We hope everyone is enjoying the summer. We certainly are, which is why we’ve been (more than) a little neglectful of the blog of late. We hope you’ll forgive us!
Readers of this blog are probably aware of a certain anniversary that’s coming up in a couple of weeks. We’ll be remembering also. If you’re in the area, you should try to make the event.
And while you’re pondering that dark part of Michigan’s history, you might take a moment to think about how we can prevent such a thing from happening ever again. That’s a heavy task, but we can tell you one thing that won’t help: less transparency from pipeline companies.
We’re reminded of this because of a baffling recent post from our friends up at the Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA). Thanks to the dedication and hard work of their founder Dave Core, they’ve been helping landowners along pipelines and protecting property rights in Canada for a long time and have done tons of good. We appreciate their efforts tremendously and respect the model they have developed, which is quite interesting.
But earlier this month, they waded into matters down here in Michigan and quickly got themselves in way over their heads. The result is a whole lot of misinformation, shoddy argumentation, and factual inaccuracies. We’re disappointed and sorry to see it. But since they’re taking issue with us specifically– well, they try to take issue with us, but they clearly don’t understand the issue or our position– we think it’s only appropriate to respond.
Honestly, there’s so much wrong with CAEPLA’s take on the proposed changes to Michigan’s FOIA laws— what we’ve been calling the Enbridge Secrecy Bill– that we hardly know where to begin. CAEPLA’s argument is convoluted and, frankly, a little bizarre. And if we didn’t know better, we’d think it was cooked up by pipeline companies themselves. In a nutshell, CAEPLA’s position is this: demanding disclosure of pipeline companies’ proprietary information is ultimately a threat to the protection of individual landowner’s personal or private information.
Now, this is both completely nonsensical and completely irrelevant to the debate at hand (over HB 4540). We explain why below. But first we want to say that virtually every sentence of the post contains something objectionable– if not just plain wrong. For that reason, we’re tempted to dissect it sentence by sentence. But that would probably make for tedious reading and this is going to be long enough as it is. So we’ll just point out three big problems:
1. CAEPLA is needlessly snarky
We’re not sure why, but CAEPLA adopts an unnecessarily snide tone, complete with industry-like caricatures and straw-man arguments. Here’s how they begin:
House Bill 4540 is being depicted as a threat to the public because it would make it more difficult for those who “are concerned about” (read: oppose) pipelines to access companies’ “secret” information.
Now, since CAEPLA takes as its example of the bill’s critics this post of ours, one might reasonably think that the quoted phrase “are concerned about” is something we wrote. But it’s not. We don’t know who are what they’re quoting. The quote seems made up so that CAEPLA can engage in that little bit of parenthetical snark, taking a shot at people who oppose pipelines. What that has to do with Michigan’s HB 4540 we have no idea. Nor do we know what pipeline CAEPLA might be referring to; evidently they just want to conjure up some phantom image of a person who opposes all pipelines. Frankly, we’re surprised by this. It’s the same tired line we’ve heard from the industry time and again. It’s disingenuous and lazy. We’ve responded to it on numerous occasions. The fact is that sometimes, for good reasons, we oppose pipelines; sometimes we don’t.
Here’s a second example of how CAEPLA paints a distorted picture of opponents of HB 4540:
Opponents of the exemption for pipeline companies argue that FOI laws are the only way to protect stakeholders – including landowners – from the growing risks associated with aging pipelines, and from the allegedly more dangerous contents coursing through them.
Again, this is nonsense. We don’t know anybody who has ever said FOIA “laws are the only way to protect stakeholders” from pipeline risks. That would be a foolish thing to argue– which is why nobody is arguing it. Opponents of HB 4540, including ourselves, have advocated many ways to protect against the risk of more pipeline incidents. Transparency is just one piece of a very complicated puzzle.
2. CAEPLA thinks apples are oranges
As we said above, the heart of CAEPLA’s argument is that HB 4540 is essentially a privacy issue. For instance, they say:
The word secret is really just another more ominous way of saying private. As in private property. The private property of pipeline company shareholders, which of course includes proprietary information.
The word secret is not another way of saying private; it’s a way of saying undisclosed. We have no idea why CAEPLA would try to smuggle the word “private” into this discussion. Presumably, it’s meant to push all sorts of buttons, since we all know that privacy is sacrosanct. You don’t want your privacy invaded, do you? That’s actually the line that CAEPLA takes. We’re not kidding. They say so very explicitly:
Threat to Pipeline Privacy is a Threat to Your Privacy
Now that’s just plain weird. In fact, there is no way whatsoever in which this statement is true. It violates about four different logical fallacies, maybe more. Aside from its implied slippery slope (ask the pipelines to reveal their emergency response program and pretty soon you’ll be forced to reveal what goes on in your bedroom!), it conflates things that are actually quite distinct. First, it conflates the ostensible “privacy” of pipeline companies with your personal privacy. But that’s just plain false. Corporations do not have rights to personal privacy like you do. In fact, the U.S. Supreme Court just recently made that very clear. Secondly, CAEPLA conflates property rights with privacy rights. But those things, too, are very different. We don’t want to bore you, but we hope you’ll trust us when we tell you that, historically, the whole idea of a right to privacy depended upon distinguishing it from the right to property (in fact, that little bit of history is sort of a thing for us). Thirdly, it conflates pipeline companies’ proprietary information with the public records they are required to submit to state and federal governments. Those things, too, are distinct. It’s the latter that are covered by FOIA laws. The former is irrelevant.
So to sum up: property is not privacy. A corporation’s proprietary information has nothing whatsoever to do with your right to privacy. Nothing. In the same way, Michigan’s FOIA laws (especially as rewritten by HB 4540) have nothing whatsoever to do with your “personal and business documents.” There is simply no way to get from the one to the other. They’re apples and oranges. CAEPLA’s attempt to force the one on the other is at best confused and at worst a cheap ploy designed to scare you. One might even call it–to borrow a term CAEPLA applies to us– “alarmist.” In fact, if you want an example of alarmism, you really couldn’t do better than this:
But the power of government to pry open a privately owned pipeline company’s proprietary information is the same power to pry open any business’s private affairs and property, including yours.
That sounds bad, frightening even. The problem is that the government here is not prying open any company’s proprietary information. Nor is it prying open any individual’s “private affairs and property.” CAEPLA is just making this up.**
3. Which brings us to our final point: CAEPLA doesn’t understand anything at all about HB 4540 or, it appears, FOIA laws generally.
What we’re talking about here– what Michigan’s HB 4540 is about, what FOIA laws are always about– is access to public records, not to proprietary information. Opponents of HB 4540 aren’t seeking to “pry open” anything. They’re seeking to prevent pipeline companies from concealing even more information (that is, public information, such as documents submitted to government agencies) than they already do. This is CAEPLA’s biggest mistake. They appear not to understand the first thing about what HB 4540 says or why people like us think it is a very bad bill. Instead, they mischaracterize the whole debate over the bill as some attempt on the part of “opponents” to gain access to so-called “private” things they don’t already have access to, to try and “snoop” on the pipeline companies. That’s just plain silly. The debate over HB 4540 has nothing to do with “expropriat[ing] a private enterprise’s informational property.” CAEPLA is making that up, too.
Let us be extra clear on this point: nobody– NOBODY– is suggesting that pipeline companies don’t have the right (the property right) to keep certain kinds of information from the public, whether for proprietary or for security reasons. In fact, as we make very clear in the post that CAEPLA links to (which they apparently either didn’t read or didn’t comprehend), both federal and state laws already provide exemptions for that sort of information. We don’t have a problem with that.
The reason that HB 4540 is objectionable is because it goes far beyond those existing rules and laws. It would potentially allow pipeline companies to reveal even less than they reveal now. In fact, the bill’s language is so vague that it could allow pipeline companies to exempt almost anything from disclosure. And we’re not talking here about trade secrets or the emails that Enbridge executives send to their spouses, we’re talking (it bears repeating) about public records, things like emergency response procedures, the results of internal corrosion inspections, and integrity management systems– the kinds of things that would allow the public to participate in safety accountability.
To once again put this more simply: CAEPLA would have you believe that opponents of HB 4540 have embarked upon some kind of invasive endeavor to gain access to (so-called “private’) information they can’t currently access. We’re not sure if CAEPLA seriously believes that or if they are deliberately distorting the situation. Nor are we sure what CAEPLA has to gain by distorting the debate. But whatever the case, the truth is that what we really oppose is a bill that would prevent the public from gaining access to public information.
Honestly, we have no idea why CAEPLA has suddenly decided to carry water for the industry (and Enbridge in particular). Nor do we know why they suddenly decided to weigh in on matters about which they clearly don’t have even the most basic understanding. We hope they continue their good work, advocating on behalf of landowners. We applaud those efforts; we always have. But we also suggest that they might want to do a little more homework or take a little more care before weighing in on matters beyond their immediate purview.
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** Even if CAEPLA’s fictional scenario were real (which it is not), here is a clear example of just how far-fetched and ill-informed it is. These are two of the existing exemptions from disclosure in Michigan’s FOIA law specifically designed to protect privacy:
“(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.”
“(b) (iii) [Law enforcement records that would] Constitute an unwarranted invasion of personal privacy.”
Thanks for the info about the anniversary meeting in Battle Creek! I’ll be there.
Yours is an excellent response to a baffling piece of writing from the CAEPLA article. The proposed changes to Michigan’s FOIA law remind me of the so-called “Halliburton exemption” (and some other monikers given to it) that was contrived by Dick Cheney and oil/gas industry representatives in secret that allowed oil/gas drillers exemption from Clean Water Act regulations. That despicable secret activity had the light shown on it after the Gulf oil spill even though it preceded the horrific deep-water hydraulic fracturing oil spill into the Gulf of Mexico that involved Halliburton. It was actually aimed at clearing all regulatory “obstacles” that might restrain the rapidly expanding “fracking” operations across the country, operations that were enriching the monumentally rich Halliburton and Halliburton’s special friends like Dick Cheney. Over and over we see the devastating attacks on all that is in place to protect and advance public health and environmental protection of all kinds from the oil/gas/coal/and related industries that are writing America’s laws. If you are considering buying property in Michigan, whether an existing home or vacant land to build a home, just try to find information about the location of pipelines, information that is relatively simple to access and relatively easy to understand, up to date and accurate. Try to find information about the location of the horrific sand mining operations that are absolutely destroying Michigan’s landscape, resources, soil, air quality, property values, beauty and so much more. You can use Google maps and mapping features to try to discern locations and extent of these monstrous operations, but Google maps are not current and between, say, the year that Google did the last mapping and now, new or expanded sand mining operations may not show up on the maps- unless you suddenly realize that such an industrial mining operation has developed in your back yard! Michigan’s (and other upper Midwest) sand mining, e.g. “frack-sand”, is related to to the broader oil/gas industry, to fracking, to the auto industry, to pipelines and oil/gas distribution, to rail/truck/ship transport because they are all related to the mining and distribution of “fossil fuel’ products.” Add in the horrific mistreatment of the Earth’s precious natural resource, fresh water, dwindling across the globe, necessary for life, yet despoiled forever by these oil/gas/mining/drilling/pipeline operations and anyone can see how pervasive and destructive this industry is – and they are writing the laws that “elected representatives” allow to be used against citizens, the environment, and just plain decency and common sense. The collusion between Michigan government and the noted industry(-ies) is already easily apparent; what is not apparent – and what they want to make even less apparent – are all the factors that are affecting all life in North America: water, soil, air, beauty, environment and ecology, safety, public health, property values. Enbridge, Halliburton are some names in a long list of corporations made up of people and these people have repeatedly demonstrated that they are people who willingly and knowingly destroy all that is necessary for all life, necessary for all the magnificence of this precious planet. They are people who should be analyzed for psychopathic and sociopathic disorders because what they do – and what they WANT to do with impunity, in secret, and without accountability – appears to be done without conscience or any genuine awareness of right and wrong, without sanity. On a human scale, destruction without conscience is serious mental illness; on a global scale it is serious mental illness on a larger, very dangerous scale. Normal human beings fear sociopaths and psychopaths, for good reason; yet our nation appears to be allowing sociopaths and psychopaths – those who destroy and harm without conscience – to write our laws, to be in control of our natural resources, to establish their operations of destruction wherever they choose. This is a description of evil, in spiritual terms, and of extreme dysfunction and disorder, in psychological terms. “Normal” people are being run over by the unimaginably powerful and rich psychopaths who are running their pipelines through precious waterways and soil, who are leveling dunes and scraping land clear of vegetation and making lunar landscapes of Earth’s surface, who make foul industrial zones out of natural settings. The perversion of all that is decent and simple common sense is evident in all that they do and now for Michigan government to be lewdly and luridly entertaining the notion that the psychopaths and sociopaths should have the unninhibited “right” to do what they do in secret with the imprimatur of “our” government on that “right” is just a line between sanity and insanity that should not be crossed. If all the “normal” people working on pipeline issues and fracking issues and sand mining issues and clean water and Great Lakes and Michigan waters and (a legitimate) “pure Michigan” (not a marketing device) issues and real estate issues and the tourist “industry” and so on – if they all joined forces to protect, repair, conserve, promote and save all the magnificence that makes Michigan special (waters in marvelous abundance, woods, soil that produces wonderful foods), clean air, beautiful landscapes and that allows humans and all life to exist safely and healthfully in Michigan and to stand up to forces that destroy all that, that would be a powerful opposition to those forces. Michigan voters must ask themselves: why are we repeatedly electing those who willingly destroy us? That guy who is promoting the FOIA changes in order to legislate the secrecy of pipeline locations and claims he is doing it on the basis of national security – that guy? – let him have all the fracking and pipelines he wants in HIS backyard. And when he and his ilk make the usual, invariable rejoinders like “oh, it’s just the NIMBY (not in my backyard) crowd, it’s just the tree-hugging crowd, it’s the ‘socialists’, it’s the luddites – etc. etc. etc. – just tell him/them: put the sand mining operation in YOUR backyard, put the fracking operation in YOUR backyard, put the pipleline across YOUR water well, your property, your garden – and we promise we won’t tell anyone where those things are located.
Thanks Jeff. Looks like a very good read. I just recently had an article published in the Louisiana Ground Water Association’s Summer 2015 publication entitled “Energy and Salt Use are Pressuring Our Most Valuable Resource”. I would be happy top send you a copy. It was a bit convoluted but I attempted to connect energy drilling and transport to the use of road salt and its extraction processes. It was odd that Louisiana and Michigan have a lot in common.
Happy 4th of July!