Transparency Watch

State Department reverses position, makes comments on Keystone XL available to public

Reversing a position announced in March, the U.S. Department of State has stated it will make public the more than 800,000 comments submitted to date regarding the controversial Keystone XL pipeline.

In March, John H. Cushman reported for InsideClimate News that the State Department would not make public the public comments it received during the drafting of an Environmental Impact Statement for the pipeline, except through the Freedom of Information Act. Cushman, who said he makes a habit of reading the docket of public comments for reporting, said he was taken aback when he was told the comments weren’t available.

Despite being explicitly releasable under the law, and despite the agency creating an online docket of all comments, they were not to be made available proactively. The department told Bloomberg News that “consistent with past practice, the department does not plan to make individual comments public.”

That decision drew criticism from those who argued the public should have access to the comments online without entering into the lengthy FOIA process. Many argued that, because the comment period was open until April 22, withholding or delaying the release of information was hindering the public’s ability to engage in a public debate.

All public comments now will be made available before the State Department finalizes its Environmental Impact Statement and presents a recommendation to the White House. The comments are not yet available.

The decision marks a break from a recent trend of opacity noted by reporters, environmental groups and open government advocates. In 2011, the State Department was sued for not disclosing correspondence between then Secretary of State Hillary Clinton and a lobbyist for Keystone XL company TransCanada Pipelines. During the first environmental review of the project, the State Department lost 94,000 comments submitted by Sierra Club members and later wouldn’t accept a re-submission of the lost comments. Last month, Mother Jones reported that heavily redacted documents concealed the fact that the contractor involved in the review process has ties to TransCanada. And recently, the Sierra Club and other environmental groups requested an extension to this latest public comment period because the State Department hadn’t yet released documents underlying the draft impact statement -- documents that are public under federal law. The documents have not yet been received, nor has the extension been granted.

While public comments and relevant documents for draft regulations typically are made available through regulations.gov, that mechanism is not always used for comments received during other federal processes, such as a review of potential environmental impact under the National Environmental Policy Act, as in the case of the Keystone XL. But other agencies have set a precedent of making comments available in an online docket. Elizabeth Shope, an advocate for the Natural Resources Defense Council, noted that the Bureau of Land Management has done so under similar circumstances. The EPA has done so as well.

The information within public comments is often crucial not only to public debate but also to the outcome of processes like an environmental review. Reporters such as Cushman make a habit of reading the docket to inform their reporting. Organizations like the Natural Resources Defense Council use information already in the public docket -- which includes comments from other federal agencies -- to craft their statements.

“Public participation can mitigate potential environment and public health risks and there have been many examples of agencies changing or making adjustments to rules or guidance based on public comments,” according to Sofia Plagakis of the Center for Effective Government. In particular, she recalled that public comments to the Department of Energy prompted the inclusion of wildfire threats in its evaluation of the Los Alamos Nuclear Laboratory. Ultimately, the lab took steps to reduce wildfire hazards, which mitigated damage when wildfire did threaten the lab.

The public comment period for the draft Environmental Impact Statement ended April 22. The State Department now enters the National Interest Determination stage, the final stage before it makes its recommendations to the White House, during which it will continue to accept public comments. To access the State Department’s Keystone XL pages, which do not yet include access to public comments, visit this link: http://www.keystonepipeline-xl.state.gov/

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