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!<\/p>\n
Readers of this blog are probably aware of a certain anniversary that’s coming up in a couple of weeks.<\/a> We’ll be remembering also. If you’re in the area, you should try to make the event.<\/p>\n And while you’re pondering that dark part of Michigan’s history, you might take a moment to think about\u00a0how 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.<\/p>\n We’re reminded of this because of a baffling\u00a0recent post from our friends up at the Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA)<\/a>. Thanks to the dedication and hard work of their founder Dave Core, they’ve been helping\u00a0landowners 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<\/a>, which is quite interesting.<\/p>\n 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<\/em> to take issue with us, but they clearly don’t understand the issue or our position– we think it’s only appropriate to respond.<\/p>\n Honestly, there’s so much wrong with CAEPLA’s take on the proposed changes to Michigan’s FOIA laws<\/a>— what we’ve been calling the Enbridge Secrecy Bill–\u00a0that we hardly know where to begin. CAEPLA’s\u00a0argument 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.<\/p>\n Now, this is both completely nonsensical and completely irrelevant to the debate\u00a0at hand (over HB 4540). We\u00a0explain why below. But first we want to say that\u00a0virtually 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:<\/p>\n 1. CAEPLA is needlessly snarky<\/p>\n We’re not sure why, but CAEPLA adopts an unnecessarily snide\u00a0tone, complete with industry-like caricatures and straw-man arguments. Here’s how they begin:<\/p>\n House Bill 4540 is being depicted as a threat to the public because it would make it more difficult for those who \u201care concerned about\u201d (read: oppose) pipelines to access companies\u2019 \u201csecret\u201d information.<\/p><\/blockquote>\n Now, since CAEPLA takes\u00a0as its\u00a0example of the bill’s critics this\u00a0post of ours<\/a>, 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\u00a0who opposes all pipelines. Frankly, we’re surprised by this. It’s\u00a0the same tired line we’ve heard from the industry<\/em><\/a> time and again<\/a>. It’s disingenuous and lazy. We’ve responded to it<\/a> on numerous occasions. The fact is that sometimes, for good reasons, we oppose pipelines<\/a>; sometimes we don’t.<\/p>\n Here’s a second example of how CAEPLA paints a distorted picture of opponents of HB 4540:<\/p>\n Opponents of the exemption for pipeline companies argue that FOI laws are the only way to protect stakeholders \u2013 including landowners \u2013 from the growing risks associated with aging pipelines, and from the allegedly more dangerous contents coursing through them.<\/p><\/blockquote>\n 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<\/a>, have advocated\u00a0many<\/em> ways<\/a> to protect against the risk of more pipeline incidents. Transparency is just one piece of a\u00a0very complicated puzzle.<\/p>\n 2. CAEPLA thinks apples are oranges<\/p>\n As we said above, the heart of CAEPLA’s argument is that HB 4540 is essentially a privacy issue. For instance, they say:<\/p>\n The word secret is really just another more ominous way of saying\u00a0private<\/em>. As in private property.\u00a0 The private property of pipeline company shareholders, which of course includes proprietary information.<\/p><\/blockquote>\n The word secret is not another way of saying private; it’s a way of saying undisclosed. We have no idea why\u00a0CAEPLA would try to smuggle\u00a0the 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<\/em>\u00a0privacy invaded, do you? That’s actually the line that CAEPLA takes. We’re not kidding. They say so very explicitly:<\/p>\n Threat to Pipeline Privacy is a Threat to\u00a0Your<\/em>\u00a0Privacy<\/p><\/blockquote>\n 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\u00a0program and pretty soon you’ll be forced to reveal what goes on in your bedroom!), it conflates\u00a0things 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<\/em> have rights to personal privacy like you do. In fact, the U.S. Supreme Court just recently made that very clear<\/a>. Secondly, CAEPLA conflates\u00a0property rights with\u00a0privacy 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\u00a0distinguishing<\/em> it from the right to property<\/a> (in fact, that little bit of history is sort of a thing for us<\/a>). 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\u00a0covered by FOIA laws. The former is irrelevant.<\/p>\n So to sum up: property is not<\/em> privacy. A corporation’s proprietary information has nothing<\/em> 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\u00a0attempt to force the one on the other is at best confused\u00a0and 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:<\/p>\n But the power of government to pry open a privately owned pipeline company’s proprietary information is the same power to pry open\u00a0any<\/em>\u00a0business’s private affairs and property, including yours<\/em>.<\/p><\/blockquote>\n 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.**<\/p>\n 3. Which brings us to our final point: CAEPLA doesn’t understand anything at all about HB 4540 or, it appears, FOIA laws generally.<\/p>\n What we’re talking about here– what Michigan’s HB 4540 is about, what FOIA laws are always<\/em> about– is access to public<\/em> 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\u00a0agencies) than they already do. This is CAEPLA’s biggest mistake.\u00a0They appear\u00a0not 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\u00a0has nothing\u00a0to do with “expropriat[ing] a private enterprise’s informational property.” CAEPLA\u00a0is making that up, too.<\/p>\n Let us be extra\u00a0clear on this point: nobody– NOBODY– is suggesting that pipeline companies don’t have the right (the property<\/em> 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\u00a0post that CAEPLA links to (which they\u00a0apparently either didn’t read or didn’t comprehend), both federal and state laws\u00a0already<\/em> provide exemptions for that sort\u00a0of information. We don’t have a problem with that.<\/p>\n The reason that HB 4540 is objectionable is because it goes far\u00a0beyond<\/em> those existing rules and laws. It would potentially allow pipeline companies to reveal even less<\/em> than they reveal now. In fact, the bill’s language is so vague that it could allow pipeline companies\u00a0to exempt\u00a0almost 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\u00a0like 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.<\/p>\n To once again\u00a0put 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\u00a0they 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\u00a0bill that would prevent the public from gaining access to public information.<\/p>\n 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\u00a0they 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<\/a>. 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\u00a0their immediate purview.<\/p>\n —<\/p>\n<\/div>\n