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Public Comments on Keystone Pipeline Have Disappeared into a Procedural Black Hole

The State Department has lost tens of thousands of submissions and cannot say how the remainder will be handled or will influence the pending decision.

Nov 1, 2011
Keystone XL hearing in Atkinson, Neb.

Five weeks ago, Cindy Myers stood in a high school gymnasium before a crowd of 1,000 and said, "These words could be some of the most important of my life."

Myers was speaking at the Keystone XL oil pipeline hearing in Atkinson, Neb., but her statement could have applied to any of the thousands of people who attended hearings in five other states. Many took a day off work to get in line early; others drove for hours to reach the meetings or spent weeks polishing their testimony. They spoke with passion about jobs and energy security, their fears of water contamination and the risk of an oil spill.

But do their opinions really matter? Will any of their comments reach the State Department officials who will decide whether to approve the 1,700-mile pipeline through the nation's heartland?

To try to answer those questions, InsideClimate News asked the State Department how the public comments are being processed and who is responsible for reading them.

After two weeks of e-mail exchanges and phone calls, however, the two agency spokeswomen we dealt with couldn't explain how or when the comments will be processed, or whether any of the actual decision-makers are obligated to review them. The spokeswomen said only that all agency staff working on the pipeline review will "have access to the comments." When we asked for the names and job titles of those who might be expected to read the comments, we were told that information was not available.

Susan Luebbe, a Nebraska rancher who traveled at her own expense to speak at the final public hearing in Washington, D.C., said it was "depressing" to think that her comments may never reach decision-makers.

"So many people put a lot of effort into [the hearings] and followed along with the rules," she said. "It would look really bad on [the agency's] part not to follow through on their word."

The problem, it turns out, is that this last round of public testimony on the Keystone XL isn't protected by the National Environmental Policy Act (NEPA), a decades-old law that requires the State Department to solicit and respond to public comments about federal projects that could have a significant impact on the environment.

NEPA rules kicked in when a similar round of Keystone XL hearings was held in 2010. Those public comments were published, each with an agency response, in a 1,000-page appendix included in the final Environmental Impact Statement (EIS) that was released in August.

But the recent hearings were conducted during the ongoing "national interest" phase of the decision-making process, when the State Department determines whether the project's benefits outweigh its risks to the nation. This phase is governed not by NEPA, but by a three-page executive order signed in 2004 by President George W. Bush, which legal experts say gives the agency almost total discretion in handling public comments. Only two sentences mention public comments.

"There's no real formal public comment process that's explained or laid out," said Jim Murphy, a senior attorney with the National Wildlife Federation. Unlike NEPA, which has extensive regulations and a long history of case law, "here [the agency] can kind of go into a black hole if that's what they want to do."

Damon Moglen, director of climate and energy programs for the environmental group Friends of the Earth, said that in April a group of environmental organizations asked the State Department to hold a second round of hearings so the public could weigh in on a revised version of the agency's first draft EIS.

The State Department agreed to accept written comments. But the request for NEPA-regulated public hearings "was flatly denied," Moglen said.

Cardno Entrix Is Involved in the Process

Despite the lack of NEPA regulation for the recent hearings, an agency spokeswoman said the agency would "make sure all the comments are taken into consideration in the decision."

Three teams of State Department employees presided over the recent hearings, she said. Each was led by a senior official, usually a Foreign Service officer. The leader of the team that handled the Texas and Oklahoma hearings was a specialist on eastern European policy who has been with the agency for more than 20 years, the spokeswoman said.

Transcripts from the hearings, along with any written comments that were submitted, are being organized into a reader-friendly format, although the spokeswomen could not say when that process will be completed. Agency staff members are supervising the work with help from Cardno Entrix, the consulting firm that prepared the Environmental Impact Statement and helped organize the hearings.

The State Department has been criticized for hiring Cardno Entrix, because the firm counts TransCanada—the Alberta-based company that wants to build the pipeline—as a "major client," and TransCanada paid for the environmental assessment that Cardno Entrix did under the auspices of the government. Last week, 14 members of Congress called for an investigation into possible conflicts of interest in the pipeline review, including Cardno Entrix's role in the process.

Cardno Entrix's involvement in tabulating the public comments is of particular concern to Kate Colarulli, associate campaign director for the Sierra Club's Beyond Oil campaign.

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