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By Rachel Leven
Feb. 8 — No environmental or public interest groups have disclosed lobbying the agency that regulates pipeline safety and hazardous transport, according to a Bloomberg BNA analysis of Senate lobbying.
Some of these groups said their efforts to influence the agency have occurred below reporting thresholds but believe a disparity exists in who seeks to impact agency rules and guidance.
Environmentalists and public groups said the disparity related to the Pipeline and Hazardous Materials Safety Administration within the Transportation Department may be because of resource, technical or other barriers. But industry representatives said that their strong track record on safety may mean it is not an obvious focal point for activists.
“I think it’s fair to say [that] pipelines and train bombs have not gotten quite as much attention as fracking and other aspects of the climate change Rubik’s cube,” Bill Snape, senior counsel for the Center of Biological Diversity, told Bloomberg BNA.
Observers say Senate Office of Public Records filings may not be a comprehensive way to compare groups’ lobbying activities, given that the thresholds for disclosure vary for Congressional lobbying and for nonprofits registered as 501(c)(3) organizations under the tax code. For example, the lobbying forms do not require listing stakeholder engagement activities that can provide critical public input to government regulators.
Even if imperfect, lobbying records are one of the few concrete glimpses into who is aiming to influence an agency. The gap observed by those documents may represent a lack of diversity in whose—and potentially what solutions—are being offered on safety regulations for an industry with infrequent, but high consequence incidents.
For its part, PHMSA told Bloomberg BNA in an e-mail that it “makes a concerted effort to engage and include a diverse group of stakeholders to improve safety and protect the public,” citing meetings, workshops and other efforts to “improve transparency by inclusive and balanced engagement with stakeholders.”
The low focus on PHMSA may intensify in the near future, activists said. The change would stem from the Aliso Canyon Well failure in Los Angeles that forced more than 4,400 people to evacuate their homes, events which have captured national headlines, Elgie Holstein, senior director for strategic planning for the Environmental Defense Fund, told Bloomberg BNA.
PHMSA was established under the Norman Y. Mineta Research and Special Programs Improvement Act (Pub. L. No. 108-426) that was signed into law Nov. 30, 2004.
Only three groups disclosed lobbying the agency by 2007. In the fourth quarter of 2015, 24 entities listed contacts with PHMSA on their Senate disclosure forms.
Over time, the small group has included some major companies such as SpaceX, TransCanada Pipelines Ltd., Norfolk Southern Corp., Dow Chemical Co., American Airlines and Shell Oil Co. It also has included prominent industry trade associations such as the American Petroleum Institute, the Association of American Railroads, the Renewable Fuels Association, and the American Farm Bureau Federation.
Only two—the city of Salt Lake City, Utah and the International Association of Fire Chiefs—have not been a company or an industry group neither of which would generally be regarded as a public interest or environmental group.
It is difficult to interpret what the findings mean. Different reporting methods are used by different groups.
Under the Lobbying Disclosure Act, only contacts with the highest level of executive branch officials must be disclosed, Howard Marlowe, the former president of the American League of Lobbyists, told Bloomberg BNA.
One can be dealing with people in the senior executive service “that are making decisions and in very important positions” and not have to disclose those interactions, Marlowe, president of Warwick Group Consultants LLC, said.
Equally important is what can go missing. For example, lobbyists only must register and disclose lobbying activities each quarter if they hit certain monetary and activity thresholds.
There could be activities occurring by public or environmental groups below these thresholds that don’t need to be reported, meaning that the disparity in lobbying may not be as stark as it initially appears, Marlowe said. Some environmental and public interest groups confirm this, although they say there is still a disparity.
Additionally, at least some environmental groups have disclosed lobbying Congress on specific hazardous materials movement issues, such as crude-by-rail. But filings that disclose lobbying of Congress on issues such as pipeline safety and crude-by-rail in recent years reveal less interest by environmental and public interest groups than by industry.
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Some groups said the lobbying findings largely match their experiences in the issue area. Richard Kuprewicz, a public citizen representative on the federal Liquid Pipeline Advisory Committee says he is charged with speaking for those most likely to be affected by a new or existing pipeline. The public is underrepresented and more voices are needed, Kuprewicz said.
“Hardly any environmental nonprofits focus on pipeline issues. From our standpoint, that’s kind of sad. We’d love to have some allies,” Carl Weimer, executive director of the Pipeline Safety Trust, told Bloomberg BNA. “There’s room to lobby on issues that PHMSA has control over.”
For some activists, this has been a prioritization and resource decision. For example, Holstein of the Environmental Defense Fund, whose group does lobby in general, has focused very little on PHMSA-related pipeline issues because his goal has been controlling methane emissions from the oil and gas sector. He characterizes their lobbying of the agency as “de minimis.”
The group could have more impact targeting Environmental Protection Agency and Interior Department-related actions, rather than PHMSA, Holstein said.
John Stoody, vice president of government and public relations for the Association of Oil Pipe Lines, added that the sector may draw less environmental and public industry scrutiny due to its safety record.
“I think it’s a reflection [of the fact that] they’re safe, economical and, therefore, kind of boring,” Stoody, whose group has disclosed lobbying the agency, said.
Weimer said he worries about the lack of scrutiny. These lines are “out of sight, out of mind,” he said.
Additionally, the technical nature of some of these issues could prove daunting to public interest groups. The industry has access to broad information resources, Weimer, whose group is the most active public interest pipeline safety-specific nonprofit, said. He added that his organization's lobbying falls below disclosure thresholds.
“A lot of times industry, just because of their abilities, end up writing the rules,” Weimer said.
But Weimer emphasized that on pipeline safety public commenters could broaden awareness and improve PHMSA outreach.
At least one environmental group has given up lobbying PHMSA. Snape of the Center for Biological Diversity, which occasionally lobbies federal agencies, said it is not worth trying to lobby PHMSA because they oppose its mission. PHMSA regulates transport of oil and gas, and Snape’s group believes those resources should be left in the ground.
“PHMSA continues to kowtow to the industry it regulates, forcing public interest groups trying to protect the public and environment from harm to seek time-consuming and costly court intervention,” Jared Margolis, staff attorney at the CBD, told Bloomberg BNA in an e-mail. “Working with an agency that is so clearly captured by industry is a futile effort.”
Not everyone shares the view that it is difficult to work with PHMSA, although Weimer said that 10 or 15 years ago “it was hard to figure out where regulators ended and industry began.” Holstein said PHMSA had reached out to his organization, aiming to see how they could improve their outreach. Stoody also noted that PHMSA has reached out to his group. Weimer and Kuprewicz said that PHMSA is aiming to improve transparency and outreach, even if they have a ways to go.
Brigham McCown, who was the acting administrator for PHMSA, told Bloomberg BNA these disclosures are far from the “complete picture of stakeholder input to PHMSA.”
The rulemaking process and other venues outside of lobbying offer a number of opportunities to comment, McCown said. For example, Kuperwicz highlighted how the pipeline-affected public’s voice is elevated through federal advisory committees.
McCown disagreed with many of the environmentalists and public interest groups on whether their voices are heard by PHMSA. When asked whether environmentalists and public interest groups are sufficiently represented in general, McCown said “Yes, I think so.”
“In general, I would say that the process works and there’s plenty of opportunity for input,” McCown, now the president and chief executive officer of Nouveau, Inc., said.
Weimer—at least for pipeline safety—said there is a clear imbalance in who is lobbying and who is taking an interest in the issues, but he says the ground may be shifting.
Holstein said his group has “gotten increasingly interested in PHMSA’s bailiwick,” in the wake of the recent Aliso Canyon Well failure in Los Angeles that has released more than 84 million kilograms of the potent greenhouse gas methane into the atmosphere.
Holstein said his group has discussed jurisdictional questions with PHMSA over the natural gas underground storage facility, and would not be surprised if other environmentalists are targeting the agency as well. The agency has said it is developing rules for these facilities but did not elaborate on details.
In Weimer's view, this increased activist involvement is important. His organization was initially funded as a watchdog group by a 2003 court-order that dedicated $4 million in criminal fines as a result of a 1999 Olympic Pipe Line Co. pipeline rupture in Bellingham, Wash. that killed three people.
When asked why public input was important, Weimer pointed to that 2003 court sentencing where Judge Barbara Rothstein of the U.S. District Court for the Western District of Washington said “with $4,000,000 … they’re nowhere near the lobbying potential of the oil industry. It’s not even David and Goliath. It’s more like Bambi and Godzilla.”
“They need to make a difference, because they are the ones that will be the watchdogs. No industry polices itself very well,” Rothstein said. “You need outside people, and these are going to be the people so pay attention to them,” she added.
Bloomberg BNA contacted a broad array of industry-related groups and individuals who declined to comment on the record for this article.
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