Subject: Draft Environmental Directive for the Department of Homeland Security (DHS)
Meeting: October 12, 2004
Purpose of the meeting: To discuss issues raised in public comments on the draft Environmental Directive and other issues. The discussion relating to the draft Environmental Directive is summarized below.
- Lisa Branch, Office of the General Counsel, DHS
- Hugo Teufel, Office of the General Counsel, DHS
- Ellen Siegler, Office of the General Counsel, DHS
- Sharon Buccino, Natural Resources Defense Council (NRDC)
- Meredith Fuchs, National Security Archive
- Sean Moulton, OMB Watch
- Patricia McDermott, American Library Association
- Rena Steinzor, Center for Progressive Regulation
Summary of Discussion:
- Categorical Exclusions - Ms. Buccino said that NRDC believes that some proposed Categorical Exclusions (CatEx) were not supported by the administrative record. She mentioned two examples, A-7 and B-10. In regard to A-7, she said that DHS should not expand this CatEx to hazardous waste or to disposal because NRDC believes that both are beyond the scope of the record support. In regard to B-10 (aircraft overflights), she stated that this CatEx was a blanket exclusion which goes beyond precedent and record information.
- Public Comments - NRDC urged DHS to adopt a policy that would favor seeking public comment on Environmental Assessments as well as on Environmental Impact Statements, especially where issues are likely to be controversial. Ms. Buccino mentioned that recent case law in the Ninth Circuit supported seeking public comment on EAs, although she acknowledged that the Council on Environmental Quality’s NEPA regulations do not require it.
- Extraordinary Circumstances - NRDC also objected to the draft Environmental Directive’s treatment of “Extraordinary Circumstances” in connection with Categorical Exclusions. Ms. Buccino claimed that case law establishes that a CatEx may not be used if there is the potential for “any adverse effect.” She argued that the draft Environmental Directive erroneously uses a significance test.
- Access to information - Participants expressed general dissatisfaction with potential lack of public access to Critical Infrastructure Information (CII). They claimed this exclusion goes beyond the concept of “protected CII,” but even limiting access to protected CII would not be sufficient. They questioned whether CII can meet the test of having been voluntarily submitted because of NEPA’s requirements. They have similar concerns with Sensitive Security Information and Sensitive Homeland Security Information.
They recommended that the final directive simply exempt from disclosure information that is otherwise exempt under the Freedom of Information Act (FOIA).