Tag Archives: good government

Our Chronic Legitimacy Crisis Might Turn Acute, Again

In the public comment I submitted last week on the Rainy River Watershed Withdrawal, I made the point that completing the withdrawal would not only help protect the Boundary Waters. It would also serve the interest of good government. A new article by Steven Levitsky and Lucan Way in Foreign Affairs helps set this point in the context of an unfolding American crisis.

“America,” argue Levitsky and Way, “may no longer be safe for democracy, but it remains inhospitable to autocracy.” Even so, the ongoing push toward autocracy is likely to bring a prolonged period of democratic instability and political violence. Even when they do not succeed in their autocratic ambitions, autocrats and their cronies in the public and private sector will destabilize government, undo rulemaking, and undermine legitimacy, as we saw clearly during the Trump era:

Trump proved to be as autocratic as advertised. Following the playbook of Hugo Chávez in Venezuela, Recep Tayyip Erdogan in Turkey, and Viktor Orban in Hungary, he worked to corrupt key state agencies and subvert them for personal, partisan, and even undemocratic ends. Public officials responsible for law enforcement, intelligence, foreign policy, national defense, homeland security, election administration, and even public health were pressured to deploy the machinery of government against the president’s rivals. (emphasis mine)

America’s chronic legitimacy crisis could once again turn acute.

If Trump or a like-minded Republican wins the presidency in 2024 (with or without fraud), the new administration will almost certainly politicize the federal bureaucracy and deploy the machinery of government against its rivals. Having largely purged the party leadership of politicians committed to democratic norms, the next Republican administration could easily cross the line into what we have called competitive authoritarianism—a system in which competitive elections exist but incumbent abuse of state power tilts the playing field against the opposition.

Corruption and political interference at Interior and USDA around a single mining project may not rank among the most serious abuses of state power we’ve seen lately or are likely to see. But documenting and understanding what happened in the case of the Rainy River Withdrawal can help us appreciate where things might be heading.

Public Comment on the Rainy River Watershed Withdrawal

My written comments ran to five pages, so instead of posting them here, I put them online as a PDF, which you can read here. I also made a three-minute comment in the live session hosted by the Bureau of Land Management and the US Forest Service this afternoon. My comments focus mainly on the story I’ve been pursuing for the past few years — a story of corruption. The first couple of paragraphs convey the general idea:

Federal lands in the Rainy River Watershed should be withdrawn from disposition under US mineral and geothermal leasing laws for the proposed initial twenty-year period, if not permanently. This is an overdue decision, grounded in science, economics, law, and environmental ethics.

Why, then, hasn’t it already happened? How did this withdrawal process, which started in 2017, go off track? Agency records obtained through the Freedom of Information Act show clearly that a foreign mining company, Antofagasta plc, acted to prevent the withdrawal; and from 2017-2021, members of Congress and the executive branch ran political interference on its behalf. Decisions taken behind closed doors during that period served foreign private interests, not the American public interest. The agencies now have an opportunity to rectify the situation.

I end with three recommendations:

The announcement on October 20, 2021, that the Biden administration will complete the “science-based environmental analysis” was encouraging. Given all the political interference, the two-year study really ought to have been started all over again, from scratch, in the interest of scientific integrity. At the very least, USDA Secretary Tom Vilsack should release – unredacted — the preliminary findings of the canceled two-year scientific study, so that they can be compared with the new and complete analysis.

As agencies work toward a science-based decision on the twenty-year withdrawal, they also need to take additional steps to restore public confidence and guard against undue influence. As a first step, the USDA Inspector General could review Secretary Perdue’s decision to cancel the 2017 withdrawal process and report on scientific independence, ethical conduct, and political interference at the agency.

Finally, the agencies can help raise standards. Industry repeatedly assures us that non-ferrous mining in the Rainy River Watershed and elsewhere can be done “responsibly,” and there are a growing number of calls, from Congress and from within the Biden administration, for “responsible mining” for the transition to renewables. How should government respond? Rigorous and practical guidance for agencies on the law and ethics as well as the technical and scientific aspects of “responsible mining” would be a good start.

Here is a recording of my three-minute live comment, which tracks all this pretty closely. Video is cued to the mark.

The Latest Records in my Boundary Waters FOIA Case

This morning, after some prodding, Interior sent the 18th supplemental production of records in my Boundary Waters FOIA case. This release numbers only 108 pages. I reviewed the documents this morning in this Twitter thread.

At the moment, the biggest takeaway for me is that we still don’t know nearly enough about coordination among the Department of Interior, the Trump White House, and the USDA, and how politics — and pressure from the mining company — played into the Trump administration’s decisions around Antofagasta’s mineral leases near the Boundary Waters.

Today’s release shows that legal memoranda from the mining company on the mineral withdrawal circulated at Interior just days before Solicitor Daniel Jorjani met with David Bernhardt’s close associate Michael J. Catanzaro, then with the Executive Office of the President, and Stephen Vaden, an attorney at USDA who seems to have been charged with keeping Sonny Perdue apprised of developments on this front.

Perdue had promised Representative Betty McCollum in May of 2017 that “we are absolutely allowing [the mineral withdrawal study] to proceed.” By August of 2017, the mining company had offered a whole host of legal arguments that would help Perdue move away from that declaration. But remarkably enough, he didn’t take that route. Instead, in September of 2018, after a year-long pressure campaign, he abruptly cancelled the two-year mineral withdrawal study, then in its eighteenth month, and declared the Rainy River Watershed open to new exploration. Why? Probably because Trump had publicly fingered him, on a May 2018 visit to Duluth: “It’s now up to Secretary Perdue, and I know he’s looking at it very strongly.” It was clear enough what Sonny Perdue had to do. Where legal arguments had failed, coercion succeeded.

I still believe Secretary Vilsack ought to ask the USDA Inspector General to look into the matter, because there’s pretty clear evidence that Perdue acted corruptly, or at least arbitrarily and at the caprice of the president, but it’s seeming less likely Vilsack will do the right thing. Secretary Vilsack has steered clear of making any comments about mining near the Boundary Waters, citing ongoing litigation in Wilderness Society v. Bernhardt and the review of the matter that Interior is undertaking in connection with that litigation — which is now supposed to be completed by October 22, according to court filings. But as I have said repeatedly, the Secretary as head of a federal agency has an independent obligation to the American public and does not need permission from another agency to investigate corruption at the one he leads.

The new records are here.

And all the Boundary Waters FOIA records I’ve obtained to date are here.

Read more about the Boundary Waters reversal here.

An Appeal to the State Department

Earlier this morning I appealed the State Department’s denial of my request for expedited processing on two Freedom of Information Act requests made in the fall of 2018.

As I mentioned in last month’s webinar, even though FOIA specifies that “records shall be made promptly available,” many agencies have a backlog of requests and some requests are deliberately slow-walked.

The State Department does not expect to complete these two 2018 requests until 2022. No reasonable definition of “promptly” contemplates a delay of four years, and, as I argue in my appeal, recent Federal government action — the June 30 Notice of Intent to prepare an Environmental Impact Statement for the Twin Metals project — compels the release of these records. Why? Because in compliance with the National Environmental Policy Act, the Bureau of Land Management plans to take public comment and hold public meetings on Antofagasta’s Minnesota project. The public can’t participate in a meaningful way or make considered judgments when critical facts are withheld.

I posted a copy of my appeal on Twitter.

The appeal’s argument about NEPA, which provides for meaningful public consultation, brings me back to a point I tried to stress in the webinar: what’s at stake here is not only a mining project or economic development in northern Minnesota or the fate of the Boundary Waters, though all of those things are matters of great concern, but also questions of meaningful consultation, citizen participation, and good government.

Both NEPA and the Freedom of Information Act are, or at least could be, conducive to responsible democratic governance. They are designed to make government conform to citizen demand, or at least make government inform, include, and answer to the public.

Charles Tilly puts it neatly: “a regime is democratic to the degree that political relations between the state and its citizens feature broad, equal, protected, mutually binding consultation.” If that is the kind of government we want to have, then those are the political relations we need to create, support, and insist upon. The state isn’t going to do that for us, and the current regime appears to be doing everything it can to frustrate and undermine those relations.

Update 28 Sept 2020. The Office of Information Programs and Services denied this appeal on September 24, saying I did not show a compelling need, and rejecting my argument that due to Federal government action my request meets the threshold of 22 C.F.R. 171.11(f)(2).

Did Interior Abandon NEPA for Antofagasta?

New documents show top officials at the Department of the Interior planned to review Antofagasta’s mineral leases near the Boundary Waters under the National Environmental Policy Act, or NEPA, before renewing them. That plan appears to have been abandoned after meetings with Chilean mining company executives in spring of 2018.

The latest Boundary Waters documents in response to my FOIA lawsuit come from Daniel Jorjani, who was Deputy Solicitor at the Department of the Interior when these records were created. The release consists of 122 heavily redacted pages, mostly emails and briefings that circulated as the Department of Interior was preparing to announce that it had reinstated Antofagasta’s mineral leases on May 2, 2018.

These records show that the Bureau of Land Management decided against any “proactive” statement (like a press release) on the reinstatement, and opted instead to create an “if-asked” statement for the press. Russell Newell drafted the if-asked statement and Associate Solicitor Karen Hawbecker reviewed and edited it on Monday, April 30. Deputy Solicitor Jorjani approved Hawbecker’s edits at 5:30PM the same day.

Newell’s draft and Hawbecker’s edits of the if-asked statement are both fully redacted, but we know what the if-asked statement said because Dylan Brown, a journalist writing for E & E News, asked.

Lori Mashburn, White House Liaison at the Department of the Interior, included the official response to Brown’s query in her May 4 Daily Update for Cabinet Affairs. The Update went to Jorjani, David Bernhardt, Doug Domenech and other political appointees as well as Russell Newell. 

At the end of April, 2018, the Department understood that the lease renewals would require “review under the National Environmental Policy Act.” That is also the understanding of the law set forward by the plaintiffs in a lawsuit over the lease renewals currently before the US District Court for the District of Columbia: 

The National Environmental Policy Act (“NEPA”) requires that agencies take a “hard look” at the environmental impacts of their actions before the actions occur, and that they prepare an Environmental Impact Statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976). Courts have clarified that in the mineral leasing context, an agency must prepare an EIS analyzing the ultimate effect of mineral development when it issues a lease without reserving absolute authority to prevent development on the lease. 

But when it came to renewing Antofagasta’s mineral leases, one year later, the Department of the Interior set NEPA aside. Instead of taking a hard look, as required by NEPA, they issued an EA or Environmental Assessment — which is really only a first step in determining whether a project will have significant environmental impact. 

Why the change of plan? As I’ve written here and elsewhere, the Department of the Interior seems to have abandoned plans for an EIS after meetings with executives from Antofagasta in spring of 2018.

In a March 6 meeting summary included with a previous release of documents, Antofagasta officials explicitly stated that an EIS would interfere with their plans. They wanted a Categorical Exclusion; they would settle for an EA. That is exactly what they got.

So it is difficult to avoid the conclusion that top Interior officials knew renewing the leases would require review under NEPA, but they deliberately set aside US law in order to do the bidding of Chilean mining executives.

The August documents are now online here, and all the Boundary Waters documents I’ve obtained to date are here.

Read more about the Boundary Waters reversal here.

A New OpEd and an Upcoming Webinar on FOIA and the Fight for the Boundary Waters

In today’s MinnPost, Chris Knopf and I discuss one finding of the documents I obtained through FOIA: Chilean mining company Antofagasta set the terms — the calendar and the scope — of environmental review for the renewal of its mineral leases near the Boundary Waters. The OpEd is here.

On Wednesday, I’ll be presenting some of my research (and talking about the Freedom of Information Act and good government) in a free online webinar hosted by Friends of the Boundary Waters. You can register here.

Update 9 July 2020: here is a recording of the webinar.

Update 18 March 2021. Zoom did not record the desktop during my presentation back in July, so for Sunshine Week I restored the slides. Watch the full presentation with slides here.