We might ask when will this end, but we think we are at the beginning of the Kleptocracy's project of destruction of environmental law and regulation for the profits of a very few. But, given the ease with which the gang of thieves has taken control, we begin to doubt there is enough environmental consciousness of any useful depth to be found anywhere in the nation. And, as the Project on Government Oversight points out re. the Whitefish contract in Puerto Rico, legal means of plundering the federal government already had been well established in anticipation of the real pros taking over the White House.
At least 12 of 34 of inspectors general positions that require presidential nominations are currently vacant, according to the Project on Government Oversight, with four positions having become vacant since the start of the Trump administration. The longest running vacancy is the IG for the Department of Interior, which has been without a permanent leader since 2009. -- Andrea Noble, Washington Times, Oct. 15, 2017
In other words, historically speaking, finance, insurance and real estate special interests, salted by mining and importers of illegal animals interests, prevailed upon both the Obama administration and the US Senate to not replace former Department of Interior Inspector General Earl Devaney with anyone, a condition which prevails at Interior to this day. Such was the scandalous behavior of Devaney, who exposed the crooks and corporate lackeys in Interior, particularly in the Sacramento office of the US Fish and Wildlife Service, whose corruption during the building boom rivaled the "pervasive ethical failure" of the Mineral Management Service in Lakewood, Colo., also busted by Devaney. 1.
Too many lobbyists got the vapors.
Project On Government Oversight
Whitefish Exposes Contracts Lacking Oversight Teeth
By: Scott H. Amey, J.D.
General Counsel, POGO
Controversy erupted a few weeks ago when it was exposed that Whitefish Energy, a small company in Montana, was awarded a huge contract to restore electricity in hurricane-ravaged Puerto Rico. The controversy stemmed from a number of factors: it was a $300 million sole-source deal, the federal government was not consulted, the contract had a no-audit-or-review-of-labor-rates provision, and the company had connections to a hometown friend, Interior Secretary Ryan Zinke. Many contracting experts and Members of Congress raised questions at the time, and the contract was eventually cancelled. While all of those factors don’t seem to be best practices or in the interest of the citizens of Puerto Rico or the rest of the U.S., as the Project On Government Oversight wrote at the time, the “commercial item” contracts on which the federal government spends billions of dollars each year operate the same way. Allow us to explain.
Since the 1990s and the passage of so-called federal acquisition reform laws, the federal government has had a statutory preference to buy commercial items. Congress restated that preference in the 2018 National Defense Authorization Act bills (H.R. 2810, Sections 854 [Senate version] and 866 [House version]). This preference seems like a no-brainer, but commercial item contracts strip oversight protections and restrict the government’s access to cost or pricing data; as a result, these contracts frequently lead to Uncle Sam being overcharged. Unfortunately, commercial item contracts are increasingly being used. According to the federal system that tracks government contracts, these contracts accounted for 25 percent of federal contract spending in 2016 (more than $118 billion out of the $474 billion spent on goods and services).
To ensure the government keeps using this particular contract type, the large federal contractors and their lobbying shops convinced Congress that the commercial market ensures fair and reasonable pricing. We don’t disagree, but that is NOT how the system works. Those same contractors and lobbyists also duped Congress into basing commercial costs or prices on prices previously paid by the government, not cost or prices actually found in the commercial marketplace, which means taxpayers are paying government prices and will likely be overpaying for years to come.
Those same influence-peddlers also swayed Congress to reject the Department of Defense’s proposed changes to the current definition of “commercial,” which is absurdly over-broad. In fact, a “commercial item” may have no commercial market at all, but can still be called “commercial” as long as the item is merely “offered for sale” to the general public or “of a type” of items sold to the general public. Definitions are already so broad that the Air Force inappropriately tried to buy the C-130J cargo plane as a commercial item. When the contract was corrected, the Air Force concluded that taxpayers saved $167.7 million.
The industry has fiercely lobbied to preserve the current definition of commercial item because it gives contractors the upper hand in negotiations. In a commercial item acquisition, the contractor is not required to provide the government cost or pricing dataeven when the contract is non-competitive (i.e. sole-source or no-bid). The commercial item provision should more accurately have been called the “Sole-Source Contracting Without Knowing Costs or Prices” provision. Congress would be smart to at least require sharing of certified cost or pricing data when the government is acquiring goods or service on a sole-source basis even if the awarded contract contains no flexible pricing provisions. Without such data, there is no assurance that prices are fair and reasonable. But exceptions to providing certified cost or pricing data have become the rule, and contractors often refuse to turn over other data that help the government evaluate prices.
Compounding the problem of buying goods and services that have no commercial market and no sticker price attached, certain commercial item procurements are exempt from Cost Accounting Standards and audits (see here and here). The only check and balance for commercial item purchases is a provision within FAR that allows the Government Accountability Office, Congress’ investigative department, to examine records related to a contract. That provision, however, does not include broad audit rights or provide the same examination rights to the agency that awarded the contract. As a result, it makes it extremely difficult for the government to hold contractors accountable and recover overcharges. The Whitefish Energy contract contained similar provisions, and such accountability restrictions are not new.
Through the years, statutes and policies have severely limited the government’s ability to audit federal contracts: forward pricing audits (pre-award audits to prevent wasteful spending) generally are not performed unless the contract amount is extremely high—and audit eligibility thresholds are constantly being increased, even for risky sole-source contracts.
Audits can be performed for certain contract types (see, for example, here and here), but fixed-priced contracts are generally not subject to audit requirements. Additionally, contract close-out audits on flexibly priced contracts can take years to conduct, and therefore even many cost-reimbursement contracts are closed out without an actual examination of a contractor’s claimed costs.
During a recent hearing, Senator Mike Lee (R-UT) spoke out about corruption in hurricane recovery efforts in Puerto Rico and the U.S. Virgin Islands. He stated that “a lot of people might be tempted to look at this and think that the story somehow starts and ends with Whitefish. Whitefish is of course important, it’s significant….But it doesn’t take a biologist to see that a Whitefish doesn’t swim alone.” Senator Lee’s comments also apply to far too many federal contracts and the accountability shortcomings that mirror those in the Whitefish Energy incident. If the Whitefish contract was concerning, there should be utter panic over the more than $100 billion in federal contracts that are negotiated each year without adequate cost or pricing data and are not subject to audits. The public should be outraged by wasteful contract spending across the board—especially commercial item contracts—and call for reforms that result in good deals for taxpayers.
Los Angeles Times
Trump's environmental rollbacks hit California hard, despite Sacramento's resistance
Efforts to combat climate change in California are being undercut by the easing of restrictions on heavily polluting vehicles.
When 50,000 acre-feet of water went gushing out of the Sacramento River last month, it fast became a test of California’s ability to protect its environmental policies from an increasingly hostile Trumpadministration.
The episode proved humbling.
Heeding the calls of big agriculture interests and area congressional Republicans, the administration pumped federally controlled water to Central Valley farms despite protest from the state that the move imperiled the endangered delta smelt. All California could do was temporarily shut its own pumps, which came at the expense of the state’s mostly urban water customers.
It was perceived by some in California as the kind of big agriculture water grab that the state had not seen in years. And it flouted a longstanding water-management partnership between California and Washington, D.C.
“This has never happened before,” Doug Obegi, an attorney at the Natural Resources Defense Council, said of the pumping. “It has created a huge mess, and a lot of uncertainty.”
The incident was a jolting reminder of California’s limited ability to counteract the environmental retreat in Washington. Even in the state where resistance is the mantra, leaders can’t keep up with the pace of Trump’s environmental rollbacks.
The risk of exposure to toxic substances escaping from industrial facilities has been heightened by the suspension of federal safety rules. Climate change action is getting undercut by easing of restrictions on heavily polluting vehicles.
Federal waterways protections that state officials were relying on to save sensitive vernal pools and boost fisheries are gone. A dangerous pesticide that field workers expected would be banned remains widely sprayed.
Even the authority of officials at the state’s national parks to prohibit plastic water bottles has been stripped.
So many rules and regulations have been rolled back that lawmakers can scarcely keep up. “I have lost track,” said Rep. Jared Huffman (D-San Rafael), who sits on the House Natural Resources Committee. “It is dizzying.”
The Californian who ran the EPA division encompassing the state and others in the Southwest during the Obama administration is particularly concerned about the state’s exposure to toxic chemicals. “No one knows: Is this being covered? Who is covering it and how?” said Jared Blumenfeld, former EPA Region 9 administrator.
While the state has moved aggressively to implement tough restrictions at oil refineries in recent years, there are other categories of facilities where the federal government had been taking the lead. The EPA was imposing new requirements enabling regulators to keep track of what chemicals are stored where, and requiring plant owners to take proactive measures to prevent dangerous releases into the community. But the Trump administration suspended them.
EPA Administrator Scott Pruitt said the move was made in the interest of being “responsive to concerns raised by stakeholders regarding regulations so facility owners and operators know what is expected of them.”
The rules would have boosted safety provisions at plants such as the South San Francisco salami factory, which in 2009 released a plume of 217 pounds of poisonous ammonia, sending 17 people in the nearby community to the hospital, one of them for four days.
In many cases, California’s backstop is local fire departments. Some have experienced hazardous chemical experts on staff. Others don’t.
A tiny volunteer fire department in Humboldt County was in over its head a few years ago when the Chinese owners of a pulp mill abandoned the place, leaving behind thousands of gallons of highly acidic liquids leaching from improperly built tanks susceptible to crumbling in an earthquake.
“It looked like Chernobyl,” Blumenfeld said of the 70-acre facility on the shore of Humboldt Bay when the EPA arrived on site. “Any seismic activity would have led to an unbelievable environmental catastrophe.” Trump’s plan to cut deep into the EPA budget would diminish the agency’s ability to monitor such facilities, and his plan to eliminate the U.S. Chemical Safety Board would deprive California regulators of a crucial partner in bulking up its own protections.
The state leaned heavily on the expertise of the board following the 2012 Chevron refinery explosion that drove 15,000 people in the Bay Area to seek medical treatment for issues such as breathing problems. Nineteen refinery workers narrowly escaped the ignition of a flammable vapor cloud that engulfed the facility. It was board investigators who discovered Chevron’s engineers had written a half-dozen reports pinpointing the corrosion that put it at risk for the type of disaster that unfolded.
“We never would have known about those reports if it were not for the Chemical Safety Board,” said Mike Wilson, director for occupational and environmental health at the Blue Green Alliance, a national coalition of labor and conservation groups.
The state was also looking to Washington to take the lead on protecting farmworkers against the dangers of chlorpyrifos, a widely used pesticide in California’s fields that EPA scientists warned should be banned. Studies find it inhibits childhood brain development.
When the EPA’s deadline to decide on a ban came in March, Pruitt declared the science is unsettled. He put off action until 2022.
State regulators are now in the midst of their own proceedings. They are conducting a separate review, which began over the summer and will extend at least into December — prolonging the time California agriculture communities are exposed to the pesticide, even if the state ultimately imposes its own ban.
The fight over the pesticide is another case highlighting the extent to which state regulators rely on a robust EPA to pursue California’s regulatory agenda. The army of scientists, attorneys, data crunchers and other regulatory experts may operate largely in the background, but they are a backbone of environmental protection in California. They are not easily replaced.
A legislative effort championed by state Senate Leader Kevin de Leon (D-Los Angeles) that would obligate the state to backfill Trump retreats on clean air and clean water has hit roadblocks. Industry groups have so far persuaded a Democrat-dominated Legislature that the lift would be too big and too complicated.
Even without it, Trump is still hitting big barriers imposing his agenda in California. Restrictions on methane releases at oil and gas drilling facilities were preserved by a lawsuit that California and other states filed, and other such legal challenges will likely blunt other air quality, water quality and public lands rollbacks. The state’s aggressive pursuit of climate action will go a long way in helping the United States meet the obligations under the Paris climate accord on global warming that Trump has spurned.
"Where we can, we will do everything in our power to hold this administration accountable,” said state Atty. Gen. Xavier Becerra. “That's exactly what we've been doing, and we've already been successful numerous times. And where we can't, California will continue to lead on its own path as we have done in the past.”
Some things, though, can be out of the state’s reach, even if they are happening in its backyard. A federal plan aimed at protecting endangered sea turtles and whales from drifting sword fishing nets off the West Coast was canceled. More of California’s federal land is being opened to oil and gas drilling, and the administration is signaling it may move to open its waters up, too. The EPA is moving to repeal new restrictions on a type of heavily-polluting truck California was relying on to meet its climate and air quality goals.
After California sued to stop the cancellation of another highway program aimed at tracking greenhouse gas emissions, the administration appeared to back off. Then it moved to cancel the program again.
John McManus is watching it all with dismay from his office in Northern California. The executive director of the Golden Gate Salmon Assn. worries the state has only so much power to stop the federal government from pumping water out of California’s rivers that he says could kill off the fishery.
“The federal bureaucrats making these decisions have a new boss,” McManus said. “We got a glimpse in October of how they might act. If they can do this to the smelt today, they can do it to the salmon tomorrow.
Trump Resurrects Keystone XL and Dakota Access Pipeline
Environmentalists pledge to fight back against Trump orders to expedite the controversial projects.
Environmentalists and social justice advocates scored long-shot victories during the Obama years when they successfully pressured the administration to block construction of the Keystone XL and Dakota Access pipelines. But it turns out those victories may be short-lived.
On Tuesday, President Donald Trump signed an executive order and several presidential memorandums to move along the two projects.
The executive order lays out a process by which the administration will identify “high priority infrastructure projects” and undertake an expedited review. The Keystone memorandum invites TransCanada, the pipeline operator, to resubmit its application for approval and promises an expeditious review by the State Department. Trump told reporters at the White House, “We are going to renegotiate some of the terms” of the Keystone XL project, such as requiring that the steel be made in the United States.
The Dakota Access memorandum encourages the Army Corps of Engineers to revisit its decision from December to halt construction along the project’s original route while an environmental review was carried out.
Much remains unclear about what exactly the new orders will mean for the Dakota Access Pipeline—which sparked controversy in large part because it was slated to cross Lake Oahe near land owned by Standing Rock Sioux Tribe—and Keystone, which would have required a federal permit to cross the US-Canadian border and transport tar sands crude oil to the Gulf Coast.
EarthJustice, the group that has represented the Standing Rock Sioux Tribe, said it does not plan to immediately file a new lawsuit but that if the Army Corps of Engineers does reverse its decision, the group “will likely seek court review.”
“President Trump appears to be ignoring the law, public sentiment and ethical considerations with this executive order aimed at resurrecting the long-rejected Keystone XL pipeline and circumventing the ongoing environmental review process for the highly controversial Dakota Access Pipeline,” said EarthJustice President Trip Van Noppen. “This move is legally questionable, at best.”
Presumably the next step for the 1,179-mile Keystone XL will be for TransCanada to resubmit its application to the new administration. There are two ways Trump could greenlight Keystone from there. He can eliminate the need for a National Interest Determination, which would involve the State Department collecting information from multiple federal agencies about whether the project is in the national interest. (The Obama administration previously declared that the project did not serve the national interest.) Or he and his Secretary of State could simply reverse the Obama ruling and declare that building the pipeline is indeed in the national interest.
Though Trump is clearly hoping for construction to begin quickly, environmentalists are already making plans drag the process out. Jane Kleeb, who runs the Bold Alliance and opposes Keystone, noted that TransCanada doesn’t yet have the land it needs to complete the pipeline. “We are headed to the courts to challenge the right to use eminent domain,” Kleeb said.
200,000 Gallons of Oil Spill From the Keystone Pipeline
The leak comes just four days before TransCanada faces an important vote.
Bottom of Form
The Keystone pipeline was temporarily shut down on Thursday, after leaking about 210,000 gallons of oil into Marshall County, South Dakota*, during an early-morning spill.
TransCanada, the company which operates the pipeline, said it noticed a loss of pressure in Keystone at about 5:45 a.m. According to a company statement, workers had “completely isolated” the section and “activated emergency procedures” within 15 minutes.
Brian Walsh, a state environmental scientist, told the local station KSFY that TransCanada informed the South Dakota Department of Environment and Natural Resources about the spill by 10:30 a.m.
TransCanada estimates that the pipeline leaked about 5,000 barrels of oil at the site, Walsh said. A barrel holds 42 U.S. gallons of crude oil.
The Keystone pipeline system is nearly 3,000 miles long and links oil fields in Alberta, Canada, to the large crude-trading hubs in Patoka, Illinois, and Cushing, Oklahoma. It was completed in 2011. The entirety of its northern span—which travels through North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Missouri, and Illinois—would stay closed until the leak was fixed, the company said.
TransCanada said it was still operating the pipeline’s southern span, which connects Oklahoma to export terminals along the Gulf Coast.
The pipeline’s better-known sister project—the Keystone XL pipeline—was proposed in 2008 as a shortcut and enlargement of the Keystone pipeline.
In 2011, climate activists seized upon the Keystone XL pipeline, warning that its completion would allow the exploitation of much of Alberta’s tar sands and lock in too much future carbon pollution. James Hansen, then the director of the NASA Goddard Institute for Space Studies, warned in The New York Times that exporting oil from the Albertan tar sands would mean “game over for the climate.”
In 2015, President Barack Obama blocked the pipeline as part of his administration’s preparation for the UN climate-change talks in Paris. But less than a week after his inauguration, President Donald Trump ordered that decision reversed.
TransCanada faces one final approval—from the Nebraska Public Service Commission—before it can finish building Keystone XL. In a fluke of timing, that all-important meeting will take place this Monday, November 20.
TransCanada has already completed two spans of new pipeline around the trading hub in Oklahoma. Those projects make up about 40 percent of the Keystone XL project, and oil is already flowing through them. But even if the company wins approval next week, some analysts argue that the falling price of oil has made Keystone XL uneconomical.
The long-term environmental costs of an oil spill can vary greatly by location and the length of time the spill goes unnoticed. In 2006, BP spilled 267,000 gallons of crude oil in Prudhoe Bay, on Alaska’s northern coast. Though that is about the same amount that leaked from Keystone on Thursday, it flowed from the BP pipeline over at least five days. BP ultimately paid more than $100 million to the federal government, the state of Alaska, and Alaskans for damages related to the incident.
IG pick stalled in Senate as GOP questions her independence
It looks like the Department of the Interior will have to wait to have a permanent watchdog in place.
Mary Kendall, a deputy Interior inspector general who has held the top position on an acting basis for more than six years, was nominated to take on the job permanently this past June. She and other Interior and Department of Energy nominees appeared before the Senate Energy and Natural Resources Committee in October.
But that seems to be as far as Kendall's nomination will go in the Senate, at least for now.
Sen. Lisa Murkowski (R-Alaska), the committee's chairwoman, doesn't support the acting IG's nomination. The senator still has "unresolved questions" about Kendall's independence from the Obama administration, according to a committee aide.
"Chairman Murkowski continued to have unresolved questions about Ms. Kendall's independence as Interior IG and, given the Interior Department's oversized role in the daily lives of Alaskans, was not comfortable supporting her nomination to what is tantamount to a lifetime appointment," said Robert Dillon, communications director for the Senate Energy and Natural Resources Committee.
Dillon also said the committee has no plans at this time to consider additional nominees. Kendall was not included in a package of nominees that the Energy committee approved last month who appeared with the IG at the panel's October hearing (Greenwire, Nov. 16).
Asked for a response to Dillon's comments, a spokeswoman for the Interior IG office cited Kendall's testimony before the panel in October.
"To paraphrase Ms. Kendall's testimony before the committee, 'As a career civil servant for over 29 years, I sincerely believe that public service is a public trust, requiring me, and my fellow public servants, to place loyalty to the Constitution, the law and ethical principles above private gain," said Nancy DiPaolo, the IG office spokeswoman.
She noted that Kendall added "whether confirmed or not, I will continue to do the very best job I can to lead this respected organization in its ongoing efforts to prevent and detect fraud, waste, abuse and mismanagement in the Department of the Interior."
Republican lawmakers have alleged that Kendall has been too cozy with senior political figures at the department during her tenure as Interior's watchdog.
Many have battled with her over the years, especially with her handling of an investigation into the administration's Gulf of Mexico drilling moratorium after the Deepwater Horizon disaster. That sparked a 2013 House Natural Resources Committee GOP staff report that found she had taken an "accommodating and cooperative approach" with the administration (E&ENews PM, Feb. 21, 2013).
GOP lawmakers have alleged that Kendall had a conflict of interest by participating in an advisory board that supported the drilling ban, a charge that the IG has denied (Greenwire, May 23, 2012). A probe of Kendall by her fellow inspectors general would later clear her of any wrongdoing in the case (Greenwire, June 12).
Republicans on Capitol Hill have also fought with Kendall over documents regarding Interior's proposed stream protection rule, which she has been reluctant to divulge (Greenwire, Sept. 11, 2014).
Sen. Bill Cassidy (R-La.) took issue with Kendall's approach in both cases. The senator, a member of the Senate energy panel, said inspectors general have to work with both their agency and Capitol Hill.
"I have concerns regarding Ms. Kendall," Cassidy said. "Her partiality to the department makes her a bad partner for Congress."
Another committee member said he was opposed to Kendall's nomination and said President Obama should have picked someone else for the job.
"I'm opposed to the nomination. If the president wants somebody in there, he would probably have nominated somebody different," said Sen. John Barrasso (R-Wyo.).
Both Cassidy and Barrasso, along with Murkowski as well as Sens. Steve Daines (R-Mont.) and Mike Lee (R-Utah), all asked Kendall questions for the record stemming from the October hearing. The IG's 43-page response shows the senators' focus on the 2013 House Republican report, which helped raise questions about Kendall's independence.
Those questions have led to lackluster support in the Senate for the IG, resulting in Kendall's stalled nomination.
Rep. Rob Bishop (R-Utah), chairman of the House Natural Resources Committee, said Kendall's status as an acting IG made her job tougher. Nevertheless, Bishop has not been impressed with her tenure and said that there were "better options" than nominating Kendall for the job permanently.
"There are better options. There are better choices," Bishop said.
Referring to Kendall holding the job on an acting basis, Bishop said, "I realize that it makes it difficult to make really valid decisions, those that have some kind of force, but some of the things we have been getting are weird."
In the meantime, Interior is again left without a permanent watchdog. Rep. Raúl Grijalva (D-Ariz.), ranking member on the House Natural Resources Committee, said the department needs someone confirmed in the inspector general job.
"I think it's needed," Grijalva said. "Playing games with a position that in theory reports to Congress ... is a mistake. By politicizing it, I think you weaken it."
(1) Earl Devaney, Wikipedia: https://en.wikipedia.org/wiki/Earl_Devaney