Fight over wind power, conservation laws tracks familiar political narrative

SNL
By Michael Copley
September 10, 2014

To Democrats, it is another witch hunt concocted for political gain. To Republicans, it is yet another example of the administration of President Barack Obama stonewalling Congress.

Led by U.S. Rep. Doc Hastings, R-Wash., the House Natural Resources Committee has been conducting a sweeping investigation of the U.S. Department of the Interior and its Fish and Wildlife Service for information about the government's application of conservation laws and its interaction with different industries. Republican investigators have shown particular interest in the government's dealings with the wind power industry on a pair of laws intended to protect birds and eagles.

But the inquiry, which reportedly has produced more than 60,000 pages of documents at an estimated cost of more than $2 million, has only yielded frustration. Republicans say they still are not getting what they want.

"Some claim that our requests are costly and burdensome. However, it's now evident that the administration is wasting time and taxpayer dollars by going out of its way to redact documents that have already been released," Hastings said in prepared comments at a committee hearing Sept. 10. "Most of their time and resources are spent figuring out which documents to purposely withhold."

At issue Sept. 10 was a batch of documents the Obama administration released in response to the congressional inquiry. Republicans were incensed to find that many of the documents they received were more heavily redacted than versions released to the news media and special interest groups under the Freedom of Information Act.

"How do we build confidence when we get that sort of activity? That's the dilemma that we're facing," Hastings said during the hearing.

"Perhaps the committee should make FOIA requests," quipped Rep. Peter DeFazio, D-Ore., the committee's ranking member and a critic of the investigation.

Fish and Wildlife Service Director Dan Ashe and Interior Department Solicitor Hilary Tompkins said there are different processes, and people who perform them, for congressional inquiries and FOIA requests. In some cases, they said, the wording of a committee request could have prompted a redaction where the wording of a FOIA request did not.

Ashe has long complained about the way the committee is pursuing information. "I would say that the problem, the issue we have right now, is the committee's making a very broad request that's draining my time and capacity to be responsive," he said.

In a Sept. 9 letter to Hastings, Interior Secretary Sally Jewell said she hopes her department and the committee can "improve the quality of communication … to ensure that the department responds to the committee's legitimate information needs in a way that does not significantly impact the department's mission, work or taxpayer resources."

The committee is demanding detailed information about enforcement of the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. In December 2013, the government issued a new rule allowing energy project developers to apply for permits to kill and disturb eagles for up to 30 years. The move was criticized in some corners as a special favor to the wind industry. While proponents note the permit is broadly available across industries, regulators acknowledged that the rule was crafted in response to wind developers who said five-year permits were not practicable when project life cycles often span more than two decades.

Ashe denied offering the wind industry special treatment. The committee's investigation "has produced not a shred of evidence to support the accusation that we are applying these laws preferentially," he said.

There are also legal challenges with which the government must contend. A conservation group, the American Bird Conservancy, is suing the government for allegedly failing to conduct a proper environmental review before issuing the rule. The group claims the rule "lacks a firm foundation in scientific justification." Members of the Natural Resources Committee raised similar concerns before the suit was filed.

Ashe has defended the rule as a "technical change" and insists his agency complied with the National Environmental Policy Act. In a response filed Sept. 8 in U.S. District Court for the Northern District of California, the government argued that some or all of the plaintiffs in the American Bird Conservancy lawsuit lack standing to pursue their claims, and that some or all of the claims are "not ripe" and do not, therefore, fall under the court's jurisdiction.

The Republicans' digging is exasperating committee Democrats.

Saying the government has 17 open investigations into suspected wildlife violations by the wind industry, which comprises about 48,000 turbines in the U.S., compared to 21 cases in the oil and gas industry, which is spread across roughly 876,000 sites, some Democrats suggested the proper question is why the government is taking such a hard look at wind farms.

"It's really embarrassing, frankly, what passes for oversight sometimes around here, and it does seem to me that this committee sometimes would rather have an issue than the information," Rep. Jared Huffman, D-Calif., said.

DeFazio suggested the Republican-led investigation is fallout from an earlier case in which a deputy assistant secretary at the Fish and Wildlife Service under President George W. Bush was found to have manipulated agency decisions for political gain. "So, yes, what we're dealing with here is sort of the ghost of Julie MacDonald, who was a political hack in the Bush administration who did manipulate, attempt to manipulate, career employees and come up with decisions that were based in her judgment and not in the judgment of scientists," DeFazio said.

The episode forced the FWS to redo "several dozen" decisions that MacDonald was involved in, Ashe said. Now, the process for things such as proposals for endangered-species listings and critical-habitat determinations do not receive political-level review, he said.

"They don't?" DeFazio asked.

"They do not," Ashe replied.

"Oh, my gosh," DeFazio deadpanned. "Wow, that's interesting."

The Sept. 10 hearing was held a day after a report critical of the Interior Department's ethics program and track record of recusing senior officials was posted to the Natural Resources Committee's website.