About that Pipeline Secrecy Bill…

About that Pipeline Secrecy Bill…

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.

** 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.”

Three core issues for landowners, residents: Part 3

Three core issues for landowners, residents: Part 3

In the first two installments of our three-part series on core issues for landowners and residents affected by the Enbridge Line 6B project (and that’s pretty much all of us!) we discussed individual landowner negotiations and local consent. In our discussion of the latter, we emphasized the importance for local municipalities to try and assert their autonomy and authority (granted by the state constitution) by insisting that Enbridge follow the law and seek consent before beginning construction. We ended that post with the key question: what good it will do for local municipalities to demand that Enbridge seek their consent? That is, what is to be gained?

The key answer to that question (in our view) can be summed up in a single word: safety.

Core issue #3: Safety   (more…)

Three core issues for landowners, residents: Part 2

Three core issues for landowners, residents: Part 2

Core issue #2: Local consent

When a right of way agent from Enbridge knocked on our door carrying a map showing the route of Line 6B, a copy of Michigan’s eminent domain laws, and the bad news that we were going to see the stand of very large trees and the perennial garden in our backyard totally razed, we didn’t quite know what hit us. We’d seen Enbridge in the neighborhood two years earlier doing “integrity digs” and we had received notice that they had plans to “replace” the pipe that runs across our property. But that’s about it. It was months into our negotiations before we got word of any public forums at which the project would be discussed, news stories about the project were pretty much non-existent, and our local municipality appeared to have very little interest (at least formally) in the project.

It was as if Enbridge’s sudden appearance in our township was just a change in the weather: a natural occurrence like rain or fog, something hardly worth mentioning, much less something anyone could do anything to change.  (more…)

Three core issues for landowners, residents: Part 1

Three core issues for landowners, residents: Part 1

Among the most disheartening elements of our experience as landowners dealing with Enbridge has been an apparent lack of knowledge or even interest in the Line 6B “replacement” on the part of our elected officials (at the federal, state, and local levels) and the press. The disturbing lack of public discussion and awareness on this issue– and it appears that Enbridge likes it that way– is one of the reasons we started this blog.

In a three-part post, I’d like to mention some core issues that ought to be of widespread public concern, with a word or two about what individuals can do to help raise awareness of them:

Core Issue #1: Individual landowner negotiations. (more…)