Tag Archives: administrative state

Federal Agencies Need to Deliver Themselves from the Legal and Ethical Morass Trump and his Cronies Left Them In

The 15th supplemental release of Boundary Waters documents in my FOIA case against the Department of Interior arrived yesterday. I’ve added the documents to documentcloud. Were I to characterize these records as disappointing, I might only be admitting that I still expect too much from them. Still, this release looks especially untidy, and there may be something going on behind the scenes — some change in staffing, for example — that I am not aware of.

First, the attorney assigned to my case in US District Court contacted me a couple of weeks ago to let me know that this production would be a few days late. When it came, the response letter, which accompanies every release and describes how many pages were reviewed, how many withheld, what exemptions were used, and so on, was missing. (Someone just forgot to attach it to the email, which begins “Attached is the Solicitor’s 15th Production response letter….”). The documents come from Brianna Collier, a career attorney in the Office of the Solicitor — who has been the main custodian of records in this case. We only catch glimpses of what Trump’s political appointees were doing when Collier is in the loop.

The documents themselves are heavily redacted, with deliberative process (b)(5) claimed throughout. Excerpts from Hein’s Legal Research Guides are the only records not redacted. They would be available publicly anyway. What can only be an earlier draft of the 19 page M-Opinion by then-Solicitor Daniel Jorjani dated December 5, 2017 is completely redacted. We know from the timeline that the memo was nearly finished by then, but instead of taking time to redact just those phrases and paragraphs which were still under deliberation, the FOIA officer applied a very broad brush on all 19 pages.

The FOIA officer took a slightly less aggressive approach to an August 7, 2018 memo written by Ryan Sklar on the Forest Service’s application to segregate 234,328 acres of federal land within Superior National Forest. This is the land withdrawn from mineral leasing and development while the US Forest Service completed “the necessary environmental analyses under the National Environmental Policy Act (or NEPA).” The law is clear. Sklar explains in a footnote:

Just one month later, of course, then-Secretary of Agriculture Sonny Perdue would cancel the two-year assessment, claiming that “the analysis did not reveal new scientific information.” So far, we have had to take Sonny Perdue’s word for it; the findings of the cancelled withdrawal study still have not been released. The cancellation meant that any “final decision” on the application for mineral withdrawal would be made without a complete case file — without the complete NEPA document. And without a “final” NEPA document, review would likely be guided by political considerations, not scientific evidence.

Except for an intriguing closing sentence, the discussion section here is fully redacted:

There’s not much to go on here, except Sklar’s final note: discussions of “next steps” around the Rainy River Watershed withdrawal were “ongoing” just one month before Sonny Perdue abruptly cancelled the application. There were, at that point, five months to go in the review required by NEPA, and pressure on Sonny Perdue was at its peak, with Trump publicly directing Perdue to look at the withdrawal “very strongly” and reassuring Minnesota mining proponents that they would “do very well.” Tom Emmer, Pete Stauber, Rick Nolan, and Paul Gosar kept the pressure on Perdue behind the scenes.

It’s unlikely Sklar’s legal memo refers explicitly to that pressure campaign, but it’s also hard to believe that he or anyone working on this issue at Interior was unaware of it.

The agencies now need to deliver themselves from the legal and ethical morass Trump and his cronies left them in. Secretary of the Interior Haaland should ask BLM to request a complete case file from the US Forest Service, with the necessary NEPA analysis, so that BLM can evaluate and review the withdrawal and so that she can make a lawful decision. USDA Secretary Tom Vilsack should release the preliminary findings of the cancelled two-year scientific study, unredacted. He should also ask the USDA Inspector General to review Perdue’s decision to cancel the withdrawal application and NEPA analysis. And though it’s unlikely they will do everything they should to set things right — that’s a tall order, and they’ve inherited a mess —  we can expect some steps in this direction before the end of next month, when the stay in Wilderness Society v. Bernhardt expires.

Read more about the Boundary Waters reversal here.

CEOs Are Not The Policy Leaders We Need Right Now

No distancing at Trump’s declaration of national emergency. CEOs are too close for public comfort.

Mike Lindell, better known as the My Pillow Guy, probably cut the most absurd and alarming figure among the CEOs standing with Donald Trump at his March 31st coronavirus press conference. A TV huckster and a religious zealot, Lindell declared from the White House podium that Trump had been elected by God’s grace, and he promised that his “uniquely positioned” and “empowered” pillow company would soon be producing about 50,000 cotton face masks per day. Though Lindell may have come off as a kook, it is hard not to appreciate the alacrity of his business pivot, and there’s no doubt we’ll need more face masks on the market, especially now that the CDC is coming around to the sensible view that masks should be essential wear.

Lindell’s outlandish behavior also draws attention to a disturbing pattern: the administration is trying to outsource the federal pandemic response to the private sector. This was the clear message when Trump declared a national emergency on March 13th, standing shoulder to shoulder with CEOs, not with medical or scientific experts or economists or seasoned administrators who know how to marshal government resources in emergencies. On Slate, Seth Maxon put it bluntly: “Trump Seems to Think a Bunch of CEOs Will Save America From the Coronavirus”; but maybe even that wasn’t blunt enough: Trump and the Trump administration have repeatedly made it clear that the federal government will not and should not lead the public health response; they are so callously laissez faire that they are abdicating the responsibilities of government, or handing the reins of government over to the private sector, while the states scramble for the resources they need.

The pattern has been in place for decades, of course. Now, we are reaping the whirlwind that anti-government ideologues and kleptocratic predators have sown since the 1970s. In some areas, the current administration has simply vacated government offices and diminished the administrative capacity of agencies; in others, they have allowed the private sector to direct and usurp the ordinary functions of federal government; and on nearly every public policy front, they defer to and entrust the public welfare — our common wealth, our public health, and our collective future — to CEOs.

This has been the case from the earliest days of this administration: in February of 2017, for example, Trump signed an executive order that allowed for broad regulatory rollbacks and, in a symbolic and premonitory gesture, handed the presidential pen to Dow Chemical CEO Andrew Liveris. Just one month later, then-EPA administrator Scott Pruitt handed Liveris another gift, when he announced the EPA would not ban the pesticide chlorpyrifos despite clear scientific evidence of its toxicity. Murray Energy’s Robert Murray had even greater influence, presenting the administration with a wish list — “an action plan” — that included pulling the United States out of the Paris Climate Accord and revoking the Clean Power Plan.

After Trump announced his intention to withdraw from Paris, Apple’s Tim Cook, known to the president as Tim Apple, said he could not step down in protest from Jared Kushner’s Office of American Innovation because he’d never joined it in the first place; but in February of 2019, he joined Ivanka Trump’s American Workforce Policy Advisory Board, along with Marillyn Hewson of Lockheed, Ginni Rometty of IBM, Walmart’s Doug McMillon, and Home Depot’s Craig Menear, among others. The board was formed to make sure “all Americans can participate in the opportunities created by the booming economy,” according to the president’s daughter; it’s unclear what they are doing — or if they are doing any policy work at all — now that the boom has gone bust.

It’s doubtful this board was ever meant to do any serious policy work, or that it could even if it tried. That’s not a knock on the participating CEOs. They may have joined with the best of intentions. There are CEOs today who sincerely want to do more to address social inequities and environmental degradation and are committed to the idea of stakeholder as opposed to shareholder capitalism. These are still aspirations, however, not business requirements, and they will remain aspirations without a major rethink and reorganization of the business enterprise. Meanwhile, CEOs have other, competing priorities, as well as a fiduciary duty to uphold. To the extent they must focus on short-term financial results, CEOs simply do not and cannot act primarily in the broad, long-term public interest — even if sometimes business and the public interest happen to coincide, as they might, at the moment, for Mike Lindell.

The C-Suite is not a public office and the CEO is not the model of public leadership we need.

The notion that success in the private sector makes someone suited for public office has been a source of endless mischief since at least the 1980s. People wrongly consider the president America’s CEO and the presidency a job; CEOs think they can be president; CEOs are celebrated as public benefactors and forward-thinking leaders, but it’s often hard to tell whether they are genuinely public spirited or just command an effective public relations campaign. All that makes a travesty of public service and public office and runs contrary to the public interest.

We should understand how we got to this failed state. That’s largely a story of the CEO’s rise to prominence with the financialization of the economy and of political reaction against broad public welfare schemes. The trend is toward privatizing the republic and hoarding the American future. We are confronted with “a philosophical position,” as historian Heather C. Richardson writes, “embraced by those who would overturn the active government that has presided over the United States since the New Deal.” In response to this attempted overthrow, we have to build a robust alternative, or at least do the work necessary to give future generations a head start on it.

Interior Still Hiding the Role of Political Appointees — Update on the Boundary Waters FOIA Case

Interior’s latest responses to my FOIA complaint show that the Office of the Solicitor continues to protect political appointees from public scrutiny. 

Back in July, I filed a complaint against the U.S. Department of the Interior in the US District Court for the District of Columbia, saying Interior had violated the Freedom of Information Act and was wrongfully withholding responsive documents. After providing me with about 5,000 pages of documents in response to a FOIA request I’d made on January 19th, 2018, and promising a “rolling release” of more documents, Interior abruptly cut me off, failing to answer numerous emails and phone calls, and leaving me with no recourse but to ask the court to compel them to comply with the law.

After asking for an extension, which I granted, lawyers for Interior filed an answer to my complaint on Wednesday, October 15th. The following day, Judge Boasberg issued a minute order asking the parties to confer and submit a joint proposed briefing schedule by the end of this month. It seems the case is now ready to go forward, with Interior maintaining that my complaint is groundless.

In a bid to settle the whole matter once and for all, just a few days earlier, on October 10th, Interior released a new set of responsive documents. The decision letter that accompanied this release copies the DOJ attorney for the defendants and characterizes this as the “third and final” decision for this particular FOIA request.

So, the position of the Department of the Interior appears to be: we have given you everything you are going to get, and you should stop complaining. The main trouble I have with this position is that they haven’t even begun to give me the very documents I ask for in my FOIA request: namely, and this is the very first item in the request, “any communication sent and received by the Office of the Interior Secretary Ryan Zinke, including but not limited to any emails or letters sent and received directly by the Interior Secretary Ryan Zinke or on behalf of the Interior Secretary Ryan Zinke, regarding the Boundary Waters Canoe Area Wilderness, Antofagasta Plc, Twin Metals Minnesota,” and so on.  I’ve gotten nothing — zero, zip — to or from Ryan Zinke. Are we to believe that the Secretary of the Interior never communicated about a major reversal by his department of the previous administration? Nor have I gotten anything to or from Deputy Solicitor Daniel Jorjani, who signed the reversal, and whose communications I also asked for.

It’s pretty clear that Interior is protecting political appointees like Zinke and Jorjani from having to show their work — which is exactly what Jorjani has been trying to accomplish with his expansion of the FOIA awareness review policy at Interior. That is the thrust of reporting (like this and this) by Jake Holzman at Roll Call, and the reason why organizations like American Oversight, Earthjustice, and the Western Values Project have asked Interior’s Inspector General to launch an investigation of the awareness review process. It’s also an issue on which Jorjani may have misled the Senate during his confirmation hearing, prompting Senator Ron Wyden to ask that Jorjani’s confirmation be held up until it could be established whether he had perjured himself. (Despite Wyden’s effort, Jorjani was confirmed as Solicitor on September 24, 2019.)

What I’ve gotten, instead, is the work product of civil servants, career attorneys, not political appointees. Even that material has been revealing. With the documents provided so far, I’ve managed to put together a timeline of the work done at interior to reverse the Obama administration. The documents allow us to reconstruct an intensive lobbying effort led by WilmerHale that included visits by executives from Chilean mining conglomerate Antofagasta Plc and its subsidiary Twin Metals to the US Embassy in Santiago, Chile, the Department of the Interior, and the White House. It appears Antofagasta’s attorneys at WilmerHale even provided the blueprint for the M-Opinion, the reversal, that Daniel Jorjani eventually signed. Since I first put them online, these documents have also made their way into Congressional hearings and on to the front page of the New York Times.

The latest release of responsive records is yet another partial disclosure that keeps the work of political appointees out of view. The records come from Division of Mineral Resources attorney Brianna Collier. It’s the second batch of documents from Collier, and though they give us a little more detail into the reversal process, they are a dodge. I’ve added them to the online collection of Boundary Waters FOIA documents here.

All of the work product is heavily redacted, most of it totally redacted. Collier’s emails are more lightly redacted, and they show her at work on the draft of the Boundary Waters reversal as early as May of 2017, when she first prepares an outline of the new M-Opinion. She starts writing a draft in earnest after a meeting between Interior officials and Twin Metals executives on October 12th, 2017. She’s tasked with getting the thing done in the space of about a month, but others, like Jack Haugrud, appear to be calling the shots (as Collier makes clear on November 17th, when she writes to tell Haugrud she is “working away on editing the Twin Metals opinion according to your directions”).

Something notable happens that very evening, the new correspondence reveals. Haugrud becomes aware that Gary Lawkowski — a political appointee who at that time is serving as Counsel to Daniel Jorjani, and who worked with Jorjani at the Koch-affiliated Freedom Partners Chamber of Commerce — has been working on his own draft:

So it appears that there were, at one point, two drafts of the M-Opinion in circulation, one that Collier had been working on since first making an outline in May, and then another by political appointee Gary Lawkowski. Haugrud saw it as his job to reconcile them before forwarding the opinion to Daniel Jorjani for review. It’s not clear Lawkowski’s “ideas” made it into the final draft of the M-Opinion, or what those ideas were. When we next come across Lawkowski in the records we have so far, it’s December, and he’s circulating talking points about the reversal that put the focus on strategic and critical minerals. Does that tell us something about his ideas one month previous? If so, those political arguments never made it into the final M-Opinion.

Until we see more documents, and learn more about why this matter was a priority for the Trump administration, it will also remain unclear what role political appointees like Lawkowski, Jorjani, and Zinke played in the Boundary Waters reversal. This appears to be something they are trying to keep from the public. Why?

Read more about the Boundary Waters reversal here

A Note on the Jorjani Confirmation Hearing

The way Interior has acted under the Trump administration is the textbook definition of a political cartel, using state resources to help the special interests. And it sure looks to me like Mr. Jorjani has been a key member of the cartel.
-Senator Ron Wyden

Jorjani_ConfirmationWhen asked by Senator Manchin whether he could set aside political allegiances and provide “forthright legal analysis,” Daniel Jorjani offered assurances, but his confirmation hearing on Thursday kept circling back to the question.

Senator Cantwell said she was “trying to get an understanding of your commitment to what is the law and whether you will help follow the law. That’s the key thing I’m after.” Senator Wyden wanted the other nominee in the room, Mark Greenblatt, to give him written specifics about how as Inspector General at Interior he would maintain his independence, “and keep these political appointments”  — people “like Mr. Jorjani,” he added — “from interfering with protecting the public.”  Senator King wanted to know whether Jorjani has had any contact with people associated with Freedom Partners or the Koch Brothers since taking his post at Interior. Jorjani was not prepared to say he had not, and at the end of the hearing promised to go back and check.

When her turn came, Senator Hirono said it was “hard to believe” that Jorjani’s work for the Koch Brothers between 2009 and 2017 “does not influence [his] opinions.” She cited his M-Opinion on “incidental take,” according to which oil companies that inadvertently kill migratory birds (in a spill, for instance) will no longer face penalties or prosecution. Hirono wanted to know why Jorjani issued that opinion.

Hirono: A lot of these challenges under this law have come from, have been lawsuits involving the oil and gas industry. So who benefits most from your opinion that totally stopped prosecutions for incidental take under this law? What industry most benefits from your opinion?

Jorjani: I’m not aware of any particular industry that benefits from this. I’d like to think that he American people benefit from a restrained approach.

Hirono: Yeah, I’d like to think so too. But you cannot escape the conclusion that the people you used to work for before, the Koch Brothers, this is one of their biggest issues that they wanted to have done away with….. I would say the oil and gas industries are the biggest beneficiaries.

Senator Manchin summed up what appeared to be the skeptics’ view:

as Acting [Deputy Solicitor General] you came in and overturned 7 of the 8 [Tompkins] opinions….Those things were basically approved as the previous administration was outgoing. We found also these had been exhaustively studied and Ms. Tompkins was well regarded and following the rule of law. And in all honesty the observance I have is that basically that your political ideology overtook…the rule of law.

For his part, Jorjani made the striking claim that a directive from the president’s Chief of Staff authorized him “to review every regulation and every opinion,” including previous M-Opinions by his predecessor, Solicitor Hillary Tompkins.

The directive in question appears to be the Memorandum for the Heads of Executive Departments and Agencies issued by Reince Priebus on January 20, 2017, which put in place a Regulatory Freeze, affording Trump’s political appointees “the opportunity to review any new or pending regulations” and specifically any “questions of fact, law, and policy they raise.”

This is the first time I have heard anyone at Interior publicly and directly connect the overturning of Tompkins’ M-Opinions with this directive. Jorjani seems to have read it expansively, virtually as carte blanche.  He called it the “catalyst” for his multiple reversals of Tompkins. It now has a place on the Twin Metals timeline.

Read more about the Boundary Waters reversal here.