Opening Pruitt’s Calendar and Saving EPA Climate Info; plus, DAPL FOIA Denied and Hoopla over Senate Hallway Interviews

June 27, 2017

WatchDog: Opening Pruitt’s Calendar and Saving EPA Climate Info; plus, DAPL FOIA Denied and Hoopla over Senate Hallway Interviews

By Joseph A. Davis, WatchDog TipSheet Editor

1. Enviros Call on EPA’s Pruitt to Disclose His Schedule

An environmental group has called on U.S. Environmental Protection Agency Administrator Scott Pruitt to publish his schedule of appointments — as his predecessors had done.

U.S. EPA Administrator Scott Pruitt at a National Association of Manufacturers ‎Spring Board of Directors meeting in Scottsdale, Ariz., in early March.
U.S. EPA Administrator Scott Pruitt at a National Association of Manufacturers ‎meeting in Scottsdale, Ariz., in early March. PHOTO: David Bohrer/National Association of Manufacturers‎

The transparency measure could help the public understand whether the EPA, whose mission is to protect public health, is meeting with industry groups more concerned about their own bottom line.

The Environmental Defense Fund wrote Pruitt June 20 urging him to make his schedule (and those of other senior EPA officials) public.

During the Obama administration, those schedules were published regularly on the web. The practice goes back at least to the time of William D. Ruckelshaus, who was trying to restore confidence in the agency after the 1982-83 scandal that brought the resignation of Administrator Anne Gorsuch Burford.

Such schedules are public records, and accessible under the Freedom of Information Act. But the agency can make them either easy or hard to get. Pruitt has not been publishing his schedule.

Greenwire investigative reporter Kevin Bogardus used FOIA to get Pruitt’s calendar from Feb. 21 to March 31 of 2017 and wrote a June 15 story about it that drew a lot of public interest.

The calendar showed that while Pruitt has since met with environmental groups, his early weeks in office were filled with private meetings with top brass of energy corporations and lobby groups: the American Petroleum Institute, Duke Energy, Dow Chemical and Murray Energy. He has been criticized for close ties with the fossil fuel industry.

2. Cities Give Home to Climate Info Censored from EPA’s Website

If EPA thought it could disinform the U.S. public about climate, it had better think again. Climate change information removed by the Trump administration from the EPA’s website is being republished on the municipal websites of almost a dozen cities concerned about climate.

Those cities include Chicago, Boston, San Francisco, Atlanta, Houston, Portland and Seattle. Chicago Mayor Rahm Emanuel was the first mayor to republish (back in May) the climate web pages EPA has taken down.

"The American people are entitled to the publicly funded EPA research on climate change,” said San Francisco Mayor Ed Lee.

3. Corps Won’t Disclose the Harm a Spill from Dakota Access Pipeline Could Cause

Army Corps of Engineers lawyers have refused a FOIA request about what could happen if the Dakota Access Pipeline, or DAPL, spilled oil in some environmentally sensitive place, exactly what protesters complained about prior to its approval.

Residents of the Standing Rock Sioux Reservation (and the thousands of Native Americans and “water protectors” who joined them from all over the country) had spent a long autumn and a harsh winter expressing very public worry that a spill where the pipeline passed under the Missouri River (at Lake Oahe) would endanger their drinking water supply. That concern was covered extensively in the news media.

The FOIA request came on March 17 from an open-records group called Muckrock. That was well after the Trump administration pushed the pipeline through — the president ordered the Corps to clear the way for the pipeline on Jan. 24, almost as soon as he took office.

The Trump order came as the Corps was working through an additional environmental assessment of the pipeline’s potential impacts. The Corps tabled that study when Trump ordered the agency to issue the easement, which it did on Feb. 8.


That logic has been used repeatedly by federal agencies

to deny information to the public

about “homeland security” safety threats

that are really government failures.


But that did not end the controversy or the lawsuits. Muckrock’s FOIA request was for an environmental assessment that had been completed long before, on July 25, 2016. But on April 21, Damon Roberts, a Corps lawyer, wrote Muckrock’s cofounder Michael Morisy denying Muckrock’s FOIA request.

Interestingly, the reason cited for the denial by Roberts was FOIA’s “law enforcement” exemption. The exemption’s original intent was to keep witnesses safe during ongoing law enforcement investigations. But over the years — especially after 9/11 — it was steadily expanded (without much legal challenge) to cover practically any situation involving public safety.

The Standing Rock Sioux considered the DAPL pipeline a dire and imminent threat to their safety because it could — if it failed — spill oil into their drinking water. But, as wrote Roberts to Morisy regarding the denial, “The referenced document [the environmental assessment] contains information related to sensitive infrastructure that if misused could endanger people’s lives or property.”

That is to say: It could be dangerous if anyone knew how great a threat the DAPL was. It appears a tacit admission that, by permitting the DAPL pipeline, the Corps itself had endangered people.

That logic (and the resulting exemption) has been used repeatedly by federal agencies to deny information to the public about “homeland security” safety threats that are really government failures. It has been applied to chemical safety, dam safety, rail hazmat safety and similar information.

FOIA advocates have argued that this doctrine protects the government and its corporate clients, but does the exact opposite of protecting the public.

Here’s the thing. Roberts used this bogus exemption to refuse Morisy a document that the Corps had already published nearly a year before — and which was still on the Corps’ website, available to the public, including Morisy. See it here.

Moreover, since the environmental assessment was prepared under the National Environmental Policy Act, Roberts’ action may well have been illegal. NEPA (42 USC 4332 (C)(v)) explicitly requires environmental assessments to be disclosed to the public under the FOIA.

As to the Corps’ judgment on public safety, FOIA denial aside, it is worth remembering that the Corps reversed its position on the environmental safety of the pipeline. Under former President Barack Obama, it had questioned the environmental impact of DAPL. Under Trump, it tossed out that study to give DAPL a green light.

That may have been good energy and environmental policy. Or it may have resulted from a donation to Trump’s campaign of over $100,000 from Kelcy Warren, CEO of Energy Transfer Partners, the company building DAPL. Trump sold his stock in the company before the November 2016 election.

The story may not be over. Remember that environmental impact study the Corps deep-sixed after Trump’s executive order? A federal judge ruled June 14 that the pipeline needed further environmental review.

4. Senate GOPers Restrict Hallway Interviews — Then Back off Under Fire

TV network producers and crews were shocked midday June 13 when officials told them they could not conduct on-camera interviews in Senate hallways without prior permission. After just a few hours of outrage, Senate Rules Committee Chairman Richard Shelby (R-Ala.), who had taken it on himself to issue the rule, backed down and seemed to rescind the order.

At a time when media crews are camped out wall-to-wall covering daily scandal hearings — and while Senate GOP leaders were gambling on passing a health bill by keeping it secret — news media access to the legislators doing the people’s business seems more important than ever. Or so said media pundits, Democratic Senators and even a few Republicans.

If Sen. Shelby and the GOPers counted on the public standing for, or the media lying down for, the sudden and unprecedented assault on press freedom, they miscalculated. By late afternoon TV crews were live again from Senate hallways.

The world of news media covering Congress is a complex, consensus-driven ecosystem of traditions, rules, freedoms and power-sharing. For many decades it has changed little and worked well enough to please most. Congress has ceded much of its authority to regulate media activities to the Standing Committee of Correspondents, made up of media representatives.

Day-to-day management of media activities actually falls to a series of press galleries on either the House or Senate side — one for daily media, one for periodicals, one for photographers and one for radio and TV. There is also a separate Executive Committee of Correspondents for the radio-TV galleries. Authority devolves from the House and Senate themselves through the Sergeant at Arms in either chamber, the Capitol Police, and on the Senate side, the Committee on Rules and Administration.

One of the most important things this bureaucracy does is issue Congressional press credentials — the sine qua non of press cards. To get one, you have to be real news media and you can’t have anything to do with lobbying. Once you have one, you can roam much of the Capitol at will. This allows reporters to lurk outside meeting rooms and ask questions of members as they stroll (or race) to the elevator.

Another important function of the galleries is allocating space for media in overcrowded hearing rooms. One key function of the radio-TV galleries is to maintain studio space that broadcast media can use. But allocating turf and camera positions in crowded meeting rooms and hallways is another part of it. TV crews must be credentialed to work in the Capitol.

Shortly after noon local time on June 13, NBC News Capitol Hill correspondent Kasie Hunt tweeted that she had been told by gallery staff that TV crews were to stop filming unless they had prior permission from the Rules Committee, which had issued the order. This was a departure from decades of established practice granting them broad (but not total) leeway.  Almost immediately, a storm of tweeted outrage followed.

Reactions came from media mavens like NPR’s David Folkenflik, who had worked those hallways for years, Marketplace’s Kai Ryssdal and CNN’s Dylan Byers. “It is wrong,” Folkenflik tweeted. The New York TimesClifford Krauss tweeted, “I once covered Congress, and its openness was one of the best examples of transparency in a democracy.”

Prompt criticism came likewise from a number of Democrat Senators: Kamala Harris of California, Jeff Merkley and Ron Wyden of Oregon, Michael F. Bennett of Colorado and Jeanne Shaheen of New Hampshire. Ohio’s Sherrod Brown tweeted “Here’s what I think of the Rules Committee telling reporters they can’t question senators in the hallway,” and added a photo of him doing a hallway TV interview.

Objections also came from groups like the Sunlight Foundation and the American Civil Liberties Union.

The sharpest critique came from Minority Leader Chuck Schumer of New York, who tweeted “Press access should never be restricted unfairly, particularly not when one party is trying to sneak a major bill through Congress.” He was referring to the secret GOP health-insurance repeal bill.

But even several GOP Senators tweeted misgivings: Ted Cruz of Texas, John McCain of Arizona and Bob Corker of Tennessee, among them. "As you know, I'm always happy to talk to y'all," Corker said through an aide.

“Attacking the free press & banning reporters is at war with who we are as Americans,” Sen. Michael Bennet tweeted. “This can't stand.” He offered his conference room to reporters barred from doing interviews in hallways.

Sen. Amy Klobuchar of Minnesota, the ranking Democrat on Senate Rules, didn’t like it either (“I call on the majority to allow reporting in the Capitol to proceed as usual,” Klobuchar tweeted).

It soon became apparent from several reports that Shelby had acted unilaterally and without talking to either Democrats or Republicans on the committee. After Klobuchar had finally talked to Shelby Tuesday afternoon, she tweeted, “He said he wouldn't move forward on change to press access without consulting me and we must hold him to it.”

Within hours of the initial report, Shelby had issued a written statement:

"The Rules Committee has made no changes to the existing rules governing press coverage on the Senate side of the Capitol complex. The Committee has been working with the various galleries to ensure compliance with existing rules in an effort to help provide a safe environment for Members of Congress, the press corps, staff, and constituents as they travel from Senate offices to the Capitol. Once again, no additional restrictions have been put in place by the Rules Committee."

It was a non-clarification “clarification.” Those who looked up the “existing rules” might well get confused. “Videotaping and stakeouts in the Capitol and the Congressional complex require permission and are prohibited outright in some areas,” the rules state — but then they add: “Videotaping and audio recording are permitted in the public areas of the House and Senate office buildings.”

But the Shelby “no changes” statement, in context, was read by galleries and reporters as a clawing back or reversal of whatever the sudden no-filming-without-permission decree had been. That was the take of Shelby’s home-state, as well as CNBCRoll Call and the Washington Post.

Given the “existing rules,” gallery staff and Sergeant at Arms staff often have to manage crowded hallways, overflowing hearing rooms, and scrums of excited and competitive reporters — a job which they usually do fairly and effectively.

The scrums have gotten worse this year. Just a few days before the abortive hallway crackdown, the Washington Post had taken note of the hallway chaos with a piece headed “Inside the heaving, jostling Capitol media mob: ‘We are one tripped senator away’ from disaster.”

The Society of Environmental Journalists has in the past taken stands in favor of unhampered news media access to public officials in the Capitol complex. During an April 2014 scrum, Bloomberg reporter Ari Natter was briefly detained by Capitol police after trying to interview then-EPA Administrator Gina McCarthy. SEJ protested and the Capitol police apologized.

* From the weekly news magazine SEJournal Online, Vol. 2, No. 26. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main pageSubscribe to the e-newsletter here.  And see past issues of the SEJournal archived here.

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