Saturday, January 25, 2014

FOIA Documents Shed Light on Closed-Door Meetings on Eagle Deaths

Documents received by the American Bird Conservancy in response to a Freedom of Information Act (FOIA) request shed light on numerous closed-door meetings from October 2012 through at least March 2013 that the Department of Interior held with a coalition of wind industry and conservation group representatives - known as the "Group of 16" - to continue the "dialogue" on two policy efforts that impact bald and golden eagles: 1) Interior's plans to completely revise the eagle take permit rule, and 2) a revision to the eagle take rule specifically allowing companies to kill bald and golden eagles for up to 30 years.  Interior finalized the 30-year eagle take permits in December 2013, but has not yet finalized the more comprehensive revisions to the eagle take rule.  The American Bird Conservancy has expressed concern that the invitation-only meetings may have violated rules and laws designed to maintain transparency and public participation in how the Federal government makes decisions.

The closed-door meetings were held in response to a request from the "Group of 16", and occurred after the public comment period for both rule revision processes had closed in July 2012.   If Interior wanted to seek additional input, it could have pursued a number of mechanisms that would have been consistent with the Federal Advisory Committee Act, which governs "any committee, board, commission, council, conference, panel, task force, or other similar group" that provides advice or recommendations.  For example, Interior could have initiated a "negotiated rulemaking" process that would have allowed it to seek input from the "Group of 16" in a way that would have been more transparent to the public.  Instead, Interior held closed-door, collaborative meetings with the wind industry and select conservation groups to discuss potential modifications of the eagle take rule; stakeholders such as other conservation groups, tribes, and other industries were excluded from the discussions by Interior leadership despite concerns raised by others within and outside Interior.

According to the FOIA documents, Interior provided the Group of 16 with a detailed look at the Obama administration's plans to review and revise the broader eagle take rule - a level of detail that the public and other stakeholders have not been provided.  Interior is aiming to finalize the eagle take rule revision in 2015, which is likely to be a significant overhaul of the process that could favor expanded wind development on wildlands.

Wind Industry Exploits Direct Access and Influence

The FOIA documents also underscore close ties between the American Wind Energy Association (AWEA) and top officials at Interior and the Fish and Wildlife Service, with conservation groups apparently playing second fiddle.  Interior's final decision on the 30-year permits in December 2013 make it abundantly clear that there were winners and losers among the Group of 16 - the American Wind Energy Association (AWEA) praised the 30-year eagle take permits, and environmental groups blasted the permit extension as a "blank check" for the wind industry to kill bald and golden eagles without adequate scientific study of the impacts.  The split opinions among the Group of 16 highlight the environmental community's attempts to compromise with industry failed, and call into question to what extent AWEA and Interior will accept the conservation community's concerns as the Obama administration revises the overall eagle take rule.

The FOIA documents show that the wind industry was explicitly asking Interior to reduce regulatory risk for  proposed or existing wind projects deemed to have moderate or high impacts on eagles, even though FWS lacked scientifically sound conservation practices to adequately mitigate the risk to eagles.  The wind industry's request was discussed in an October 2012 meeting hosted by the American Wind Wildlife Institute - an organization largely funded by the wind industry - and further detailed in later correspondence to Interior.  Steve Black, counselor to the Secretary of Interior, received an e-mail on January 30, 2013 from John Anderson at the American Wind Energy Association with an attached memo proposing changes to the eagle policies for "sites where the risk for eagle take is high, and that such take will occur on an on-going basis, and for those facilities that are currently taking eagles, the parties will work with the Service to develop a short-term national, programmatic research program."  AWEA was asking Interior to find a way to permit risky wind projects, and explain away eagle deaths as part of research into the impacts of wind projects on wildlife.

In an earlier e-mail to Interior leadership contained in the FOIA documents, AWEA's Anderson expresses knowledge that Interior planned to submit the revised Eagle Conservation Plan Guidance - a document that governs how Fish and Wildlife Service implements the broader eagle take rule - to the Office of Management and Budget for executive review, and says "let me know if you need me to make any calls" - an apparent reference to his ability influence the outcome.   Not surprisingly, the 30-year eagle take permit revision, and the updated Eagle Conservation Plan Guidance  published by Interior allows the wind industry to kill bald and golden eagles under the auspices of "experimental advanced conservation practices" (ACPs). According to the final rule, " [t]his approach will provide the needed scientific information for the future establishment of formal ACPs, while enabling wind energy facilities to move forward in the interim."

In the FOIA documents, AWEA also specifically tells Interior not to ask specific wind companies to apply for eagle take permits, suggesting doing so might make it more difficult for projects to obtain financing.   It is not clear whether or not Interior currently requests that specific wind projects apply for take permits, or simply encourages the practice more broadly.  The FOIA documents also reveal that some of the Group of 16 were considering asking Interior to allow wind projects to move forward in the "interim" - as the eagle take permit rule is being revised - with eagle conservation plans "in lieu of permits."  Doing so would seem to be a violation of the Bald and Golden Eagle Protection Act.  If Interior is not demanding wind projects apply for permits, it would seem that Interior is essentially complying with the industry's request.

Interior Fails to Provide Transparency

Interior continues to conceal the extent of the meetings and even the substance discussed - much of the documents released to the American Bird Conservancy remain redacted and blacked out, including documents clearly pertaining to the meetings held with the Group of 16.  It is very likely that the meetings continued beyond March, 2013 because the documents released to the American Bird Conservancy only cover activities up until the initial FOIA request.

Interior's behavior is unacceptable and inconsistent with the Obama administration's pledge to improve transparency across government.  Taking a select few stakeholders into closed-door meetings to discuss the way forward on revising not only the 30-year take permits, but the broader eagle take rule is especially shocking considering how many strong feelings Americans have about allowing any industry to kill eagles.  The meetings were not announced to the public, and specifically excluded tribes, industries, smaller conservation groups, and members of the general public that also care about how well Interior stewards our natural treasures.

Timeline of key events:
  • April 13, 2012: Fish and Wildlife Service publishes the draft proposed rule allowing the wind industry to kill eagles over 30-year periods,  and seeks public comment.  The rule is intended to satisfy the wind industry which argued that financiers were less likely to fund projects built in eagle habitat with the standard 5-year permits out of fear that the projects could be shut down before banks and companies received a return on their investment.
  • July 12, 2012:  The public comment period for the overall eagle take permit revision, as well as the draft rule extending eagle take permits to 30-years closes. Members of the public, industry representatives, tribes, and conservation groups submit nearly 160 comments regarding the 30-year permit extension, many opposing the rule on grounds that it could harm eagle populations over the long-term, and highlighting the lack of scientific research on the status and trends in eagle populations.   Many more submitted comments opposing the 30-year take permits, but accidentally submit them under a separate docket for the overall eagle take rule revision.
  • August 22, 2012:  A select group of wind industry and conservation groups (the "Group of 16") submit a letter to then Secretary of Interior Ken Salazar asking Interior and the Fish and Wildlife Service to "supplement the current notice-and-comment proceedings through continued and collaborative interaction with key stakeholders," through formal or informal processes, the latter having less public participation or transparency.
  • October 2012:  Steve Black, counselor to the Secretary of Interior, begins to respond to the industry and conservation group letter by reaching out to other select stakeholders and determining how to meet the group's request for collaboration on the rule.  He ignores American Bird Conservancy’s request to be included and the requests of tribes who have asked for government-to-government consultation.
  • October 5, 2012:  Steve Black sends an e-mail to California Energy Commissioner commissioner Karen Douglas and senior advisor to Governor Brown Michael Pickering highlighting plans for continued engagement and asking for an offline discussion on the way forward.  This is interesting because California is home to wind facilities that have had the highest publicly acknowledged kill rates of golden eagles.
  • October 23, 2012:  The Director of the Fish and Wildlife Service sends a letter in response to the August 22 letter, inviting stakeholders to a "one-to-two day meeting" to "work with Service staff to develop a collaborative process to ensure the long-term sustainability of eagle populations and responsible renewable energy development."
  • October 24, 2012:  Fish and Wildlife Service leadership meets with wind industry and conservation group stakeholders to discuss how to proceed on the eagle permit process.  Fish and Wildlife Service's internal minutes  from the meeting indicate that Interior intends to finalize probably the 30-year eagle rule revision in December 2012, and that future meetings with stakeholders "may not be collaborative," despite the Director's October 23 letter specifically inviting stakeholders to a collaborative process.  The 30-year eagle rule revision is ultimately not published until December 2013 - a year later. 
  • November 13, 2013: Fish and Wildlife Service officials are told that the Group of 16 is considering asking Interior to allow wind projects to move forward with "Eagle Conservation Plans in lieu of permits,"  essentially a violation of the Bald and Golden Eagle Protection Act.
  • November 15, 2012:  Lower level Fish and Wildlife Service officials discuss who to invite to the next "Group of 16" meeting, noting correctly that the process should be transparent and accessible to all stakeholders, but later acknowledge guidance from Fish and Wildlife Service leadership to limit the meeting to the select group of stakeholders.
  • November 29, 2012:  David Cottingham, Senior Advisor to the Director of the Fish and Wildlife Service, attends a collaborative meeting hosted by the wind industry with many of the same stakeholders.  In minutes drafted by the wind industry-funded American Wind Wildlife Institute, Cottingham reportedly stated that the stakeholders need to find a way to identify ways to "enable wind energy projects to get permitted" even as Interior continues to revise the overall eagle take rule, a theme that the American Wind Energy Association (AWEA) later underscores as a priority in a letter to Interior.  At the November 29 meeting,  the wind industry expressed interest in allowing wind projects to kill eagles under "research permits."
  • November 30, 2012: Cottingham reports to the Director of the Fish and Wildlife Service that he checked with AWEA and confirmed the industry association is "willing to go along with" a delay in finalizing the 30-year take permit in the "spirit of collaboration with the environmental community."  He reiterated to the Director that the wind industry wants the 30-year permits with "intermediate check-ins," or just periodic oversight of the industry's impacts on wildlife.
  • January 2013: According to e-mails back and forth within Department of Interior and with stakeholders, Interior works to nail down another meeting with the select wind industry and conservation group stakeholders. 
  • January 30, 2013:  Over 6 months after the public comment period ended, John Anderson of the AWEA sends an e-mail directly to Steve Black of the Department of Interior, with a memo outlining the changes AWEA would like to make to the eagle take permitting process. In an attached document, AWEA proposes that as the overall eagle take rule is being revised the Fish and Wildlife Service should "commit to not requesting that companies pursue eagle take permits" as long as wind projects develop eagle conservation plans. 
  • February 4, 2013: Deputy Secretary of the Interior David Hayes sends an e-mail to conservation groups and the wind industry inviting them to a February 11 meeting to "discuss how we can work productively together" on the revision of the eagle take rule.
  •  February 6, 2013: The Director of the Fish and Wildlife Service sends an e-mail with an attachment outlining the "process of consultation" and workshop process he would like to have with the "Group of 16," referring to the select group of industry and conservation group stakeholders.  The attachment and parts of the Director's email are redacted in the FOIA documents, covering up the scope and intent of the meetings Fish and Wildlife hosted.
  • February 10, 2013:  Cottingham sends an email to the Director of the Fish and Wildlife Service with a summary of the Group of 16's proposal for revising the eagle take permit process.  Much of the summary is redacted in the FOIA response, but appears to outline a process for how to handle existing wind projects causing harm to eagles, and proposed projects.
  • February 11, 2013:  Interior hosts the meeting to discuss the eagle rule with a limited group of stakeholders identified by Interior, nearly seven months after the public comment period closed.  The meeting is not announced to the public, and minutes from the meeting are not made public.   Transparency takes yet another hit when Interior goes so far as to redact some statements made by Interior to these stakeholders from the documents sent to the American Bird Conservancy (ABC) in response to the FOIA request.
  • February/March 2013:  After the February 11 meeting, the Group of 16 requests a follow-up meeting.  Separately, Fish and Wildlife Service officials who coordinate policy on eagles and raptors were working "feverishly" to respond to unspecified guidance from Interior leadership on how to respond to the stakeholders' concerns.
  • March 27, 2013: Interior holds a second meeting with the same stakeholders on the eagle rule, over 8 months after the comment period closed.
  • April 2013: The Eagle Conservation Plan Guidance - a document of interest to AWEA representative John Anderson according to the FOIA documents - is finalized and published by the Fish and Wildlife Service.
  • December 2013:  Fish and Wildlife Service publishes the final rule extending eagle take permits from five to 30 years, including a provision allowing for "experimental advanced conservation practices."


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