impediment at all to development. It has no enforcement, no agency oversight. It is left to local government, and the smaller the government, the easier they roll over. The only possible way to challenge a project is in court. Not the easiest thing to do for an unorganized citizenry.

Susan Anderson said...

Thanks Horatio, not only a nice ditty but some real info. In my salad days I helped with an EIS - and the funding is as stated.

So what does one do? He who pays the piper gets to call the tune.

Unfortunately this particular piper is a nasty bill of goods.

It's not the detail, it's the big pig picture. We've got a problem.

Brian said...

The appropriate CEQA and NEPA reform would be to take control away from the developer. By law, the developer/applicant writes a check to the government, and then the government is in charge. Any consultant who worked on that project in a pre-application stage should be barred from competing for the contract to prepare the environmental review.

There's just way too much subjectivity involved in environmental review to allow this biased system, and no strict system of regulation will fix that.

CapitalistImperialistPig said...

You tilt at windmills, but scorn the only measureslikely to make a difference - carbon taxes.

Anonymous said...

Anonymouse sez:
Thanks Algeranon and Susan A.,
I am feeling despair. So much red tape, so little knowledge amomgst our fellow humans about things like an EIS (usa). I am a noob, not a scientist, but I am not clueless about all of the issues. I am worried for sure. *brow is furrowed*

Brian said...

CIP - see the next post. No scorn here, except maybe a little bit for those going out of their way to scorn cap-and-trade.

Susan Anderson said...

Thanks anon. I'm just a noob too!

I realized I meant piper payer, which got me thinking, perhaps that was the original pickled peppers in

Peter Piper picked a peck of pickled peppers.

hope bunnies don't mind a bit of lighthearted nonsense about a dark issue ... my brow is also furrowed and seeks respite from our marketing-driven jam.

Anonymous said...

Dr. Lumpus Spookytooth, phd.

I bet none of you showed up to protest the pipeline.

Anonymous said...

It's a litte embarassing to see how few in the environmental community understand NEPA. Come on guys. Grab a few off the shelf and read them. They're pretty much always done by consultants working for the project applicant.

Here's another tidbit. NEPA is all about full disclosure and that's it. A project can be found to be extremely harmful to the environment, but can still proceed. As long as it was an accurate reporting of the environmental impacts.

If the Trans Canada report sucks, then that can be challenged in court. The next step for those guys will be to shop around for a sympathetic judge.

Now the State Department as the "Action Agency" can reject the NEPA document, and that's really the only sort of input federal employees would normally have.

Which is why there is such a big push to get rid of federal employees. At some point consultants will be reviewing the work of consultants and there'll only be a handful of federal employee accountants and a few lawyers and then the corporatacracy can do whatever they want.

Anonymous said...

Attn: Dr. Lumpus Spookytooth, phd.
Not everyone lives to travel, as I am sure you do. Some people have to work, or live across the country. We can express our opinions directly via the internet to the current administration, though.

Anonymous said...

I worked as a CEQA specialist for 25 years. Truly objective EIRs are few and far between. At least in So Cal, developers prepare the EIR with little local govt review. Cutbacks have eliminated most of the good staff for the few agencies that had developed any CEQA expertise in the first place. As a private citizen, i recently commented on an EIR for a hotel project where it became apparent the city staff had not reviewed it at all -- the project location was even wrong on the EIR's map. Granted that CEQA litigation is slow and sometimes costly, but the fear that a judge could review an EIR is really the only thing that keeps EIRs even half honest. When the LA/LB ports had to litigate port expansion EIRs with NRDC it was a catalyst for port actions that made huge gains in mitigation of port air emissions. This progress would not have happened without CEQA. I fear CEQA "reform."