A new federal rule aimed at keeping terrorists from learning about vulnerabilities in the nation’s energy infrastructure might be resulting in the neglected safety of dams and pipelines and in less monitoring of an electric grid whose operators are unaccountable for its reliability—all of which will spare powerful, politically appointed regulators embarrassment. The reason: This rule—prompted by worries about homeland security—blocks journalists from reporting certain information about pipelines, transmission lines, hydroelectric dams, and other energy facilities. Whether this protection of information is resulting in the public being safer remains an open question and a difficult one to assess with reporters unable to obtain critical information.

FERC’s New Rule

The Federal Energy Regulatory Commission (FERC) has jurisdiction over dams and hydropower, oil and gas pipelines, electric power plants and the grid connecting them, and many other aspects of the nation’s energy infrastructure. For years it had issued licenses and enforced regulations in formal, quasi-judicial proceedings. As part of these proceedings, documents were filed in a public docket, and everything was supposed to be on the record.

Within a month after the September 11th attacks, FERC started to remove previously public information from its Web site. By January 2002, it began regulatory proceedings to excise entirely from the public record a whole class of information it called “Critical Energy Infrastructure Information” (CEII). On February 20, 2003, the CEII rule was finalized, and it defined CEII as information about “proposed or existing” critical energy infrastructure that “could be useful to a person in planning an attack on critical infrastructure.” In response to protests from open-government groups, FERC amended its definition to include only information already “exempt from mandatory disclosure under the Freedom of Information Act (FOIA)” and that “does not simply give the location of the critical infrastructure.”

But FERC’s limitation to FOIA-exempt information might provide little consolation to journalists. By using an expansive FOIA interpretation, FERC exempted a great deal of the safety and environmental information it had previously disclosed having to do with internal personnel matters, trade secrets, and “certain law enforcement information, including information the disclosure of which might jeopardize a person’s life or safety.” So far, these interpretations are untested in court.

The final rule also allowed companies and utilities to claim protection for disclosure of information when they initially submit it to FERC. Such information would then remain undisclosed unless FERC’s CEII coordinator decides otherwise. The rule applies not merely to information about existing facilities, but to proposed facilities that might be built if FERC licenses them.

FERC’s system departs from FOIA in several important ways. First, it allows companies to shift the presumption to nondisclosure. Second, it requires that anyone requesting information prove their identity and “need to know.” Third, people receiving CEII must sign nondisclosure agreements—a provision that reporters would balk at.

Milltown Dam: In December 2002 FERC removed from its Web site information on foot-wide gaps near the foundation of the aging Milltown Dam, five miles upstream of Missoula, Montana. The headline on The Associated Press story on December 28th said it all: “FERC Hides Dam Safety Flaws, Citing ‘National Security.’”

Terrorists have shown little interest in Milltown Dam. But the Milltown Reservoir holds 6.6 million cubic yards of sediment laced with lead, arsenic, cadmium and other heavy metals washed from the Anaconda Smelter Superfund hazardous waste site (the “nation’s largest”) now owned by ARCO, who will have to pay for the cleanup. Arguably, hiding the flaws does more to help ARCO than it does to thwart terrorists. ARCO was hoping the Environmental Protection Agency (EPA) would choose a less costly cleanup plan that would leave the dam in place and use the reservoir as a final containment structure. Partly as a result of the newly discovered (and unsuccessfully concealed) safety issues, Montana Governor Judy Martz in January 2003 said she favored a more expensive alternative cleanup plan—removing the dam and the sediments. The next day, the EPA said it would choose dam removal.

This story is a Byzantine web of political, economic and legal shenanigans, and it has been doggedly covered by Missoulian reporter Sherry Devlin over the years. While thousands of residents and businesses downstream would face flooding if the dam failed, another worry is environmental. If a massive ice jam (like the one that almost smashed into the dam in 1996) breached the dam, the flush of sediments would contaminate drinking water and endanger human health and affect recovery efforts for the endangered bull trout.

In January 2003, FERC apologized to Missoula County commissioners from whom it withheld information about the dam’s structural flaws. But the information is still listed on FERC’s Web site as “nonpublic” (meaning an FOIA request is needed to get it), as is FERC’s apology to the commissioners.

Greenbrier Natural Gas Pipeline: Few people’s patriotism would be less subject to challenge than that of former U.S. Army Ranger Joseph McCormick, living in a rural Virginia community in the Blue Ridge Mountains. Yet when he asked FERC for information about a 30-inch natural gas pipeline that was going through his Floyd County community in the Shenandoah foothills, he couldn’t get it.

This story emerged as part of a joint investigation, published in December 2003 by U.S. News & World Report and broadcast on PBS’s “NOW with Bill Moyers.” FERC denied information on the routing of the proposed Green-brier Pipeline to McCormick and Gini Cooper (whose land it would run across) even before it had officially adopted its CEII rule—on the grounds that this information might help terrorists. Neither local residents nor reporters were allowed to get from FERC a map of the proposed pipeline’s route or a list of landowners whose land it would cross.

McCormick and Cooper were, in fact, possibly more concerned about the security of their community than was FERC. McCormick was concerned that the pipeline would run close to a local school and right across the scenic Blue Ridge Parkway. “But what we were finding was this was having the effect of defeating our opportunity to organize people, to get people involved,” McCormick told “Now’s” David Brancaccio. “And when we couldn’t get an exact route, the momentum, the groups actually that were forming, essentially disbanded.”

Without effective public opposition, the FERC approved the pipeline.

Liquefied Natural Gas Terminals: In the past year energy companies have proposed building up to 30 liquefied natural gas (LNG) terminals along the Atlantic, Pacific and Gulf coasts of the United States. At these offshore and onshore terminals, massive tankers would unload cargoes of super-cooled gas, which would be fed via pipeline to a nation hungry for the fuel. FERC appears to be in a rush to get them sited and built. High gas prices are only one reason for the hurry. There might never be a more permissive regulatory environment for building such energy facilities than there is this year with Congress, the White House, and FERC all in Republican hands.

The rush to build LNG terminals might prove hard to reconcile with the administration’s concerns over terrorism. Looked at through the eyes of terrorists, an LNG tanker in a populated area could be a weapon of mass destruction. And such scenarios might not be far-fetched. Former White House counterterrorism czar Richard Clarke wrote in his book, “Against All Enemies: Inside America’s War on Terror,” that the United States knew “that al-Qaeda operatives had been infiltrating Boston by coming in on liquid natural gas tankers from Algeria” and that shutting down Boston Harbor was one of his top priorities after September 11th because “we had also learned that had one of the giant tankers blown up in the harbor, it would have wiped out downtown Boston.”

LNG terminals are considered by some experts among the most dangerous industrial facilities known. A January 2004 explosion at an LNG complex in Skikda, Algeria, killed 30 people and injured over 70 and raised serious doubts over the industry’s assurances that LNG facilities are safe. While many of the proposed terminals are far offshore, some are onshore close to densely populated areas. And FERC’s CEII rule is keeping safety and environmental information locked up out of public view.

Until recently, LNG terminals were rare in the United States—partly because of safety and partly because of economics. Three years ago, only three were operating in the United States—at Everett, Massachusetts; Elba Island, Georgia, and Lake Charles, Louisiana. One facility at Cove Point, Maryland has been shut down since 1980.

Fierce local opposition has caused companies to delay or cancel LNG terminal proposals for Mobile, Alabama; Vallejo, California, and Harpswell, Maine. Mindful of this, FERC on March 24, 2004 issued an unusual ruling that it alone has authority to regulate the siting and licensing of LNG import terminals. The decree came in the case of a proposed Long Beach, California terminal that California’s Public Utilities Commission says it also must approve before it is built. FERC insists it’s not trying to cut local authorities out of the decision, but local agencies are expected to challenge FERC in court.

“Government Studies Vanish From Reporters’ View”
Bill Finch
In the summer of 2003, ExxonMobil Corp. proposed building an onshore terminal at a former Navy homeport in Mobile Bay, off Alabama. Since that announcement, the Mobile Register has given the issue prominent news coverage. Register reporters Sean Reilly and Ben Raines and their colleagues have found that expert scientific assessments of how much danger the facility would present to the community differed widely. The newspaper has also discovered that the CEII rule is likely to prevent the community from getting the full story.

In an era of terrorism, press and public access to information about energy infrastructure hazards might well be needed more, not less. The FERC’s CEII rule has the potential for hiding information the public needs to ensure its own safety. For example, if a company proposes routing a gas pipeline next to a child-care center, people need to know that, if only to be able to pressure FERC to reroute the pipeline. Building energy facilities that are inherently safe—from their inception—is a better solution than keeping hazards hidden. But the public cannot make such decisions wisely—or hold officials accountable for making them—without access to information.

Joseph A. Davis has written about natural resources, energy and the environment for 28 years. His syndicated articles have appeared in more than 110 U.S. newspapers. He now edits the WatchDog, a newsletter about First Amendment issues for the Society of Environmental Journalists. To receive the WatchDog, e-mail a request to sej@sej.org.

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