New Keystone XL documents raise fresh concerns about State Department

Thursday, November 17, 2011

TO: Interested parties
FROM: Friends of the Earth
SUBJ: New KXL FOIA docs raise more concerns about State Department collusion with TransCanada as well as potential cover-up; docs have important implications for new environmental review announced by Obama administration

Despite conclusive evidence (see https://foe.org/news/blog/keystone-xl-pipeline-influence-scandal) that the State Department has overseen a corrupt Keystone XL tar sands pipeline review process, the Obama administration indicated last Thursday (November 10) that the department will remain in charge of the new environmental review of the proposed pipeline.

But additional evidence has surfaced that will complicate the State Department’s bid to oversee this review. Friends of the Earth and allies have received a third tranche of documents in response to our Freedom of Information Act request and what is hidden from view is just as concerning as the further evidence of collusion with TransCanada that is revealed. The evidence indicates State Department employees have inappropriately shown favoritism toward TransCanada – acting as though it was their job to ensure the pipeline was approved rather than that an impartial review was conducted. It also shows that the department is hiding something.

Redactions (catalogued below) litter a series of exchanges around two internal State Department Keystone XL meetings, raising cover-up concerns. On January 13, 2011, the day after Friends of the Earth announced we would appeal State’s decision to deny our initial FOIA request, correspondence surrounding changes to the agenda of an internal State Department KXL meeting occurring the following day is heavily redacted.

Exchanges surrounding the agenda for a May 27, 2011 KXL meeting are also heavily redacted. The redactions include exchanges between high-level Keystone XL decision makers, as well as the subject line, attachment list, attachments and full body of an email sent by Michael Stewart, who the third tranche of emails indicates may be one of the key State employees with inappropriately cozy relationships with TransCanada.

It’s worth noting that the third tranche of documents is the first with such significant redactions. Some of the documents we were provided also refer to attachments or other emails which we were not provided and which would seem to be responsive to our FOIA request, but that State failed to release or even list as being withheld. The State Department appears to be withholding these documents in violation of the Freedom of Information Act. This begs the question: What is the State Department hiding and why is it doing so now? Is the increase in secrecy a response to the withering criticism State has faced as evidence of lobbyist influence, bias and conflicts of interest in the review process mounts?

Further indications (catalogued below) of collaboration and collusion between State and TransCanada are also present. From the first and second round of documents we already knew that State employees had provided improper coaching to TransCanada, literally cheered TransCanada lobbyist Paul Elliott and had a tacit understanding with TransCanada that the company could reapply to pump oil at higher pressures after withdrawing the initial application in August 2010 in response to public pressure.

The third tranche offers more evidence that State employees were inappropriately collaborating with TransCanada on the pipeline pressure issue, with TransCanada potentially even waiting for State officials to sign off on the firm’s strategy of withdrawing the waiver application in order to gain political support.
The documents also show that Michael Stewart, an energy officer with State’s Bureau of Economic, Energy and Business Affairs who was called the “guru on all things Keystone XL” in previously released documents, went on a special tour of the Keystone I control room in Calgary with TransCanada executives. TransCanada’s relationship-building efforts appear to have paid off with access. In response to an email chain in which State employees are planning a September 8, 2010 meeting with TransCanada executives and lobbyist Paul Elliott, Stewart writes replies directly to Dan Clune as if the TransCanada executive were a dignitary, saying, “the man coming from calgary is the vp who showed us around the control room, so I’m glad that you will be able to receive him.”

Elliott also put Stewart in touch with TransCanada’s regulatory lawyer shortly before, according to documents released in the first FOIA tranche, a State official provided the “insight” that State was considering a two-year delay in its pipeline review to a TransCanada lawyer and sought the firm’s input.

Troubling indications of coordination between State and TransCanada on media and political strategy also surface in exchanges involving Matthew McManus, Energy Producer-Country Affairs Division Chief, also with State’s Bureau of Economic, Energy and Business Affairs. For instance, in an email chain leading up to a September 8 meeting with TransCanada, McManus indicates that he views the meeting as an opportunity to “be able to address the Nebraska/water issues with one voice,” raising the alarming possibility that the State Department may have been collaborating with TransCanada to push back against Nebraskans’ concerns. And in another email that raises more questions than it answers, McManus emails Elliott about “Reuters” and – presumably in an effort to cover State employees’ tracks – asks Elliott to remove an email address from the CC field when another (not supplied) email is forwarded. This email raises the question of whether State and TransCanada were coordinating on media strategy as well as what was contained in the email that Elliott planned to forward after deleting the address from the CC field.

The FOIA documents also reveal that in at least one lobby meeting orchestrated by Paul Elliott betweem TransCanada and the State Department, the contractor Cardno Entrix was also present. This revelation raises further questions about the role played by Cardno Entrix, which listed TransCanada as one of its major clients while its was supposed to be helping to draft a probing, serious, science-based environmental review.

Taken together with the other already public evidence of corruption in the State Department’s review process, this third tranche of documents should disqualify the State Department from playing any role in the new environmental review. Certainly, President Obama should not allow State to move forward until an ongoing Office of Inspector General investigation is complete. And the presence of Cardno Entrix at lobby meetings orchestrated by TransCanada lobbyist Paul Elliott adds further evidence that Cardno Entrix was not a neutral analyst and should have no further involvement in the EIS process.

Moreover, it is important to remember that the documents obtained thus far via FOIA only pertain to one TransCanada lobbyist. It is entirely possible that even more damning emails will come to light as the State Department releases more documents in response to our amended FOIA request, and as the Office of Inspector General investigates.

The cover-up and collusion concerns raised by these documents are detailed further in the following catalogue.
Overview of key contents of third tranche of documents released in response to our FOIA request.

Key documents pertaining to concerns about improper collaboration between State and TransCanada.

Key documents with troubling redactions.

The full third tranche of documents released by the State Department can be found at https://www.yousendit.com/download/T2dkM25LeFhsamNsYzhUQw

*** REDACTIONS AROUND KXL MTG AGENDA RAISE COVER-UP CONCERNS ***

Thursday, January 13, 2011 8:33 AM
0085
Denise Yeboah circulates a proposed agenda for the following day’s Keystone XL meeting. This email is not redacted, but the attached agenda draft appears not to have been provided in response to our FOIA request.

Thursday, January 13, 2011 between 8:33 a.m. and 10:57 a.m.
0086
Someone responds to Yeboah’s 8:33 a.m. email, but the full message is redacted. There is reason to believe John Schnitker sent a redacted email in response to Yeboah’s 8:33 a.m. email (see reference to document 0090 below), but it is unclear if Schnitker’s redacted response was the same redacted email as this one.

Thursday, January 13 10:57 a.m.
0086
Daniel Clune forwards to Kerri-Ann Jones the aforementioned redacted email response to Yeboah’s 8:33 a.m. agenda email.

January 13, 2011 5:00 p.m.
00101
NOTE: THIS EMAIL APPEARS IDENTICAL TO THE FOLLOWING EMAIL (IN 0090) EXCEPT THAT IT HAS A TIME STAMP THAT IS DIFFERENT BY ONE MINUTE. Denise Yeboah circulates a revised agenda, attached as a Word document. Her email is in response to a redacted message that was in response to her 8:33 a.m. agenda email. This 5:00 p.m. email has the same set of recipients as the 5:01 p.m. email.

SOMETIME AFTER January 13, 2011 5:00 p.m.
0096
This fully redacted email is in response to Yeboah’s 5:00 p.m. January 13 email with an updated agenda for the weekly meeting.

SOMETIME AFTER January 13, 2011 5:00 p.m.
00101
This fully redacted email is in response to Yeboah’s 5:00 p.m. January 13 email with an updated agenda for the weekly meeting. It is unclear whether this email is different than the one referenced above (in 0096).

January 13, 2011 5:01 p.m.
0090
NOTE: THIS EMAIL APPEARS IDENTICAL TO THE PREVIOUS EMAIL (IN 00101) EXCEPT THAT IT HAS A TIME STAMP THAT IS DIFFERENT BY ONE MINUTE. Deniece Yeboah circulates a revised agenda, attached as a Word document. Her email is in response to a redacted message that was in response to her 8:33 a.m. agenda email. This 5:01 p.m. email has the same set of recipients as the 5:00 p.m. email. This begs the question: what changed between the emails Yeboah sent at 5:00 p.m. and one minute later? It is possible that the redacted email Yeboah’s email responds to was sent by John Schnitker as his name has been reordered to appear first in the “to” field. Seth Pfeifer has been added to the email chain between 8:33 a.m. and now.

PRESUMABLY January 13, 2011
0090A
A document contains an agenda for the weekly Keystone XL meeting set to take place on Friday, January 14, 2010 [presumably this is a typo and the agenda actually refers to a 2011 meeting]. Items 1 and 3 are redacted. Item 4 is about the Department’s “apparent” rejection of our FOIA request. Why are the other two items redacted? Presumably this is the version of the document attached to the 5:01 p.m. email from Yeboah as that email is document 0090.

Tuesday, February 8, 2011, 9:16 a.m.
00103
Nearly a month after the meeting, Michael Stewart sends a response to a fully redacted email in response to Yeboah’s 5:00 p.m. January 13 email with an updated KXL agenda. Stewart’s email is to Keith Benes and CC’s Daniel Clune and John Schnitker. The subject line is redacted (other than that the email is a forward). The attachments list is redacted. The attachments are classified as sensitive. The body of the email is also redacted.

*** REDACTIONS RELATED TO ANOTHER MEETING ***

Wednesday, May 25, 2011 9:59 a.m.
00141
Denise Yeboah circulates a draft agenda for the department’s weekly KXL meeting the coming Friday. The agenda is attached in a Word document, but this version of the agenda appears not to have been provided in response to our FOIA request.

Wednesday, May 25, 2011 between 9:59 a.m. and 5:53 p.m.
00141
A fully redacted email (we think this was likely sent by John Schnitker due to the reordering of the “to” field in a later response) is sent in reply to Yeboah’s email.

Wednesday, May 25, 2011 5:33 p.m.
00138
John Schnitker responds to Yeboah’s 9:59 a.m. email and recommends adding Friends of the Earth’s lawsuit regarding our FOIA request as well as a National Wildlife Federation FOIA request to the agenda.

Wednesday, May 25, 2011 5:53 p.m.
00141
Denise Yeboah responds to the redacted email from earlier in the day with an updated draft agenda.

Likely Wednesday, May 25, 2011
00141A
This is the attached revised draft agenda for Friday, May 27’s KXL meeting. Agenda items 1 and 2 are redacted. It is not clear how the agenda may have changed as it was revised.

Between Wednesday, May 25, 2011 9:59 a.m. and Thursday, May 26, 2011 8:33 a.m.
00144
A fully redacted email (we think this was likely sent by John Schnitker due to the reordering of the “to” field in a later response) is sent in reply to Yeboah’s 9:59 a.m. May 25 email. This may be the same redacted email noted above.

*** INDICATIONS OF COLLABORATION AND COLLUSION BETWEEN STATE AND TRANSCANADA ***

Tuesday, June 22, 2010
EB2
Paul Elliott emails Mathew McManus to thank McManus for putting him in touch with Michael Stewart. Elliott indicates State officials are coordinating with TransCanada on pipeline pressure issues, potentially a joint effort to deal with outside pressure.

Wednesday, June 23, 2010
E209
Michael Stewart indicates to lobbyist Paul Elliott that he has received contact information for TransCanada’s Keystone regulatory lawyer. This is particularly interesting because the next week, as we learned from the first tranche of documents released by State, Elliott emailed State official Nora Toiv and said a State official had provided the insight that State was considering a two-year delay in its pipeline review to a TransCanada lawyer, and that the State official also invited TransCanada’s input. This Wednesday, June 23 email indicates Stewart had recently been in touch with a TransCanada lawyer and so may have provided the insight that Elliott references.

Monday, August 2, 2010
0019
Michael Stewart emails several State Department staff in advance of a Tuesday, August 3 meeting with TransCanada and contractor Entrix. Stewart lists Elliott and other TransCanada participants, mistakenly identifying them as with DOT. In the same email, Stewart writes, “They still haven’t heard any official word about withdrawing the waiver for the Keystone XL.” This was days before TransCanada publicly announced it would withdraw its waiver to pump tar sands oil at unusually high pressures – a proposal emails indicate TransCanada had previously discussed with State officials. This email may indicate TransCanada was waiting for State officials to sign off on its strategy of withdrawing the waiver application in order to gain political support. Such collaboration between State and TransCanada would be inappropriate.

Wednesday, September, 1, 2010
0035
Michael Stewart responds to an email chain in which State employees are planning an upcoming September 8 meeting with TransCanada executives and lobbyist Elliott. Stewart says he is glad that Dan Clune will attend the upcoming meeting as one of the TransCanada executives who will attend had previously given a tour of a Canadian facility to Stewart. This shows that TransCanada’s relationship-building efforts have helped it scure an inclination toward granting it more access at State.

Friday, September 3, 2010
0042
Matthew McManus responds to an email chain in which State employees are planning an upcoming September 8 meeting with TransCanada executives and lobbyist Elliott. McManus indicates that he views the meeting as an opportunity to “be able to address the Nebraska/water issues with one voice.” The email suggests collusion between State and TransCanada. The implication is that the State Department wanted to come to agreement with TransCanada on messaging to address Nebraskans concerned about the safety of their water.

October 27, 2010 9:09 p.m.
EB6
In an interesting email chain that implies the existence of pertinent documents that were not released in response to our FOIA request, Matthew McManus emails Paul Elliott with the subject line “Reuters.” The body of the email says simply, “Kindly remove the cc line from my email when you forward, it is the pipeline team obviously.” This implies that Elliott plans to forward some other email from McManus to some other audience. Potentially this is a response to a Reuters story that appeared earlier in the day titled “Exclusive: State Dept: Keystone decision months away.” The likelihood that pertinent documents were not turned over in response to our FOIA request, as well as this email’s implication that a State official and Paul Elliott were coordinating on media or political strategy, are troubling.

*** LAWYERS PRODUCED EMAILS ABOUT PAUL ELLIOTT THAT WERE NOT RELEASED OR LISTED IN RESPONSE TO OUR FOIA REQUEST ***

Monday, December 13, 2010
0067
This email chain is in response to a reporter’s question at the daily State Department media briefing about Paul Elliott’s relationship with Secretary Clinton. Michael Koplovsky emails that State Department lawyers “have been deliberating/discussing by e-mail for the last two hours.” Even if State decided it had cause to withhold these emails from its response to our FOIA request (a decision that could be challenged in court), it is still obligated to list these emails as withheld, which it did not do.

*** EMAIL ABOUT CLINTON’S CONNECTION TO LOBBYIST IS REDACTED ***

Monday, December 13, 2010
0065
After Daniel Clune forwards a Friends of the Earth news release about the connections between Secretary Clinton and lobbyist Elliott to Keith Benes and John Schnitker, Benes responds. The full Benes response is redacted.

*** RESPONSES TO MEDIA COVERAGE AND QUERIES AND GUIDANCE ***

DATE UNCLEAR
0071
A State Department document includes both a Friends of the Earth news release and State employees’ summary of media queries, pipeline permitting authority under executive order, the state of the review, and various media reports.

Monday, January 3, 2011
0082
This email chain is about Dan Clune’s preparation for a Washington Post interview, including how to respond to questions about Paul Elliott.

Thursday, January 13, 2011 8:28 a.m.
0084
Alice Kottmyer forwards a Jan. 12 Mother Jones article about State’s denial of our FOIA request to five other State staff.

Thursday, January 13, 2011 8:31 a.m.
0084
Jeremy Freeman adds John Schnitker to the email chain about the Mother Jones article.

January 24, 2011
0095
Updated press guidance document

Monday, January 31, 2011 9:46 a.m.
0098
John Schnitker circulates article about our FOIA appeal.
February 2, 2011
00100
Updated press guidance document

Friday, February 18, 2011 3:55 p.m.
00105
Alexander Yuan forwards article saying State has reversed its decision to reject the FOIA request, and says it’s “Interesting how we at State learn about these decisions.”

March 15, 2011
00107
Updated press guidance document

*** ELLIOTT REVEALS MEMBERS OF HIS EMAILS BLAST LIST ***

Wednesday, September 15, 2010
0048
Elliott forwards a letter in support of the pipeline written by Rep. Gene Green. He appears to have mistakenly copied the recipients into the “to” field, rather than “bcc.” Thanks to this we can see Elliott was communicating with a wide variety of lobbyists, oil firm employees, and congressional and White House staff as well as State Department employees.