Inside the Trump Admin's Fight to Keep the Keystone XL Approval Process Secret
By Steve Horn
At a Feb. 21 hearing, a U.S. District Court judge ruled that the Trump administration must either fork over documents showing how the U.S. Department of State reversed an earlier decision and ultimately came to approve the Keystone XL pipeline, or else provide a substantial legal reason for continuing to withhold them. The federal government has an order to deliver the goods, one way or the other, by March 21.
DeSmog has reviewed the court evidence from the environmental groups bringing the case, records which help illuminate their argument that the government is, in fact, withholding such documents. The judge will decide if those documents, legally, should be made public.
The case, which began in March 2017, pits the Indigenous Environmental Network and the North Coast River Alliance against the State Department, U.S. Fish and Wildlife Service, the U.S. Department of interior and TransCanada, the owner of Keystone XL. During his first week in office, Donald Trump signed a memorandum calling for the State Department to perform an expedited 60-day permit review of the pipeline. Two months later, the State Department gave Keystone XL the permit it needed to cross the U.S.-Canada border.
Under the Obama administration, the Keystone XL pipeline, which would carry oil from Alberta's tar sands, underwent a years-long environmental review process which culminated in President Barack Obama nixing it in November 2015. For the better part of the past decade, the pipeline has served as a central mobilizing force for the environmental movement.
Dispute Over Records
At the center of this case is a dispute over the administrative records of federal agencies, which in other lawsuits are routinely made public as part of the pre-trial process.
Generally, releasing such documents gives a snapshot of the full deliberative process behind federal agencies' decisions. DeSmog, in fact, published a story on such documents in 2015 related to a different tar sands pipeline project, which involved Enbridge's Alberta Clipper (also known as Line 67), part of a broader pipeline system DeSmog calls the "Keystone XLClone."
In the TransCanada case, the State Department has argued for keeping these pre-trial records sealed while the plaintiffs, the environmental groups, have argued they should be made public. These documents, which might include emails and memos, would offer the plaintiffs and the general public an idea of how the Trump administration decided to approve the Keystone XL.
The plaintiffs say that not all of those records have been turned over.
"Federal Defendants have wrongly omitted an unknown number of emails and other internal communications considered by the agencies during their review of the Keystone XL pipeline," the plaintiffs in the case argued in court documents on Jan. 8.
In an affidavit exhibited as part of that filing, Cecilia Segal, an attorney for one of the plaintiffs, cited a Dec. 19 phone call she had with the federal defendants, in which they said that agency emails and other records do not need to be disclosed as part of the case.
Another letter exhibited as part of the Jan. 8 filing, written on Nov. 30 by attorneys for the Center for Biological Diversity, further complained that the documents already handed over were not adequately comprehensive or organized in a manner useful for the case. And many documents, they allege, seem to be missing entirely and without explanation.
"We are concerned that both the State Department and Service have withheld records as privileged without identifying and certifying them on a privilege log," wrote the attorneys.
"The State Department Administrative Record includes very few emails and inter-agency communications, even though such materials are typically included in administrative records that are compiled for litigation by federal agencies. Yet the State Department has provided no descriptions of these records, or even acknowledged the existence of these and other records that have been withheld in their entirety, let alone provided a log with basic details about what these records are, who generated them, and why the State Department is evidently hoping to shield them from judicial review."
A privilege log is a document, submitted to a judge and made part of the court record, which details both the nature of documents pertinent to a case and a legal rationale for keeping them out of the public court record.
"Because they have refused to provide a privilege log, it is impossible for Plaintiffs and the Court to determine how extensive the withholdings are and whether they are appropriate," wrote the plaintiffs in their Jan. 8 filing. "Accordingly, the Court should order Federal Defendants to produce a privilege log that adequately describes the withheld materials, identifies the basis for their withholding, and substantiates any claimed privileges."
The State Department and TransCanada, for their part, have come to a different legal conclusion, saying that the documents in question are "deliberative" in nature and not part of any official administrative process. They argue that the plaintiffs are attempting to turn the administrative records into a Freedom of Information Act request, positing that pre-decisional documents should not be included among those disclosed in the case.
"The bare fact that predecisional, deliberative materials were generated during the decisionmaking processes, does not transform those materials into documents that were before the decisionmaker in any relevant sense and therefore part of the administrative record, any more than documents reflecting a trial court's predecisional deliberations, such as bench memos, other communications between judges and their staff, and drafts of decisions, are part of the trial record," wrote Department of Justice attorneys in a Jan. 22 court filing.
They also argued in that filing that the plaintiffs are on a "fishing expedition" styled as a mission to "complete the record." Ultimately, it will be for Judge Brian Morris to decide which argument has more merit in the coming months.
'Smoke and Mirrors'
At least one group believes the entire premise of the dispute amounts to a cause for celebration. The climate advocacy organization 350.org—which has long led the movement opposing Keystone XL—says it believes this development is a sign the pipeline may never be built. Along those lines, it showed excitement over the judge's decision in a press release:
"The Trump administration's approval of the Keystone XL pipeline has been nothing but smoke and mirrors," said 350.org Executive Director May Boeve. "The truth is undeniable. Every shred of scientific evidence shows this pipeline is a threat to our climate, and to the lands, waters, and lives in its path."
Reposted with permission from our media associate DeSmogBlog.
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EcoWatch Daily Newsletter
By Mark Hertsgaard
What follows are not candidate endorsements. Rather, this nonpartisan guide aims to inform voters' choices, help journalists decide what races to follow, and explore what the 2020 elections could portend for climate action in the United States in 2021 and beyond.
Will the White House Turn Green?<p>Whether the White House changes hands is the most important climate question of the 2020 elections. President Donald Trump rejects climate science, is withdrawing the United States from the Paris Agreement, and has accelerated fossil fuel development. His climate policy seems to be, as he tweeted in January when rejecting a U.S. Army Corps of Engineers proposal to protect New York City from storm surges, "Get your mops and buckets ready."</p><p>Joe Biden, who started the 2020 campaign with a climate position so weak that activists gave it an "F," called Trump a "climate arsonist" during California's recent wildfires. Biden backs a $2 trillion plan to create millions of jobs while slashing emissions—a Green New Deal in all but name. Equally striking, his running mate, California Senator Kamala Harris, has endorsed phasing out fossil fuel production—a politically explosive scientific imperative.</p><p>The race will be decided in a handful of battleground states, five of which already face grave climate dangers: Florida (hurricanes and sea-level rise), North Carolina (ditto), Texas (storms and drought), Michigan (floods), and Arizona (heat waves and drought). <a href="https://climatecommunication.yale.edu/visualizations-data/ycom-us/" target="_blank">Public concern is rising</a> in these states, but will that concern translate into votes?</p>
Will Democrats Flip the Senate, and by Enough to Pass a Green New Deal?<p>With Democrats all but certain to maintain their majority in the U.S. House of Representatives, the Senate will determine whether a potential Biden administration can actually deliver climate progress. Democrats need to pick up three seats to flip the Senate if Biden wins, four if he doesn't. But since aggressive climate policy is shunned by some Democrats, notably Joe Manchin of coal-dependent West Virginia, Democrats probably need to gain five or six Senate seats to pass a Green New Deal.</p><p>Environmentalists, including the League of Conservation Voters, are targeting six Republicans who polls suggest are vulnerable.</p><ul><li>Steve Daines of Montana, who denies climate science</li><li>Martha McSally of Arizona</li><li>Thom Tillis of North Carolina</li><li>Susan Collins of Maine</li><li>Joni Ernst of Iowa (bankrolled by Charles Koch)</li><li>John James of Michigan (also a Koch beneficiary)</li></ul><p>Republican Senators are even at risk in conservative Kansas and Alaska. In both states, the Democratic candidates are physicians—not a bad credential amid a pandemic—who support climate action. In Kansas, Barbara Bollier faces an incumbent funded by Charles Koch. In Alaska, Al Gross urges a transition away from oil, though his openness to limited drilling in the Arctic National Wildlife Preserve dims his appeal to green groups. He faces incumbent Republican Dan Sullivan, who receives an 8 percent lifetime voting record from the League of Conservation Voters.</p>
Will Local and State Races Advance Climate Progress?<h4>THE CLIMATE HAWKS</h4><p>Under Democratic and Republican leadership alike, Washington has long been a graveyard for strong climate action. But governors can boost or block renewable energy; the Vermont and New Hampshire races are worth watching. Attorneys general can sue fossil fuel companies for lying about climate change; climate hawks are running for the top law enforcement seats in Montana and North Carolina. State legislatures can accelerate or delay climate progress, as the new Democratic majorities in Virginia have shown. Here, races to watch include Pennsylvania, North Carolina, and Colorado.</p><h4>THE CLIMATE POLICY MAKERS</h4><p>Perhaps the most powerful, and most overlooked, climate policy makers are public utility commissions. They control whether pipelines and other energy infrastructure gets built; they regulate whether electric utilities expand solar and energy efficiency or stick with the carbon-heavy status quo. Regulatory capture and outright corruption are not uncommon.</p><p>A prime example is Arizona, where a former two-term commissioner known as the godfather of solar in the state is seeking a comeback. Bill Mundell argues that since Arizona law permits utilities to contribute to commissioners' electoral campaigns, the companies can buy their own regulators. Which may explain why super-sunny Arizona has so little installed solar capacity.</p><p>In South Dakota, Remi Bald Eagle, a Native American U.S. Army veteran, seeks a seat on the South Dakota Public Utilities Commission, which rules on the Standing Rock oil pipeline. And in what <em>HuffPost</em> called "the most important environmental race in the country," Democrat Chrysta Castaneda, who favors phasing out oil production, is running for the Texas Railroad Commission, which despite its name decides what oil, gas, and electric companies in America's leading petro-state can build.</p>
Will the Influencers Usher in a Green New Era?<h4>THE UNCOUNTED</h4><p>The story that goes largely under-reported in every U.S. election is how few Americans vote. In 2016, some 90 million, <a href="https://www.pewresearch.org/politics/2018/08/09/an-examination-of-the-2016-electorate-based-on-validated-voters/" target="_blank" rel="noopener noreferrer">roughly four out of every 10 eligible voters</a>, did not cast a ballot. Attorney Nathaniel Stinnett claims that 10 million of these nonvoters nevertheless identify as environmentalists: They support green policies, even donate to activist groups; they just don't vote. Stinnett's <a href="https://www.environmentalvoter.org/" target="_blank" rel="noopener noreferrer">Environmental Voter Project</a> works to awaken this sleeping giant.</p><h4>THE SUNRISE MOVEMENT</h4><p>Meanwhile, the young climate activists of the <a href="http://www.sunrisemovement.org/" target="_blank" rel="noopener noreferrer">Sunrise Movement</a> are already winning elections with an unabashedly Green New Deal message. More than any other group, Sunrise pushed the Green New Deal into the national political conversation, helping Representative Alexandria Ocasio-Cortez and Senator Ed Markey draft the eponymous congressional resolution. In 2020, Sunrise has helped Green New Deal champions defeat centrists in Democratic primaries, with Markey dealing Representative Joe Kennedy Jr. the first defeat a Kennedy has ever suffered in a Massachusetts election. But can Sunrise also be successful against Republicans in the general elections this fall?</p><h4>THE STARPOWER</h4><p>And an intriguing wild card: celebrity firepower, grassroots activism, and big-bucks marketing have converged behind a campaign to get Latina mothers to vote climate in 2020. Latinos have long been the U.S. demographic most concerned about climate change. Now, <a href="https://votelikeamadre.com/" target="_blank" rel="noopener noreferrer">Vote Like A Madre</a> aims to get 5 million Latina mothers in Florida, Texas, and Arizona to the polls. Jennifer Lopez, Salma Hayak, and Lin-Manuel Miranda are urging mothers to make a "pinky promise" to vote for their kids' climate future in November. Turning out even a quarter of those 5 million voters, though no easy task, could swing the results in three states Trump must win to remain president, which brings us back to the first category, "Will the White House Turn Green?"</p>
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By Tony Carnie
South Africa is home to around 1,300 of the world's roughly 7,100 remaining cheetahs. It's also the only country in the world with significant cheetah population growth, thanks largely to a nongovernmental conservation project that depends on careful and intensive human management of small, fenced-in cheetah populations. Because most of the reserves are privately funded and properly fenced, the animals benefit from higher levels of security than in the increasingly thinly funded state reserves.
Vincent van der Merwe at a cheetah translocation. Endangered Wildlife Trust
Under Pressure<p>Cheetah populations elsewhere in Southern Africa have not prospered over the past 50 years. In Zimbabwe, cheetah numbers have crashed from 1,500 in 1975, to just 170 today. Botswana's cheetah population has held steady at around 1,500 over the same period, but illegal capture for captive breeding and conflicts with farmers and the growing human population are increasing. In Namibia, there were an estimated 3,000 cheetah in in 1975; roughly 1,400 remain today.</p><p>In contrast, South Africa's cheetah numbers have grown from about 500 in 1975 to nearly 1,300 today. Van der Merwe, who is also a Ph.D. student at the University of Cape Town's Institute for Communities and Wildlife in Africa (iCWild), says he's confident that South Africa will soon overtake Namibia and Botswana, largely because the majority of South African cheetahs are protected and managed behind fences, whereas most of the animals in the neighboring countries remain more vulnerable on mainly unfenced lands.</p><p>Wildlife researchers Florian Weise and colleagues have reported that private stock owners in Namibia still trap cheetahs mainly for translocation, but there are few public or private reserves large enough to contain them. Weise says that conservation efforts need to focus on improving tolerance toward cheetahs in commercial livestock and game farming areas to reduce indiscriminate trapping.</p><p>Van der Merwe says fences can be both a blessing and a curse. While these barriers prevent cheetahs and other wild animals from migrating naturally to breed and feed, they also protect cheetahs from the growing tide of threats from humanity and agriculture.</p><p>To simulate natural dispersion patterns that guard against inbreeding, the trust helps landowners swap their animals with other cheetah reserves elsewhere in the country. The South African metapopulation project has been so successful in boosting numbers that the trust is having to look beyond national boundaries to secure new translocation areas in Malawi, Zambia and Mozambique.</p><p>Cheetah translocations have been going on in South Africa since the mid-1960s, when the first unsuccessful attempts were made to move scores of these animals from Namibia. These relocations were mostly unsuccessful.</p>
Charli de Vos uses a VHF antenna to locate cheetahs in Phinda Game Reserve. Tony Carnie for Mongabay
Swinging for the Fences<p>But other wildlife conservation leaders have a different perspective on cheetah conservation strategy.</p><p>Gus Mills, a senior carnivore researcher retired in 2006 from SANParks, the agency that manages South Africa's national parks, after a career of more than 30 years in Kalahari and Kruger national parks. He says the focus should be on quality of living spaces rather than the quantity of cheetahs.</p><p>Mills, who was the founder of the Endangered Wildlife Trust's Carnivore Conservation Group in 1995, and who also spent six years after retirement studying cheetahs in the Kalahari, says it's more important to properly protect and, where possible, expand the size of existing protected areas.</p><p>He also advocates a triage approach to cheetah conservation, in which scarce funds and resources are focused on protecting cheetahs in formally protected areas, rather than diluting scarce resources in an attempt to try and save every single remaining cheetah population.</p><p>"People have an obsession with numbers. But I believe that it is more important to protect large landscape and habitats properly," Mills said.</p><p>He suggests that cheetahs enclosed within small reserves live in artificial conditions: "It's almost like glorified farming."</p><p>"In the long run we have to focus on consolidating formally protected areas," he added. "Africa's human population will double by 2050, so cheetah populations in unfenced areas will become unsustainable if they are eating people's livestock."</p>
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