Sen. Frank Lautenberg (D-NJ) has introduced two related chemical facility security bills that would reduce the consequences of a catastrophic accident or terrorist attack at many of the nation’s chemical plants and drinking water and wastewater treatment facilities. The legislation addresses many of the issues raised by a coalition of environmental and openness groups, but it fails to provide the accountability and transparency needed to ensure the government’s chemical security program would actually make facilities and communities safe.

Lautenberg’s legislative package would require facilities to assess available safer technologies that would eliminate the potential for a release of poisonous gases following a disaster. The most dangerous facilities would be required to convert to using the safer technologies – but only if several conditions are met. The bills would also require facilities to involve workers in the formulation of security plans. The package includes S. 3598, the Secure Water Facilities Act, which deals with water facilities, and S. 3599, the Secure Chemical Facilities Act, which covers chemical plants.

The bills build on compromise legislation that the House passed in November 2009, incorporating a number of valuable provisions to drive conversions to safer chemicals and processes, protect workers, and expand the number of covered facilities. However, like the House legislation, the Senate package allows the government to conceal basic regulatory data that the public needs to hold agencies and companies accountable and to ensure the program is working as well as it should.

The Lautenberg bills are competing with another, weaker bill. Sen. Susan Collins (R-ME) introduced a bipartisan bill earlier in 2010 that would simply extend for five years the existing, temporary chemical security program housed at the Department of Homeland Security (DHS). The Collins bill would continue to exempt from the program thousands of chemical and port facilities, including approximately 2,400 water treatment facilities and 400-600 port facilities. Moreover, critics point out that the current program, known as the Chemical Facility Anti-Terrorism Standards (CFATS), prohibits DHS from requiring any specific security measure, including the use of safer and more secure chemical processes that can eliminate catastrophic hazards posed by poison gas. CFATS also operates under such excessive secrecy that the public is unable to evaluate if the program is working and cannot hold the government or facilities accountable.

The new bills from Lautenberg would rectify many of the fatal flaws in the current CFATS program. The bills would also make some progress in wrenching crucial information from the government. However, key information would continue to be vulnerable to the excessive secrecy that now weakens CFATS.

The Senate bills allow the secretary of DHS and the administrator of the EPA (in the case of water facilities) to consider information created under the program as “protected information.” Open government advocates readily agree that certain information, namely the security vulnerability assessments and site security plans, should not be disclosed to the general public. However, the bills allow the agencies to broadly apply the information protections, including to basic regulatory information such as the identities of covered facilities and their compliance status. Government inspection histories and information on violations and penalties at specific facilities could also be concealed. Should DHS and EPA withhold these records, the lack of compliance information would create an immense barrier to public accountability. Some degree of transparency is necessary to ensure the effectiveness of the government program and to assure communities that nearby plants are safe.

The legislation includes another troubling provision that would further restrict the public’s access to vital information. Criminal penalties of up to one year in prison, fines, and, for federal employees, dismissal from their jobs await those who disclose sensitive information. The threat of such punishments has a chilling effect on the sharing of information that may or may not be considered sensitive, even with those who need the information the most, such as first responders. The risk of jail time also puts an even greater burden on life-saving whistleblowers who seek to expose negligence in the program’s implementation.

Contrary to widespread assumptions, secrecy often interferes with security by reducing accountability, reducing the efficiency of security measures, and slowing or denying release of information to those who protect public safety. Excessive secrecy can delay needed actions by creating the false impression that an issue is being dealt with; the reality is that secrecy robs people of the tools to drive positive change and ensure needed fixes are implemented.

Accountability Improvements

Transparency provisions are not completely missing in the Lautenberg bills. The package includes one tool crucial to government accountability: citizen suits against the government. Sensitive information would be protected from unauthorized disclosure in a judicial or administrative proceeding by the use of a protective order from the overseeing judge, background checks for legal counsel seeking access to the information, and guidance on the proper safeguarding of the information, among other restrictions.

Like the House bill, a provision to allow lawsuits against companies for alleged violations was omitted in favor of a “citizen petition” provision that lets individuals petition the government to respond to alleged violations at a facility. However, without basic information such as what facilities are covered by the program or what their compliance status is, the public is hamstrung in its application of the petition process – or any other effort toward accountability.

Other valuable features include a provision requiring an annual report to Congress providing a general overview of the level of compliance with the law, the number of facilities moving into higher or lower “tiers” of risk, and descriptions of the technologies being implemented to reduce the consequences of a terrorist attack. An emergency response capacity study is required to assess what emergency resources would be required to respond to a worst-case disaster scenario at a chemical facility.

The Road Forward

The current CFATS program expires on Oct. 4, but the prospects for any chemical security legislation moving out of the Senate are uncertain. Collins’ bill has bipartisan support in the Senate Homeland Security and Governmental Affairs Committee, but the chemical industry is fighting the Lautenberg bills.

The Senate Energy and Public Works Committee will hold a hearing on the Secure Water Facilities Act on July 28 – right after the homeland security committee marks up and votes on chemical facility legislation. However, there is little time available on the legislative calendar before the midterm elections, making it unclear whether chemical security legislation in any form will see a floor vote in the Senate before November.

Justices ruled 8-1 in a case called Doe V. Reed. Only Justice Clarence Thomas dissented. They heard oral arguments in Washington, D.C., April 28.

The ruling dealt broadly with claims by foes of the new gay rights law that disclosing their names would violate their First Amendment rights. However the justices said the plaintiffs could go back to a lower court to try to get a specific exemption on other grounds – and the chief lawyer for people who signed the Referendum 71 petitions said he would do so.

Washington state officials praised the decision.

“This is a good day for transparency and accountability in elections–not just in Washington but across our country,” Washington Attorney General Rob McKenna said. “We’re pleased the Supreme Court ruled in favor of disclosure, upholding the public’s right to double-check the work of signature gatherers and government — and giving them the ability to learn which voters are directing the state to hold an election on a new law. Citizen legislating is too important to be conducted in secret.”

Secretary of State Sam Reed welcomed the ruling, too. But he said he understood the privacy conncerns “in the Internet era and the desire to participate in our initiative and referendum process without fear of harassment or retaliation.”

“I will continue to speak out for civility in our citizenship and will firmly insist that petition signatures not be used in a threatening or inappropriate way,” Reed added.

The conservative group that tried to block release of the signatures wanted the nation’s high court to uphold a lower court ruling that said signing petitions and referendum is constitutionally protected political speech – which by law is OK to engage in anonymously.

Protect Marriage Washington asked justices to shield the names of the 138,000 people who signed R-71 petitions in hopes of overturning the “everything but marriage” same-sex domestic partner law. In November Washington voters upheld the new statute. Gay rights groups have said they’ll post the petition signers’ names online, and some fear harassment or threats if their names are revealed.

State officials had said there are laws in place to protect people who might be threatened. When people sign petitions or referendums they are acting as legislators, McKenna said, because they are trying to enact or change laws.

Gary Randall of the Faith and Freedom Network said in an e-mail that plaintiffs will go back and seek an exemption for R-71 signers.

“The names cannot be released to the homosexual activists immediately,” Randall wrote. “This matter is not settled yet.”

‘Transparency and accountability’

Writing for the majority, Chief Justice John Roberts said it is vitally important that states be able to ensure that signatures on referendum petitions are authentic.

“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures,” Roberts said. “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”

Justice Clarence Thomas dissented from the court’s opinion.

“In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records severely burdens those rights and chills citizen participation in the referendum process,” Thomas said.

The decision could have far-reaching impacts, not just on the state’s initiative and referendum process, but also for other “open government” laws like the disclosure of who contributes to political campaigns, and how much they give. Legal scholars nationwide followed the case.

In September U.S. District Court Judge Benjamin Settle ruled that releasing the petition names would violate those people’s constitutional rights. Settle said the petition signers were engaging in political speech – which people are allowed to conduct anonymously under the First Amendment.

However in October 9th U.S. Circuit Court of Appeals overruled Settle, saying signing a petition in public is not an anonymous activity and people should recognize that other petition signers could see their names and government officials will be verifying their identity.

The Supreme Court stayed that decision.

One of the attorneys for the group seeking to keep the names private, James Bopp, Jr., had said people have a right to participate in the political system without the government compelling them to identify themselves.

Bopp, the general counsel for the Indiana-based James Madison Center for Free Speech, said it’s appropriate for governments to check and make sure initiative and referendums have enough signatures to qualify for the ballot, but releasing that information to the public would violate people’s rights.

McKenna said Washington has a liberal public disclosure law and that most people in the state want access to records to keep government in check.

Roberts said that the court’s opinion deals with whether disclosure of the names on referendum petitions as a whole violates the First Amendment, not solely the case brought by Protect Marriage Washington.

The intimidation that anti-gay rights supporters fear is not present in other referendum issues like tax policy, revenue, budget or other state law issues, Roberts said. “Voters care about such issues, some quite deeply – but there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case,” he said.

The chief justice added that Protect Marriage Washington could go back to the lower courts and try again on their specific concern in hopes of getting an exemption. “Upholding the law against a broad based challenge does not foreclose a litigant’s success in a narrower one.”

Daniel P. Tokaji, an expert in election law at The Ohio State University Moritz College of Law, said in a statement the State of Washington “has won this battle, but not yet the war.”

“…opponents of Washington’s domestic partnership law can still make the narrower argument that, in this particular case, disclosing the petitions would violate the constitutional rights of those who signed them,” Tokaji said.

Bopp said he would return to the U.S. District Court in Washington state to try to shield the names from the public.

“Supporters of traditional marriage have been subject to death threats, vandalism, and even the loss of their jobs merely for exercising their right to free speech,” he said in a statement. “We are confident that the District Court will agree that these tactics have no place in the discussion of marriage and will prevent the release of the personal information on those who support traditional marriage.”

Both the administration’s and the oil industry’s response to the oil spill in the Gulf of Mexico have drawn criticism over the slow pace of release of information to the public. As congressional investigations and continued public outcry bring attention to the lack of openness, the federal response seems to be slowly moving toward greater transparency.

Confusion about Size of Spill

In the first weeks of the catastrophe, conflicting, inaccurate, or missing information regarding the amount of oil leaking into the Gulf of Mexico created confusion. Despite initial, unofficial estimates of up to 64,000 to 110,000 barrels of oil per day, the U.S. government and BP initially estimated up to 1,000 barrels of oil per day were leaking from the crippled Deepwater Horizon rig. Later, relying on estimates from BP, federal officials raised the estimate to 5,000 barrels per day. Weeks later, the interagency Flow Rate Technical Group, after analyzing data and reviewing undersea video footage of the leak, estimated a range of 11,000 to 25,000 barrels per day. On June 10, another revised estimate placed the range at 25,000 to 30,000 barrels of oil a day.

The task of quantifying the amount of oil gushing out of the broken pipe was made more difficult by BP’s delay in providing scientists a high-definition video of the leak for computer analysis, as well as by the company’s resistance to permit a direct measurement of the flow rate. The National Oceanic and Atmospheric Administration (NOAA), the scientific agency that produced the government’s 5,000 barrel-per-day estimate, refused to provide more detailed information on the mathematics behind its figure.

Getting a clear, accurate understanding of the flow rate of the oil leaking from the destroyed wellhead is important for numerous reasons. Understanding the ecological impacts of the spill depends on a clear picture of the size of the leak. Planning for the prevention of and response to future deep-sea oil spills will be also informed by clear understanding of the characteristics of the Deepwater Horizon spill. In addition to learning about the root causes of the accident, the public and government regulators will need to know the consequences in order to plan for the next catastrophe.

Moreover, the amount of fines faced by BP will likely depend on the amount of oil released into the Gulf. In an interview with The New York Times, Rep. Edward Markey (D-MA), whose House Subcommittee on Energy and the Environment is investigating the spill, noted that under the Oil Pollution Act of 1990, companies face fines of up to $1,000 per barrel spilled, or up to $3,000 per barrel in the case of gross negligence. The need for accurate figures will have a major impact on potential fines. “I think they were hoping they could fix it before they would be forced to allow the world to measure it,” Markey said.

Markey’s subcommittee also compelled BP to release underwater video footage of the leak. In response to the company’s lack of transparency during the spill response, Markey stated, “We cannot trust BP. It’s clear they have been hiding the actual consequences of this spill.”

Media Access Restricted

According to numerous reports, BP and its contractors have turned journalists and photographers away from impacted sites, and local law enforcement, the Coast Guard, and other government officials have also restricted media access to important areas affected by the spill. In addition, BP initially directed its cleanup workers to not speak with the media. The company has since rescinded that order.

Many reporters trying to cover the spill complain that access, even when granted, is strictly controlled by BP or BP contractors, frequently with the complicity of local or federal government officials. Markey commented on BP’s role in restricting media access, “I think they’ve been trying to limit access. It is a company that was not used to transparency. It was not used to having public scrutiny of what it did.”

On June 6, Coast Guard Admiral Thad Allen, the National Incident Commander,announced that he had issued orders granting the media “uninhibited access” to cleanup efforts, except if the access is “a security or safety problem.” According to a BP spokesman, “From the beginning, we have tried to provide information, data and access to government officials, the news media and the public. But we always are striving to enhance and improve our lines of communication and our responsiveness.”

Secret Chemicals

More than 1,262,000 gallons of dispersants have been used on the oil spill to date. Numerous concerns have been raised about the long-term consequences of using such unprecedented quantities of dispersants and the unique conditions of their application under thousands of feet of water. Scientists and environmentalists had been calling for the disclosure of the ingredients to allow the public to analyze the possible human and ecological health impacts and what worker safety measures are needed. The chemical ingredients in the dispersants were kept secret until last week, when the U.S. Environmental Protection Agency (EPA) quietly disclosed the formulas on the agency’s website.

The chemical components had been kept secret because the manufacturer had claimed the information was confidential business information, and therefore, it qualified for special protections by the EPA. Open government advocates had asserted that because of the clear emergency situation and the potential health and safety consequences of keeping the information secret, the EPA had the legal authority to disclose the chemical identities.

Reflecting the concerns about the toxicity of the dispersants, EPA ordered BP to analyze alternative dispersants that were less toxic than the products the company had been using. BP, with help from the Coast Guard, conducted toxicity tests of alternative dispersants, but the results were neither released nor shared with the EPA. The company refused to select an alternative, claiming its current product was the most appropriate for the situation. EPA is now conducting its own toxicity tests of dispersants.

The data gaps related to the use of dispersants is emblematic of a chemicals policy that allows chemicals into commerce before the public has an adequate understanding of the chemical’s hazard. One researcher who has studied dispersants used on oil spillslamented, “There’s such limited funding out there to do this research. Would I would have liked to screen six dispersants? Yes, but there wasn’t money.”

Federal Transparency Efforts

Despite the numerous concerns raised about the quantity, quality, and access to information about the spill, there have been several government efforts to provide the public with data. The EPA created its own website providing water and air quality monitoring data, along with information on the agency’s activities in the Gulf. The interagency command center, known as the Unified Command, provides extensiveonline updates on cleanup activities, as well as live video feeds from underwater remotely operated vehicles and telephone numbers for incident reports from the public.

After several weeks of inadequate transparency from BP, EPA Administrator Lisa Jackson and Department of Homeland Security Secretary Janet Napolitano called on BP to release more data about the spill and increase the company’s transparency.

On June 14, NOAA launched a new website that provides information about the BP oil spill via an interactive map. Described as a “a one-stop shop for detailed near-real-time information about the response to the Deepwater Horizon BP oil spill,” the interactive map includes data from DHS, the Coast Guard, the U.S. Fish and Wildlife Service, EPA, NASA, the U.S. Geological Survey, and the Gulf states.

The Obama administration is also calling for a high level of transparency in the awarding and disbursement of public claims against BP. Adm. Allen of the Coast Guard recently wrote to BP chief executive Tony Hayward demanding greater disclosure of compensation payments. Allen wrote, “We need complete, ongoing transparency into BP’s claims process including detailed information on how claims are being evaluated, how payment amounts are being calculated, and how quickly claims are being processed.”

Copyright 2010 OMB Watch

The report, prepared by the Commerce Inspector General, who sits on the Recovery Board, surveyed 29 federal agencies receiving Recovery Act funding, representing hundreds of Recovery Act programs. Surprisingly, the survey found that 41 percent of the programs in large agencies (defined in this report as the Departments of Defense, Health and Human Services, and the Interior) reported inadequate staffing levels. On top of that, another 45 percent reported that while they were adequately staffed, doing so required taking staff away from non-Recovery Act duties. The other agencies reported similar numbers, with only 24 percent of programs in these agencies saying they have adequate staffing levels with minimal impact on non-Recovery Act work. And this is despite agencies detailing some 22,000 staffers to work on Recovery Act grants and contracts.

The consequence of this understaffing is fairly predictable. Crucial work will not get done, and overall work quality will suffer. The report says that because of the overload “the awarding of contracts and grants is being delayed-as is other work; employees are working overtime; and the oversight and monitoring of awards-especially non?Recovery Act contracts and grants-are expected to decline, as many agencies attempt to implement Recovery Act requirements while carrying out their ongoing programs and operations.” The report also warns that the impact on work quality may be exacerbated by a dearth of qualified contracting personnel in the agencies.

To be clear, the understaffing problem is not due to the reporting requirements of the Recovery Act which we here at OMB Watch are so fond of. The agencies are under enormous political pressure to spend the $275 billion of Recovery Act discretionary funds as fast as possible, thanks to the Obama Administration’s dedication to funding “shovel-ready” projects. But spending money quickly without creating absurd amounts of waste, fraud, and abuse requires large staffs. And thanks to the all the attention that these programs are getting, both from Congress and from the public, agency heads are far more likely to pour resources into Recovery Act projects than other programs, regardless of whether such allocations make sense policy-wise. As the report notes, “to ensure timely completion of Recovery Act work, agencies are prioritizing their Recovery Act workload, hiring additional personnel, and shifting and/or reassigning staff.”

That said, I’m sure the transparency requirements of the Act are at least contributing to the strain on the agencies. For instance, agencies are tasked with helping their grant, loan, and contract recipients understand how to report back on the use of their funds, a somewhat confusing process for those who have never reported before. Responsibilities such as these, while they are incredibly important from a transparency perspective, do take up staff time, since they involve communicating with thousands of recipients scattered across all fifty states. I’m disappointed the Recovery Board’s report does not specifically address this issue.

Unfortunately, at the end of an otherwise great report, the Board whiffs on providing solid recommendations for how to fix the staffing problem. The report simply finishes by saying “we recommend that agencies continue to closely monitor their staffing of both Recovery Act and non?[Recovery Act] work, and make adjustments as necessary to ensure that all contracts and grants are properly awarded and monitored.” Well, if they won’t say it, I will: the agencies need to begin channeling more resources to hire and train contract officers, and Congress needs to increase agency funding by the requisite amount so that the program funding levels are not adversely affected. End of story. You cannot simply dump billions of dollars on already-stretched agencies and expect them to deal with the new funding quickly and easily.

It’s reports like this that make discretionary caps such as the ones proposed in President Obama’s budget patently absurd, since they severely limit the government’s ability to react to new situations.

According to Scheer, the new rule is just another in a long string of initiatives that claim to increase accountability and transparency but have little substance, if they don’t create an exception for the Assembly outright. “The California Legislature is the least transparent legislative body in the entire state of California.” He pointed to exceptions for the Assembly in several of California’s existing transparency rules including the Brown Act, Public Records Act and Proposition 59. All of which have requirements for bodies including city councils or other state offices.

Calls to the Speaker’s office were not returned at the time of this writing, and it’s unclear whether or not the Assembly plans to take up more substantive rule changes in the future.

Given the size of California and the different sets of disclosure requirements for the Assembly versus city/state offices, how these rules are enacted may have an impact for other states looking for a roadmap. Few states have budgets and services on the scale of California, or as much potential upside for lobbyists.

Scheer argues that upside is the exact reason why so much remains opaque at the Assembly level and why it is so important to increase transparency. In his speech, Speaker Perez indicated plans for public hearings on budget issues as well as live broadcasts of budget hearings and deliberations. However, the net effect either of those initiatives or the texting rule will have to be observed over the course of the Speaker’s tenure.

Copyright 2010 CivSource

White House Chief Technology Officer Andrew McLaughlin said Republicans and conservative Tea Party activists should strive to push the administration to make its policies more open.

He also suggested Tea Party activists, who have called for broad changes to the government, could push the GOP to be more aggressive on the issue.

“I would be thrilled to make this a type of political competition … to see who can be more radical in their openness, in their data distribution models … trying to prove to the citizens they can run a better government,” said McLaughlin, a former executive at Google.

He also said he would be “delighted if Republicans started pushing out great open-data models like the Conservatives have in the U.K.”

U.K. Prime Minister Gordon Brown is leading a major push for the release of public data, while the Conservative Party’s David Cameron is running on a platform of transparency and has vowed to publish details of every government contract online.

Republicans have been less emphatic about the need for collaboration between government and citizens through digital tools and online releases of data, McLaughlin said.

The Obama administration has made sharing government data with the public a priority through the launch of Data.gov, which publishes data sets online, and an open-government directive aimed at agencies.

President Barack Obama has directed his administration to make its spending of the $787 billion stimulus bill transparent, and has also made the list of the White House visitors’ log public.

But the Tea Party’s momentum could push Democrats to do even more to increase government transparency and accountability.

“In this country, any protest is part of the game,” McLaughlin said. “The skepticism of government is part of the American character. I’d like to see us put that dynamic to work to be open and participatory.”

McLaughlin made the remarks Friday said at an event held by the think tank NDN and the New Policy Institute.