Obama Admin's Delayed Transparency on Keystone XL Lobbying Results in Lawsuit

Friends of the Earth-U.S. (FOE) has filed a lawsuit against the U.S. State Department for failing to expedite its April 2013 Freedom of Information Act (FOIA) request seeking communications between TransCanada Keystone XL tar sands export pipeline's influence peddlers and the agency tasked to make the final decision on KXL's northern half.  

FOE's request seeks records of communications between State — which FOE has yet to hear back from since the April expedition request denial — and a cadre of powerful lobbyists.

The most well-connected of the group is Anita Dunn, a principal at SDKnickberbocker, a senior advisor to Obama's 2012 reelection campaign and former communications director for the Democratic Senatorial Campaign Committee under then-Senator Kerry. Dunn — who had over 100 private meetings with the Obama Admininistration between 2009 and 2012 according to a New York Times investigation — now does public relations on behalf of TransCanada at SDKnickberbocker.

Dunn's husband Robert "Bob" Bauer — President Obama's personal attorney, former White House Counsel for Obama, Counsel for the Democratic National Committee and election law attorney for Obama's 2012 reelection campaign — works at a law firm that does legal work on behalf of another TransCanada-owned pipeline, Alaska's South Central LNG.

DeSmogBlog submitted a FOIA request to the White House for the financial disclosure forms of Dunn and Bauer on July 5.

FOE's FOIA also requested communication records between State and other lobbyists with career ties to President Obama, John Kerry and former Secretary of State Hillary Clinton. Some highlights:

1.) Paul Elliott, chief lobbyist for TransCanada, a top Hillary Clinton adviser in her 2008 presidential campaign

2.) David Castagnetti of Mehlman, Vogel & Castagnetti, who was director of Congressional relations for Kerry’s 2004 presidential campaign and Brandon Pollak of Bryan Cave LLP, who also worked on Kerry’s 2004 presidential campaign

3.) Gordon Giffin of Long & Albridge, a top fundraiser in Hillary Clinton’s 2008 presidential campaign and Jim Blanchard of DLA Piper, also a top Clinton 2008 fundraiser

Making the Legal Case

FOE argues that because the decision for Keystone XL's northern half could happen within weeks or months, an expedited request should be granted. Normally, federal-level FOIA requests can take upwards of 2-3 years, by which time President Obama will have decided the fate of Keystone XL.  

"The requested information is critical because a number of the lobbyists presently advocating for the project formerly worked for Secretary of State John Kerry, or for former Secretary Hillary Rodham Clinton," says the lawsuit complaint, filed yesterday in the U.S. District Court for the District of Columbia by Meyer Glitzenstein & Crystal on behalf of Friends of the Earth. "In light of these relationships, the requested records would allow FoE to inform the public about the nature of the State Department’s decision-making, and the role any of these lobbyists may be playing in that process." 

In nullifying FOE's April request for expedited FOIA filing, the State Dept. argued the request doesn't "meet any of the established criteria" for expedition, as seen in the key excerpt of its letter to FOE below:

What though, fits the "imminent danger" concept better than a pipeline that will hasten climate disruption and cause ecological harm? With regards to "physical safety," climate change is impacting individuals around the world right now and will only worsen as tar sands are extracted from Alberta and shipped to the export market at increasing rates.  

And if anything is a plausible "substantial humanitarian" issue, climate change fits the bill. 

FOE's Hurdle: Obama's Not-So-Hot FOIA Record

To say FOE has a major legal hurdle to clear on this lawsuit is an understatement. Though candidate Obama campaigned in 2008 to "usher in a new era of open government," his talk has proven cheap.

"When it comes to implementation of Obama’s wonderful transparency policy goals, especially FOIA policy in particular, there has been far more ‘talk the talk’ rather than ‘walk the walk,'" Daniel Metcalfe — Director of the Department of Justice’s office monitoring the government’s compliance with FOIA requests from 1981-2007 — told Bloomberg in a Sept. 2012 article investigating Obama's FOIA track-record. 

Bloomberg further concluded the Obama Administration had "flunked the disclosure test" in his first term.

"I and many other journalists have observed that this administration, despite its public rhetoric, has repeatedly and continually been very difficult to deal with. I rate them worse than the Bush administration," David Kay Johnston, the head of Investigative Reporters and Editors (IRE) said on a recent episode of Democracy Now! "They're behaving much more like a corporation than like the people’s government."

Tough words from Johnston, and a tough road ahead for the FOIA legal battle royale for FOE in the U.S. District Court for the District of Columbia.

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