Monday, March 18, 2013

Trans Canada's Humpty Dumpty wrote Obama's environmental review of Keystone. Nothing unusual about it, sadly.

Brad Johnson writes that the Environmental Impact Statement giving a fairly decent review was written by, wait for it, a consultant hired for that purpose by Trans Canada, the applicant for the permit.

Conflict of interest, you say? Humpty Dumpty says a conflict of interest is what he says it is and no more, and in the best Washington DC scandal sense, my sense is that this is legal.

I should qualify that by saying I don't know federal environmental review (NEPA) law as well as California's equivalent (CEQA) law, but this would pretty much be allowed under California law, and CEQA is usually stronger than NEPA. Here I am banging on about this, nearly 6 years ago:
In most Bay Area cities, when a developer applies for a permit that requires the city to do environmental review, the developer pays a fee and the city then uses the fee money to hire expert consultants to prepare the environmental report. San Jose, by contrast, allows the developer to directly select and hire the environmental consultants who prepare an administrative draft of the environmental report. While San Jose may then modify the administrative draft, the developer-controlled draft is biased to play down the impacts. The direct expertise is in the hands of people loyal to the developers, not to the City or to a neutral evaluation process.
While most Bay Area cities have moved away from this, San Jose still hasn't, and it's still legal.  Almost as embarrassing, my own water district has the same bad policy (it's on my to-do list and we almost never issue complicated permits for private parties anyway, so there). Now under CEQA, an agency can get in theoretical trouble if it can be shown they rubber-stamped the document they received from the developer's consultants, but you know that happens anyway, and the bias will survive regardless. I'm not sure what the standard is under NEPA and whether they've met it, but given the scrutiny, they probably have.

There is another check on the developer bias - an environmental report can be challenged in court, and going too far in one direction will make it legally vulnerable. By express legal design, however, the courts favor agencies over plaintiffs for the more extensive environmental reviews, and many reviews never get challenged by anybody.

There's been some noise in California about "reforming" CEQA, mostly to make it easier to get projects done. I'm not adverse to some deals on it, but the type of reform I'm talking about hasn't seen much discussion.

For a contrary opinion to the idea that Keystone won't have much of a climate effect, read NRDC.