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Congress stonewalled on access to mining data

Marshall Helmberger
Posted 4/25/19

REGIONAL— It appears the Trump administration is continuing to stonewall public records requests filed by congressional committees looking into federal decision-making related to two Minnesota …

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Congress stonewalled on access to mining data


REGIONAL— It appears the Trump administration is continuing to stonewall public records requests filed by congressional committees looking into federal decision-making related to two Minnesota copper-nickel mining projects.

Congressional committees are examining a number of issues related to proposals from both PolyMet Mining and Twin Metals but have struggled to access records that pertain to the administration’s decision-making on those projects.

In an April 9 letter to Environmental Protection Agency Administrator Andrew Wheeler, Congresswoman Betty McCollum, of Minnesota, suggests that Wheeler may have misled the subcommittee she chairs during testimony he gave on April 2, at which time he claimed his agency was still searching for written comments prepared by EPA staff expressing concerns about a proposed state-issued water discharge permit for PolyMet Mining.

Yet the next day, in response to a lawsuit filed in February by Professional Employees for Environmental Responsibility, or PEER, the EPA confirmed in a legal filing that the agency had located the comments in question, but that it could withhold the documents from the public because the comments were merely in draft form, which are not necessarily subject to public access through the federal Freedom of Information Act, or FOIA.

McCollum quickly responded. “I find it highly unlikely that the EPA located this document on the afternoon of April 2, sometime between when you appeared before the subcommittee and when EPA filed its response with the Court,” wrote McCollum.

In the letter, McCollum gave Wheeler until the next day to provide the committee with the comments at issue in the case. As of this past week, however, more than a week past McCollum’s deadline, the EPA had yet to respond.

Professional staff at the EPA had prepared the comments in response to a draft water discharge permit issued by the Minnesota Pollution Control Agency for the PolyMet mine, but it appears that Trump political appointees prevented EPA staff from delivering the comments to the state agency, which would have made them available to the public. That incident has since been referred to the EPA’s Inspector General for possible investigation of improper suppression of agency responsibilities.

While the status of the comments, whether final or draft, is potentially relevant to PEER’s FOIA claim, it would not appear to be relevant to a congressional oversight inquiry, since Congress typically has access to information that goes well beyond what is available to the general public.

Other documents also sought

The latest document impasse comes as McCollum and the chairs of two other congressional committees are still waiting for a response from the Trump Interior Department to a March 1 records request over the department’s decision to reinstate two mineral leases for the proposed Twin Metals copper-nickel mine near Ely. McCollum, along with Raul Grijalva, chair of the House Natural Resources Committee, and Alan Lowenthal, chair of the Subcommittee on Energy and Mineral Resources, are also seeking a lengthy list of records related to the U.S. Forest Service’s decision last year to halt a two-year study of a proposed 20-year mineral withdrawal on a portion of the Superior National Forest. The Forest Service did provide a partial response earlier this month, including copies of scientific studies submitted to the agency by environmental groups— studies which had already been made available to Congress.

It was the Trump Interior Department which acted to reinstate two Twin Metals mineral leases that officials with the Obama administration had cancelled shortly before leaving office. That decision is currently the subject of litigation by a coalition of Minnesota-based businesses and the Wilderness Society, among other plaintiffs.

The members of Congress are also skeptical of the legal conclusions drawn by Interior Department legal counsel Daniel Jorjani, which provided the department’s justification for reinstating mineral leases that had already been cancelled.

“Prior to issuing his convoluted and legally questionable opinion reversing the expiration of Twin Metals’ mining leases near the Boundary Waters, Jorjani made a career helping companies acquire energy resources in foreign countries,” wrote the three chairs in their March 1 letter. “This is strikingly similar to what he is doing now: handing U.S. resources to Antofagasta, the Chilean owner of Twin Metals. Antofagasta met with Jorjani three times in the months leading up to the issuance of his opinion in December 2017.”

The congressional leaders are also hoping to learn more about the rationale behind the Trump administration’s decision to cancel the withdrawal study and what information federal officials might have developed prior to the cancellation.

“We reject your assertion that no new scientific information was found during the nearly 20-month period the Superior National Forest held public meetings, solicited comments, and worked to prepare the withdrawal package,” wrote the members of Congress. “Rather, the abrupt cancellation implies that the mounting evidence against mining that emerged did not support your position, and so, you instead chose to waste taxpayer funds, ignore public comments, and suppress scientific information rather than have this evidence revealed to the public.”

The relationship between Trump administration officials and the primary owner of Antofagasta, Andronico Luksic, has come under question, in part because Luksic is the owner of a Washington D.C. mansion leased by Ivanka Trump and Jared Kushner, President Trump’s daughter and son-in-law.