Tag Archives: NEPA

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 This is the land withdrawn from mineral leasing and development while the US Forest Service completed “the necessary environmental analyses under the National Environmental Policy Act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.

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 Debate Over Environmental Review? New Boundary Waters Documents

“Again pinging BLM”: in 2017, the US Forest Service appears to have been concerned over what standards of environmental review applied to the proposed mineral withdrawal in Superior National Forest.

A new set Boundary Waters documents arrived yesterday. This is the latest monthly installment in a “supplemental production” of responsive records the Department of Interior agreed to make after I sued for failure to comply with FOIA. This batch includes 378 pages, pretty thoroughly redacted. I’ve put them online (1,2, 3, along with the rest of the Boundary Waters documents I’ve obtained) and started to go through them.

Their arrival might be timely. Some of the records show officials at the Department of Interior trying to decide on appropriate standards of environmental review as they work on renewing Chilean mining giant Antofagasta’s mineral leases in Superior National Forest. That is a question at the heart of a new lawsuit filed at the start of this month in US District Court for the District of Columbia.

Wilderness Society et al. v. David Bernhardt et al. says the Bureau of Land Management failed to comply with the National Environmental Policy Act (NEPA) in renewing Antofagasta’s mineral leases. It also charges that the US Forest Service acted in an arbitrary and capricious manner (in violation of the Administrative Procedure Act) when it reversed course and promoted mine development, despite having previously found that allowing sulfide mining near the Boundary Waters would pose unacceptable risks.

Hopefully this case is going to shed light on the question why Interior rushed to renew Antofagasta’s mineral leases, and at whose direction, and why Secretary of Agriculture Sonny Perdue abruptly cancelled the scientific study of sulfide mining near the Boundary Waters.

While the new documents don’t answer those questions directly, they conform to the pattern we’ve seen in previous document releases. They paint a picture of nearly complete regulatory capture, with Interior officials meeting and working closely with executives from Antofagasta and their Twin Metals Minnesota subsidiary as well as lobbyists from WilmerHale.

There are, for example, records here of a March 6, 2018 meeting and another on March 22nd. Daniel Altikes (the Antofagasta executive I discussed in a previous post) flies up “from Chile” for that one:

The documents also show Antofagasta/Twin Metals weighing in on what standards of environmental review should apply to the renewal of their mineral leases as well as their preference right lease applications (or PRLAs). According to the meeting summary prepared by Ryan Sklar of the Office of the Solicitor, the mining company recognizes “that there is debate about the type and scope of review that is necessary/appropriate.” Not surprisingly, they would prefer a Categorical Exclusion (CX: meaning the renewal would essentially be exempt from environmental review!), but they will settle for a “limited EA” (which is essentially what they got).

The meeting with Altikes and the lobbyists from WilmerHale on Thursday, March 22nd appears to be the follow up Sklar mentions here. It’s unclear from the documents I have whether there was much debate on that occasion or any dissent in the room at all.

Read more about the Boundary Waters reversal here