Terrorism Fears Thwart Journalists' Reporting
Jul 17 - Nieman Reports
WATCHDOG
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 (FRRC) 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 llth 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 FOlA-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 RPA snid 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 Sheriy Devlin over the
years. While thousands of residents and businesses downstream would face
flooding if the clam 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 Greenbrier
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 1 lth 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. Threeyears 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, 20\04 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.
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. [See Bill
Finch's article on page 20.] Register reporters Scan 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 .
Copyright Harvard University Summer 2004