Revealed: US Moves to Keep Endangered Species Discussions Secret

By Jimmy Tobias, Guardian UK

18 October 18

In a confidential document obtained by the Guardian, officials say releasing records could have a ‘chilling effect’ on their deliberations

he Trump administration is moving to restrict the release of information about its decisions on endangered species, according to a confidential internal document obtained by the Guardian.

It comes as wildlife advocates and scientists accuse the government of attempting to weaken protections for wildlife, including wolves, grizzly bears and sage grouse, while boosting domestic energy production and mining in crucial animal habitat.

In a private September guidance sent to offices around the country, the US Fish and Wildlife Service, or FWS, recommended that employees with its ecological services program – which administers the Endangered Species Act – take a less transparent approach when responding to certain Freedom of Information Act requests from the public.

The guidance contains a list of records that “should be considered for withholding in full or in part” from the public, including draft versions of policies and rules; internal PowerPoint presentations and webinars; deliberative email communications and meeting notes; and others.

Such records should be carefully reviewed and possibly withheld, the guidance suggests, if they might hamper the defense of the government’s decisions in certain court cases and cause “foreseeable harm” to the federal government by sowing “public confusion” or subjecting officials to public scrutiny and thereby creating a “chilling effect” on internal decision-making processes.

The Freedom of Information Act, or Foia, is the United States’ premier open government law, and empowers the public to obtain a wide variety of records from federal agencies, though it does allow agencies to withhold information under certain circumstances, including for national security, privacy, attorney-client privilege and other purposes.

Nate Jones, the director of the Foia Project at the National Security Archive, an open government group affiliated with George Washington University, said that the new FWS guidance is “the first time under the Trump administration that I have seen a paper trail from the government suggesting its employees release less under Foia.”

“It is disturbing,” he added, saying that the guidance is a departure from the previous administration’s official stance that “when in doubt, release information” under Foia.

“This guidance would effectively prevent the American people from standing up for science and endangered species,” said Meg Townsend, the open government staff attorney at the Center for Biological Diversity, a wildlife conservation group. “It would become much more difficult to challenge improper decisions that hurt imperiled animals.”

Townsend added that the new guidance would directly impact the work of her organization. In a recent lawsuit against both FWS and the state department, for instance, the center used internal FWS documents obtained under the Freedom of Information Act to support its argument that the agency had failed to adequately account for the Keystone XL pipeline’s potential harm to critically endangered whooping cranes when it signed off on the controversial project.

The center obtained emails and other records that, it says, helped show that the government did not sufficiently plan how to prevent whooping cranes from colliding with new power lines, a leading cause of death for the species. Under the agency’s new Foia guidance, Townsend said, the center would probably not have obtained some of the documents it relied on to make those arguments in its lawsuit.

In a written statement, a FWS spokesperson said the guidance is meant to ensure consistent application of existing Foia law.

“This guidance was drafted in response to direction from the Department of Justice regarding the production of administrative records in litigation,” the statement said. “This guidance aligns with all existing FOIA requirements and conforms with all applicable laws, rules and regulations.”

The interior department, to which the Fish and Wildlife Service belongs, hopes to change the way it implements the Endangered Species Act. Among other things, the department wants to revoke regulatory language that prohibits FWS officials from considering economic impacts when determining whether to protect a species, which conservationists say will inject business concerns into what should be scientific decisions.

“I think what you are seeing right now from interior department political leadership and by extension Fish and Wildlife Service leadership,” said Yogin Kothari, a staffer at the Union of Concerned Scientists’ Center for Science and Democracy, “is an attempt to leave no stone unturned to undermine the implementation of the Endangered Species Act.”