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Jan. 13 — Even as President Barack Obama stands accused of waging a “war on coal,” his administration has pressured federal regulators to conduct a less rigorous environmental review than they thought was proper for a proposed coal-export project on the Columbia River, administration documents show.
Documents obtained under the Freedom of Information Act reveal that the White House convened a series of meetings that ended with U.S. Army Corps of Engineers officials in the Pacific Northwest abandoning their conviction that the National Environmental Policy Act (NEPA) required them to conduct a comprehensive environmental impact statement on the proposed Coyote Island Terminal.
The proposed terminal—which would be 272 miles east of the mouth of the river—is one of three such proposed projects in the Northwest. Decisions about the terminal established a regulatory template for the other two that cumulatively would more than match the total U.S. coal exports in 2014, which were estimated at 96 million tons.
That blueprint means the federal government won't analyze the climate change impact of burning U.S. coal in Asia, the trans-Pacific migration of toxic mercury that rises from smokestacks in China and rains down on the continental U.S. or the effects on communities across the Northwest of 1.5-mile-long trains hauling coal from strip mines on federal lands in Montana and Wyoming.
Documents from the White House Council on Environmental Quality (CEQ) and the corps—obtained through FOIA requests by Bloomberg BNA in 2012 and 2013—revealed that the White House meetings had taken place.
Additional corps documents were recently obtained through FOIA requests by Columbia Riverkeeper, one of many environmental groups that, along with Indian tribes, ranchers, grass-roots organizations and many elected Democratic leaders at the state and local level, have been working to stop the terminals.
Opposition to the coal export terminals has come largely from Obama's political allies in Oregon and Washington, two states that were considered safe for the president in the run-up to the 2012 election. And Obama won in both states.
The documents provide new examples showing that even as President Obama has initiated domestic programs to curb climate change, his administration also has moved to ensure that the federal regulatory process does not inhibit the export of U.S. fossil fuels.
The Obama administration's involvement in these sweeping policy decisions on coal exports was underscored in a Jan. 9 telephone interview with Jennifer A. Moyer, chief of the corps' regulatory program. She summarized her June 2013 testimony before Congress, saying, “The effects of the burning of coal in Asia were too far attenuated and removed from our scope of analysis to be considered as part of our permit process”.
Asked by Bloomberg BNA whether she coordinated her testimony with the White House Council on Environmental Quality (CEQ), she said, “My testimony was cleared by the administration.”
The Coyote Island Terminal—also known as the Morrow Pacific Project—would transfer 8.8 million tons annually of strip-mined coal, mainly from U.S. government land administered by the Bureau of Land Management, to another facility down river, where it would be loaded onto vessels bound for countries such as China, Korea and Taiwan. Ambre Energy, an Australia-based company, was reported in November by The Oregonian and other media in the Northwest to be in the process of selling Coyote Island to the Denver-based private equity firm, Resource Capital Funds.
After the CEQ convened its meetings, the corps in the Northwest reversed a pending decision to conduct a comprehensive environmental impact statement on Coyote Island in favor of a far less rigorous environmental assessment.
In the opinion of the Corps of Engineers Portland, Ore., district office, the decision was contrary to the mandates spelled out in NEPA. And it had broad implications beyond Coyote Island. It was during the series of White House meetings in 2012 that the corps decided not to analyze what impacts the other two proposed coal export projects would have on the environment, including the climate change consequences of burning billions of tons of U.S. coal in Asia.
The White House has conducted in secret its policy oversight of how the Corps of Engineers implements NEPA, declining several requests since 2012 from Bloomberg BNA to reveal what agency leaders were told by the CEQ. And the CEQ documents produced under FOIA were significantly redacted.
In a Jan. 9 e-mail, CEQ Communications Director Taryn Tuss told Bloomberg BNA: “As I previously told you, the Corps made its own determination on its [National Environmental Policy Act] review, they were not acting under CEQ direction. Questions about their decisions should be directed to them. CEQ does not direct agencies how to conduct their NEPA reviews and did not do so in this case.”
An unredacted fragment of a White House e-mail written by CEQ Associate Director for NEPA Oversight Horst Greczmiel to convene an August 2012 meeting called for a discussion of the issues surrounding the Coyote Island project to provide an example of how the administration would proceed “as we move forward with additional [permit] applications, lease sales, mining operations and potential rail improvements.”
Tuss did not respond to Bloomberg BNA requests to make either Greczmiel or CEQ Chairman Michael Boots, who is leaving the administration in March, available for an interview. Tuss also didn't respond to BNA's request to enumerate the reasons behind White House secrecy on what guidance it gives to agencies such as the corps on how to implement NEPA.
The newly released documents obtained by the Riverkeeper, combined with interviews by Bloomberg BNA with corps personnel, reveal that corps officials who participated in or were briefed on the White House meetings were directly involved in reversing the decision reached by the corps' Portland district office: that NEPA clearly required a comprehensive environmental impact statement on the Coyote Island project.
The same corps officials involved in making the call on Coyote Island also were involved in the decisions to exclude from consideration the climate change impact of Asian combustion of U.S. coal in analyzing the impacts of the other two larger coal export projects—the Gateway Pacific Terminal on waters north of Puget Sound and the Millennium Bulk Terminals in Longview, Wash.
It is unusual for corps leaders in Washington, D.C., to reach down to the regulatory trenches to share guidance from the CEQ.
A June 4, 2012, e-mail sent to David Gesl, the corps Northwestern Division (NWD) regulatory chief in Portland, Ore., alerted him to a meeting with the CEQ in three days. The e-mail from Margaret Gaffney-Smith, then civilian head of the corps regulatory program, reads: “Dave—I would like you to phone in for this call with CEQ so that you are fully aware of the authorities and responsibilities as well as understanding CEQ's guidance on this action. These calls are typically limited to Agency HQ staff so at this time we'll include NWD and rely on NWD to share information with NWP/NWS” (corps line offices in Portland and Seattle).
Two days after the June 7 meeting with the White House CEQ, Gesl wrote in an e-mail to Brig. Gen. John R. McMahon, who was then commander of the Northwestern Division: “The Council on Environmental Quality facilitated a teleconference on 7 June to summarize statutory authorities and involvement in the review of the proposed terminal facilities and to provide preliminary feedback on what direct, indirect and cumulative effects may be considered within each agencies' control and responsibility.”
Notwithstanding the e-mails, Gesl, Gaffney-Smith and Gaffney-Smith's successor, Jennifer Moyer, all said in interviews that the CEQ didn't provide any guidance to the corps on how to proceed or on the scope of environmental analysis for all three coal export terminals. Rather, they said, the series of meetings were convened to decide how to respond to letters from Oregon Gov. John Kitzhaber (D) and tribal leaders who oppose the coal projects.
Moyer said in a Jan. 9 telephone interview: “In the calls I participated in, CEQ wasn't providing feedback on what was going to be included” in the scope of environmental analysis. “We talked about our agency statutory authority, engagement involving the mines in Montana and Wyoming, and we gave project status updates in terms of where the [corps] districts were in terms of review of applications.”
Moyer added, “Each agency did talk about how or if we would look at greenhouse gas emissions and in what context.”
Gesl acknowledged in a Jan. 6 telephone interview that his e-mail reporting to McMahon about the June 7 meeting gives the impression that the CEQ was telling the corps how to proceed with its environmental analyses. “There was no guidance from CEQ,” Gesl said. “We never got any sort of guidance, any sort of course of action on it.”
Gesl said that other than Jennifer Moyer's testimony before Congress—which Moyer said was cleared by the Obama administration—no one ever instructed him on what the scope of environmental analysis should be. The testimony, he said, “was telling us we do not have responsibility and control over rail; we do not have responsibility and control over mining coal; we do not have responsibility and control over end use of coal. You look at that testimony and that's the only thing we were told, through that testimony. This is our position.”
More meetings with the CEQ ensued over the summer of 2012. The documents obtained by Riverkeeper reveal that during that summer, the line corps office in Portland had come to the conviction that a comprehensive environmental impact statement was required even though corps headquarters insisted a much more cursory environmental assessment was the proper choice.
An Aug. 31, 2012, e-mail from the then-comander of the corps district office in Portland, Col. John W. Eisenhauer, said he had determined that “it is obvious an EIS is required.” His e-mail and other documents cite case law and CEQ regulations governing the implementation of NEPA that led Eisenhauer to believe a full environmental impact statement was required for the Coyote Island Terminal
A Sept. 12, 2012, e-mail from Eisenhauer's chief of operations, James Mahar, to the colonel reads:
“Colonel Eisenhauer, A thought—Regardless of the reasons for strong push-back from HQ the subject [at] issue appears to hinge exclusively on process, namely completion of an EA first. After careful review of the draft `Requirements Analysis' for proceeding directly to an EIS, there remains no doubt our current course of action is correct. However, because the concern is process driven and not substantive, perhaps we acquiesce and complete the EA despite the fact we will conclude with several findings of significant impact and move forward with the EIS. It's not the best business practice but it may settle the politics and get … back on track toward meaningful progress.” An EA, or environmental assessment, is a less intensive review.
Three minutes later, Eisenhauer responded to the e-mail with: “We can do that, but at additional expense to the taxpayer. It comes down to, knowing we'll need an EIS, should the taxpayer foot the bill for the remainder of the EA with the same outcome or should the applicant foot the bill for information that will ultimately be included in the EIS?
“It is left up to my judgment of whether or not to proceed with an EA, but I have the same question. Namely, even if we do fully complete the EA are we going to get additional pushback when it results in a determination to go to an EIS. One wonders.” It was signed: “COL Ike.”
Asked about the pressure she and others from corps HQ placed on Eisenhauer, Moyer said: “From our national perspective, a project of this scope that the district had done before wouldn't have triggered an EIS. So we were asking questions and making edits to stimulate thought on the district's part to get them to think, ‘Are we being consistent with ourselves' in Portland District.' ”
Moyer said the Coyote Island project involved only a relatively small dock that she said would not normally trigger an impact statement. “And that's what we questioned. That's what we were asking the district: to help fill in those details. We weren't understanding the triggering of significance in what the district had provided. And we were asking questions to understand that better.”
Eisenhauer's staff put together a “draft predecisional” memorandum that listed a number of potential environmental effects from the Coyote Island Project, including:
• the impact on 16 species of fish listed under the Endangered Species Act;
• the impact on the treaty fishing rights of several tribes;
• transiting of coal barges through the Columbia River Gorge National Scenic Area, one of about ten such areas in the U.S.;
• navigational hazards from increased traffic on the working river; and
• the possibility of spontaneous combustion of coal in the covered barges.
Eisenhauer's staff wasn't alone in having concerns. Earlier that year, the Environmental Protection Agency sent a letter calling on the corps to conduct a broad-scope, cumulative environmental impact statement of all the proposed coal-export terminals together. The April 5, 2012, letter includes a litany of possible impacts on human health, endangered species, global warming and traffic.
“Consider, for example, the cumulative impacts to human health and the environment from increases in greenhouse gas emissions, rail traffic, mining activity on public lands, and the transport of ozone, particulate matter and mercury from Asia to the United States,” the EPA wrote.
The corps, after consulting with the CEQ, decided to take none of these effects into account.
Eisenhauer complied with corps headquarters and his office announced in the fall of 2012 that it would conduct the less rigorous environmental assessment. Eisenhauer, now retired from the Army and working as a consultant, declined a Bloomberg BNA request for an interview.
In September 2014, the corps said it had to suspend the Coyote Island environmental assessment because Oregon regulators had rejected a state removal-fill permit for the project.
A major reason given by the state was the project's impact on Indian treaty fishing rights. The rejection is under appeal, and the corps said that “if the state later grants authorization for the project to continue, Coyote Island Terminals LLC can request the Corps resume its permit application review.”
The corps' environmental impact statement on the other two much larger coal export proposals remains in progress. The corps had intended to conduct both environmental impact statements jointly with the state of Washington. But the state and the corps parted ways when Washington regulators—under guidance from Gov. Jay Inslee (D)—insisted on conducting its own, far more detailed analyses including the climate change impact from combustion of U.S. coal in Asia.
To contact the reporter on this story: Paul Shukovsky in Seattle at firstname.lastname@example.org
To contact the editor responsible for this story: Heather Rothman at email@example.com
The predecisional memorandum from Col. Eisenhauer's staff is available at http://op.bna.com/der.nsf/r?Open=tbay-9sqn7s.
Col. Eisenhauer's response to Mahar is available at http://op.bna.com/der.nsf/r?Open=tbay-9sqndw.
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