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Keystone XL: Activists Ask What State Department Is Hiding

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Federal officials, responding this week to a year-old Freedom of Information Act request filed by environmental activists seeking to shine a light on the State Department's review of the proposed Keystone XL oil pipeline, withheld or redacted portions of emails, meeting notes, agendas and other items, according to copies of the materials provided to reporters. The environmental group Friends of the Earth filed the information request in December of last year, and two earlier batches of documents were delivered without significant redactions in September and October.

The activists also say that unredacted emails in the latest document release provide further evidence supporting their claim that the State Department has been unduly influenced by representatives of TransCanada, the Calgary-based company behind the pipeline proposal. The State Department has vigorously denied those charges.

The redactions in question primarily involve emails and notes relating to meetings held by State Department staff in January and May of this year. In some cases, agenda items for the meetings have been blanked out. In others, the subject lines, the names of file attachments, or substantial passages in the body of emails are obscured.

"These documents fully prove that the State Department is in a self-conscious and active process of covering stuff up," said Damon Moglen, the climate and energy director with Friends of the Earth. "That's not what FOIA calls for."

The State Department did not respond directly to requests for comment on specific redactions. But in an emailed statement delivered through the public affairs office, deputy spokesman Mark Toner said the State Department was "committed to continuing to conduct a transparent, thorough and rigorous process," and that its "highest priority is working with other agencies to determine whether the proposed project is in the national interest."

"The Department has complied fully with the FOIA request," Toner said, "and rejects any assertions to the contrary."

When pressed further, Toner added in a subsequent email: "The Department of State has followed the requirements under FOIA. The law provides for specific exclusions," he said, "for purposes of privacy, internal deliberations, and attorney-client privilege."

The $7 billion Keystone XL project would deliver crude oil from Alberta, Canada to refineries and ports on the Texas Gulf Coast. Fierce opposition to the pipeline from environmental groups and residents in the pipeline's path -- particularly in an ecologically sensitive area of Nebraska known as the Sand Hills -- ultimately forced federal officials to delay making a decision on the pipeline until at least the early part of 2013.

The project was first submitted to the State Department, which is responsible for permitting infrastructure projects that cross a U.S. border, in 2008. The bulk of the additional time will be spent exploring and analyzing the potential environmental impacts of alternative routes around the Sand Hills.

The environmental activists' original FOIA request focused on communications between the department and Paul Elliott, a lobbyist for TransCanada and a former staff member of Secretary of State Hillary Clinton's failed 2008 presidential bid. "This request includes but is not limited to copies of all correspondence, letters, memos, briefing papers, faxes, cables, emails, meeting and teleconference agenda, minutes, notes, transcripts, meeting and teleconference attendee lists, dates, or tape recordings and phone logs," the request stated.

The State Department initially denied the information request last January, only to change course in February and agree to comply after Friends of the Earth filed an appeal. Three months later, with the Department still failing to produce any documents, Friends of the Earth sued.

In early September, the State Department delivered a first batch of emails and memos relating to its deliberations over the contentious pipeline, with two more tranches arriving roughly a month apart over the subsequent two months. While some of those materials have suggested that Elliott engaged in friendly correspondence with low-level State Department staff, the agency has consistently stated that high-level decision makers within the department remained appropriately detached and impartial.

Among the redacted materials in the most recent release is the agenda for a Jan. 14 meeting relating to Keystone XL, which was circulated a day earlier to multiple State Department officials involved. Two items on the agenda list are blanked out, as are substantive portions of email exchanges relating to the meeting.

A month later, Michael Stewart, an energy officer with State's Bureau of Economic, Energy and Business Affairs who is referred to in other emails as the agency's "guru" on all things relating to the Keystone XL project, sent a message referring to the Jan. 14 meeting to Daniel Clune and two State Department attorneys. Clune is the principal deputy assistant secretary for the agency's Bureau of Oceans, International Environmental and Scientific Affairs, which is overseeing the Keystone XL project. The subject line, the list of attachments and the body of that email are all redacted.

Email messages regarding a later meeting, on May 27, are also truncated or obscured, as are two items on that meeting's agenda list. Friends of the Earth suggest that some emails and notes that were not redacted hint at other missing materials.

"Some of the documents we were provided also refer to attachments or other emails which we were not provided and which would seem to be responsive to our FOIA request," the group said in a memo supplied to reporters.

"The State Department appears to be withholding these documents in violation of the Freedom of Information Act," the group added. "This begs the question: What is the State Department hiding and why is it doing so now? Is the increase in secrecy a response to the withering criticism State has faced as evidence of lobbyist influence, bias and conflicts of interest in the review process mounts?"

Agencies receiving FOIA requests are entitled under law to withhold certain materials under nine procedural "exemptions." This allows government officials to protect certain information that would have ancillary and detrimental impacts if released, like personal information, for example, or trade secrets. In most instances in the latest document release, the State Department has invoked Exemption 5, a broadly interpreted exemption that covers all manner of documents and communications that fall under attorney-client or executive privilege.

Abby Rubinson, an attorney with EarthJustice, which is representing Friends of the Earth in the State Department FOIA case, said the State Department would be required by law to index the materials it has withheld and provide a fuller explanation of what those materials are and why they are entitled to the exemptions, at which point the activists might challenge those assertions.

"It's up to them to explain what these documents are and why they should be withheld," she said. "That's the purpose of FOIA, and it just seems like State should feel it's important to comply and give the public the documents they deserve."

Friends of the Earth also suggested that some of the materials and communications that were not redacted in the new release raise additional questions. Previous documents provided by State, for example, have suggested that Stewart and Clune were given a tour of a TransCanada pipeline control room in Calgary. In one un-obscured email exchange, Stewart appears to be endorsing a meeting between Clune and TransCanada executives visiting Washington -- including Elliott. "The man coming from Calgary is the VP who showed us around the control room," Stewart writes, "so I'm glad that you will be able to receive him."

Moglen, the climate director with Friends of the Earth, suggested that this is evidence of deference and special access granted to TransCanada executives by federal officials. Moglen also highlighted one email that suggests State Department staff held at least one meeting in which representatives of both TransCanada and Cardno ENTRIX, the consulting firm selected by State to conduct an environmental review of the Keystone XL project, were present.

The State Department has come under fire for selecting Cardno ENTRIX, one of three firms suggested by TransCanada, even though it had a previous relationship with the pipeline builder. In an interview with The Huffington Post last month, Clune said that while TransCanada pays for the work done by Cardno-Entrix, the consultant takes all of its direction from the State Department. "We tell Cardno ENTRIX what to do and how to do it and when," Clune said. "TransCanada doesn't have any say in that."

Moglen said that without knowing what transpired in the meeting between State, TransCanada and the consultant -- or whether other similar meetings were held -- that assertion is difficult to verify. "Why is Cardno ENTRIX in the room when TransCanada has meetings with the State Department?" he asked. "It's treated as utterly mundane and that should raise more red flags."

In a letter sent to Secretary of State Clinton on Thursday, Sen. Bernard Sanders, the Vermont independent, agreed, adding that the State Department should not use Cardno ENTRIX to conduct a supplemental analysis of new pipeline routes in Nebraska.

"On its face, this appears completely inappropriate," Sanders said of the joint meeting revealed in the emails. "If the State Department allows Cardno ENTRIX to conduct the [supplemental environmental review], it will unnecessarily taint the supplement. The State Department should not continue with TransCanada's hand-picked contractor, and should instead select a new and truly impartial third­-party contractor to conduct the supplement."

The State Department's inspector general, responding to complaints from Democratic members of Congress, is currently reviewing the State Department's handling of the Keystone XL permit review, including its selection of Cardno-Entrix and its interactions with TransCanada executives and lobbyists.

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