The Sierra Club recently filed a complaint in U.S. District Court for the Northern District of California against the U.S. Army Corps of Engineers (Corps), alleging that the Corps wrongfully withheld documents pertaining to its evaluation of the environmental impacts of the proposed Keystone XL pipeline. In March 2013, the Sierra Club requested preconstruction notifications (PCNs) submitted by TransCanada to the Corps, pursuant to Freedom of Information Act (FOIA) (5 U.S.C. § 552, et. seq.). The Corps denied the Sierra Club’s request on the basis that the PCNs, which contain detailed route information, were exempt from FOIA disclosure under the “inter-agency documents” exemption to FOIA (FOIA Exemption 5) (5 U.S.C. § 552(b)(5)). The Sierra Club subsequently filed an appeal with the Corps asserting that the exemption does not apply to documents prepared by an outside party and submitted to an agency. The Sierra Club’s current suit alleges violations of FOIA and the Administrative Procedure Act.
This action follows the recent decision by a federal District Court in Oklahoma denying the Sierra Club’s challenge to the Corps’ use and approval of Nationwide Permit 12 for construction of the southern leg of the Keystone pipeline and continues the efforts of the Sierra Club and other environmental organizations to oppose the Keystone project. It further illustrates topics discussed in prior alerts regarding the increasing use of FOIA by citizens’ groups to obtain information about the permitting, construction and operation of pipeline systems. As in this case, many requests seek sensitive information related to national security that may be subject to various FOIA exemptions because pipelines represent an important part of the United States’ critical energy infrastructure. Nonetheless, even if such exemptions are applicable, agencies are bound by law to respond to all FOIA requests and challenges, which can result in a diversion of limited agency resources and provide citizen groups with another avenue to attack agency actions and influence public opinion.