56 Under the agreement, Griles is prohibited from dealing with matters involving NES for six years and is barred from matters concerning “former” clients for a year.
Griles has trouble keeping his promises. His appointment calendar, obtained by Kristen Sykes of the environmental organization Friends of the Earth, indicates that Griles met repeatedly with oil-industry clients to discuss offshore leases in which they had an interest.
One of those companies was Chevron, which paid Griles $80,000 to lobby the Interior Department even while his nomination was pending before the Senate in 2001.
57 As soon as he was confirmed, Griles negotiated a lucrative deal for Chevron in which the federal government would pay the company a whopping $46 million to drop its plans to drill off the Florida coast. This decision both enriched Griles’ former clients and enhanced the reelection prospects of President Bush’s brother Jeb as governor of Florida.
58
Griles continued to flout ethics laws. He had signed a second recusal agreement when he took office, this one banning him from involvement in decisions about a coal-bed methane project in Wyoming and Montana, which was being promoted by six former clients. Career personnel in the EPA’s Denver office had delivered a devastating assessment of the proposal, which called for building 51,000 wells in Wyoming’s Powder River basin.
59 The project will require 17,000 miles of new roads and 20,000 miles of pipeline and will foul pristine landscapes with trillions of gallons of toxic wastewater.
60 Several months after Griles signed his recusal agreement, he wrote a memo to Linda Fisher, EPA deputy administrator, demanding that she overrule her Denver employees. In his letter, Griles scolded the EPA for investigating the effects of coal-bed methane development on water quality and warned Fisher not to “impede the ability to move forward in a constructive manner.”
61 Thanks to Griles, the project was approved.
Griles again violated his recusal pledge by meeting with the National Mining Association, a former client, while the industry group was lobbying the administration to relax restrictions on mountaintop-removal operations. He also had 14 other meetings on mountaintop removal with industry and government officials.
62 And then on April 15, 2002, he assembled the officials who oversee the mining and drilling operations of his former clients for a dinner party at the home of the owner of NES, Marc Himmelstein, who was now representing those clients. Included at Himmelstein’s soiree were Rebecca Watson, assistant secretary for Land and Minerals Management; Kathleen Clark, director of the Bureau of Land Management; and Jeffrey Jarrett, director of the Office of Surface Mining.
63
With Republicans chairing the committees, no congressional subpoenas have interrupted the Griles scandals. In fact, an Interior Department spokesman has gone so far as to say that Griles’ conduct represents “the highest ethical and professional standards.”
64
In May 2002, Senator Joseph Lieberman asked the Interior Department to investigate Griles. On June 3, 2003, environmental and government ethics organizations, including the NRDC, joined Whitney North Seymour Jr., former independent counsel and Richard Nixon’s U.S. attorney for the Southern District of New York, in calling for the appointment of a special counsel to conduct a criminal investigation of Griles for perjury and ethics laws violations, and for steering government contracts to former clients.
65 The Interior Department has refused to turn over 300 pages of documents concerning NES’s $1.1 million payment to Griles that environmental groups requested in September 2002 under the Freedom of Information Act.
66
On March 16, 2004, the Office of the Inspector General for the Interior Department concluded an 18-month investigation, commenced at Senator Lieberman’s request, with a report setting forth strong evidence of unethical conduct by Griles. The report characterized the initial choice to appoint Griles, with all his inherent conflict of interest, as “a train wreck waiting to happen.” It confirmed that Griles had regular dealings with energy- and mining-industry clients of his former lobbying firm even as he continued to receive income from the firm’s owner. The report concluded that evidence showed that “the department’s leadership did not take ethics seriously.”
67
The inspector general describes an ethical atmosphere within Interior so lax that when an “onslaught of public criticism erupted” over Griles’ dinner at Himmelstein’s, Griles was told by Timothy S. Elliott, the department’s deputy associate solicitor, that there would be no problem so long as Griles paid for the dinner himself.
68 Griles wrote Himmelstein a $180 check, which went uncashed for many months.
Investigators complained of the rough-man handling they got from Griles, Norton, and their powerful friends. The investigation, the report says, was obstructed by “an unanticipated lack of personal and institutional memory; conflicting recollections; [and] poor record-keeping.” The report added, “When we interviewed the Deputy Secretary and discussed our efforts to discern the status of his client list, he commented simply, ‘Good luck.’ ”
69
When investigators questioned Griles and Himmelstein about Griles’ involvement in the federal payoff to former clients Shell and Chevron, in light of the formal recusal he had signed banning him from any dealings with those companies, Griles told them that he had listed these companies erroneously on his recusal form. Himmelstein claimed, apparently with a straight face, that Griles had not lobbied for Chevron, despite Griles’ having been listed as a Chevron lobbyist in filings with ethics offices.
Griles told the inspector general that he could not explain why Chevron’s first six payments to his firm included the annotation “Attn.: Steven Griles.” At first he maintained that his meetings with Shell’s subsidiary, Aera, were permitted because his recusal did not apply to subsidiaries; he later changed tack and claimed he was unaware that Aera was owned by Shell.
70
In a letter to Senator Lieberman, Inspector General Earl E. Devaney indicated his suspicion that in at least two instances Griles had violated ethics rules; Devaney also forwarded his report to the Office of Government Ethics for resolution. But that office referred the two cases to Interior Secretary Norton, who was also criticized in the report.
71 Norton announced that she considered the case closed. “I’m glad that we can now put these allegations behind us,” she said.
72 Griles added with finality, “I am glad this matter is behind me and we can continue to work to advance our initiatives.”
73 Devaney had presciently complained in his transmittal letter to Norton that the American people might never get “a sound legal conclusion” on Griles’ activities inside and outside government as well as the widespread ethics abuses in her department.
74
Griles enjoys a level of access to the White House usually reserved for cabinet officials. During his first 15 months on the job, he attended dozens of White House meetings, including audiences with President Bush and two with Karl Rove, and White House officials have invited him to at least 30 meetings.
75 Bush quickly deployed Griles to help shape national energy policy. He met at least 37 times with industry officials to help craft Bush’s Clear Skies agenda, New Source Review standards, and other Clean Air Act rollbacks, even though Interior has almost no jurisdiction over air issues.
76 Griles knew the terrain, having lobbied for 13 industry clients on clean air issues before becoming deputy secretary.
But nothing would earn the coal industry’s gratitude more than Griles’ efforts on behalf of mountaintop-removal mining. Since the 1970s, Griles has worked to allow this devastating practice to flourish.
Before Bush was elected, Appalachia still had a few powerful legal tools at its disposal that Griles hadn’t managed to dismantle during his Reagan-era stint. One of them was the Clean Water Act, which prohibits the discharge of waste into U.S. waterways without a permit from the EPA. These permits ma
y only be issued if the polluter complies with rigorous standards meant to ensure that there is no decline in water quality. Congress, however, gave limited authority to the Army Corps of Engineers to issue permits allowing the placement of “fill material” in water to build docks, jetties, bulkheads, or other beneficial developments. However, since 1975 the definition of “fill material” had explicitly prohibited fills composed of waste. Nonetheless, the Corps had been permitting coal companies to dump mountaintop-removal waste into streams for years — ostensibly under this limited permitting authority — even though the agency had no legal power to do so. The dumping of mountaintop-removal debris into wilderness streams clearly is not a “beneficial development.” In 1998, when Corps official Rodney Woods was asked during a deposition in Cincinnati why the Corps had been illegally approving the disposal, he stated that his agency “just sort of oozed into that.”
77
In 1998, Joe Lovett, an attorney who runs the Appalachian Center for the Economy and the Environment, and Jim Hecker, from Trial Lawyers for Public Justice, sued the Army Corps of Engineers and state regulators on behalf of local citizens and a regional Appalachian group.
78 The law was absolutely clear and the case ultimately resulted in a decision in October 1999 by Chief Judge Charles Haden of the Southern District of West Virginia Federal District Court. Judge Haden declared that it was illegal to dispose of mining waste in streams. He wrote that the practice was a violation of the Clean Water Act’s water quality standards, noting that “Valley fills are waste disposal projects so enormous that, rather than the stream assimilating the waste, the waste assimilates the stream.”
79
That decision was the principal reason the industry wanted its guardian angel back in government. On August 5, 2001, three days after signing his recusal letter, Griles brought a reassuring message to a gathering of the West Virginia Coal Association, an audience that included his former clients. “We will fix the federal rules very soon on water and spoil placement,” he said.
80 It was a blatant reference to the dumping of waste from mountaintop removal into streams.
Then, in May 2002, on the day I flew across Appalachia, the Bush administration engaged in one of its most cynical maneuvers yet. At Griles’ urging, the EPA and the Army Corps of Engineers followed the advice of the National Mining Association and redefined the waste from mountaintop mining as fill. Unfortunately, the prohibition against using waste material as fill, though clearly representing the intent of Congress when the Clean Water Act was passed, did not appear in the act itself.
The Bush rule change created a loophole in the Clean Water Act big enough to drive a Dragline through. And it doesn’t just affect Appalachia. Other industries — hard-rock mineral mining, demolition companies, waste disposal operations — all may take advantage of this new loophole. They too may obtain Army Corps permits to bury wetlands, streams, and other waters with their wastes. This is the most significant weakening of the Clean Water Act since it was passed three decades ago.
Chief Judge Haden immediately struck down this new definition sua sponte — meaning on his own impulse, without prompting by either side — calling it an “obvious perversity.” But the notorious right-wing judges on the Fourth Circuit Court of Appeals upheld the White House’s rule change.
Emboldened by this victory, Griles pressed forward to eliminate the last major federal obstacles to mountaintop removal.
The 1998 lawsuit by Hecker and Lovett contained two other charges against King Coal. First they challenged a permit issued by the Army Corps to Griles’ then-client Arch Coal that allowed construction of the largest strip mine in history, despite the fact that the Corps had not performed the environmental impact statement mandated by the National Environmental Policy Act. Lovett and Hecker also charged the Corps with violating the “buffer zone” rule under the Surface Mining Reclamation Act (SMCRA), which forbids the discharge of mining waste within 100 feet of larger streams.
81 Again, both the law and the government’s violations were clear as daylight.
Judge Haden, who forbade Arch Coal from constructing the mine, then went a few steps further, forbidding the Corps from issuing any more permits for mining activities in buffer zones, a ruling that would have spelled the end for large mountaintop-removal mines. The conservative Fourth Circuit reversed Judge Haden in a wacky decision that held that the buffer zone challenge should have been brought in state court. Lovett and Hecker refiled in state court in 2003 but moved forward with the EIS challenge in federal court.
Meanwhile, the EPA official responsible for Appalachia, Mike McCabe, recognizing the merit of Lovett and Hecker’s position, settled the federal case by agreeing to prepare the EIS and to require greater scrutiny for future permits. As a result of the settlement, no new mountaintop-removal mining permits were issued for approximately two years. With new mountaintop removal temporarily on hold, Lovett and his group began negotiating with the federal government. Several federal agencies — the EPA, the Office of Surface Mining, Fish and Wildlife, and the Army Corps of Engineers — started working with the state of West Virginia on this EIS in 1999. “I thought we were making some progress,” recalls Lovett. McCabe said that he did not foresee fills greater than 75 acres ever being allowed in Appalachia after the thorough study of the destruction mandated by the EIS. “The problem,” Lovett explains, “is that Bush became president and the whole thing went to hell.”
The Bush administration took over the EIS, handing it to Steven Griles to rewrite to suit King Coal.
82 In April and May of 2002, Lovett, Hecker, and their clients got a look at the scientific studies that would form the EIS. They were released to them by a decent and courageous midlevel bureaucrat in the regional EPA office.
The documents contained bad news for King Coal. Even smaller fills, several studies revealed, would permanently destroy vast portions of the unique Appalachian environment.
Griles was undeterred. On October 5, 2001, barely three months after recusing himself from involvement with issues affecting his former coal-industry clients, he sent a letter to five federal agencies saying that the EIS, rather than focusing on minimizing environmental impacts, “must consider and recommend resolutions that will allow steep slope Appalachian coal mining [i.e., mountaintop removal] to proceed.” Griles continued: “We do not believe that the EIS, as currently drafted, focuses sufficiently on these goals.” He went further: “We must ensure that the EIS lays the groundwork for coordinating our respective regulatory jurisdiction in the most efficient manner,” he wrote. “At a minimum, this would require that the EIS focus on centralizing and streamlining coal mine permitting.” Griles sent his letter to James Connaughton, White House Council on Environmental Quality director, and Jeffrey Jarrett, Office of Surface Mining, as well as high-level decision makers in the OMB, the EPA, and the Army Corps of Engineers.
83
Just one month after he sent the memo, coal interests contributed $150,350 in soft money to the Republican National Committee.
84 Griles’ former client, Arch Coal, kicked in $15,350 that month, part of $76,894 the company has given to the Bush campaign and the RNC since 1999.
85
Griles proceeded to rewrite the EIS to weaken safeguards against mountaintop-removal mining. Eight million dollars’ worth of compelling scientific and technical studies running over 5,000 pages were moved into appendixes. The main body of the EIS became a discussion about how to make it easier for the coal industry to get permits.
“There’s a surreal kind of disconnect between the science of the EIS and the recommendations that came from it,” Lovett says in his dry Appalachian twang. “The purpose of the EIS was to study the environmental and social impacts of mountaintop removal and find ways to limit the destruction. Griles ordered them instead to use the process to make it easier for the coal industry to get permits. It’s already easy enough for the coal industry to get permits.”
Meanwhile, Lovett’s cas
e on the buffer zone issue was now close to a decision in the state administrative appeals process, and the coal companies were frantic to derail it. Buffer strips are the last remaining impediment to creating massive fills. Griles decided to use the EIS as a vehicle for jettisoning the buffer zone rule. He inserted in the EIS a proposal to repeal the stream buffer rule, a change that will legalize the obliteration of Appalachia’s streams.
Over 80,000 people filed comments specifically opposing the devastating buffer zone rollback, and 12 GOP House members wrote Bush urging him not to make the “ill advised and dangerous” rule change.
86
On January 6, 2004, the comment period on Griles’ draft EIS for mountaintop-removal mining closed. The next day, before all the comments could possibly have been read, the administration published its proposal to change the stream buffer rule. On January 7 the Federal Register contained a notice proposing to abolish the rule. The proposal is likely to become law before the November election. Joan Mulhern of Earth Justice, an environmental group that helped generate tens of thousands of comments, said, “They had obviously already sent the rule change to the Federal Register before the comment period had even closed, because it takes a couple of days for proposed rules to get printed. Clearly the Bush administration doesn’t care what the public thinks.”
Crimes Against Nature Page 14
