The monstrous and tragic events of September 11, 2001 continue to reverberate throughout public policy. Environmental policy is no exception. This was the subject of the Environmental Law Section panel, “Democracies Die Beyond Closed Doors: Secrecy in the Age of Terrorism,” at the Association of American Law Schools annual meeting. Moderator and University of Maryland law professor Rena Steinzor opened the session noting that concerns about terrorism and homeland security has both pushed environmental policy to the back-burner and heightened Washington, D.C.’s natural tendency toward secrecy. Environmentalist efforts to require disclosure of information about environmental risks have been set back substantially due to security concerns. More broadly, courts and the public are arguably more sympathetic to arguments about the need for executive branch secrecy. To given one example, Professor Steinzor noted a proposal to withhold disclosure of critical infrastructure information from Department of Homeland Security environmental impact statements.

Professor David Vladeck of Georgetown University Law Center, who formerly litigated Freedom of Information Act and regulatory policy issues for Public Citizen, opened claiming that the rise of “secrecy in government” will be one of the Bush Administration’s most important and enduring legacies. Vladeck suggested that he Bush White House seems to believe that “secrecy makes us safer” and, more significantly, this is arguably the first administration to argue openly that reducing openness in government is affirmatively desirable policy. For example, Attorney General John Ashcroft adopted a more aggressive stance toward litigating FOIA exemptions. Under Janet Reno, the Justice Department would only defend agencies that could demonstrate information clearly covered by a FOIA exemption and the agency could demonstrate that public disclosure would produce a demonstrable harm. Under the Bush Administration, however, the Justice Department will defend any plausible assertion of a FOIA exemption. The result, Vladeck argued, that information that would have been readily disclosed under prior administrations is now withheld as a matter of course – and these withholdings are vigorously defended in court.

Vladeck also noted that the Department of Homeland Security has also promulgated broad regulations to prevent the public release of critical infrastructure information. Another change has been a broadening of agency authority to classify documents. Today, for example, the Department of Agriculture and Environmental Protection Agency may classify information. Moreover, some information that is already in the public domain may be reclassified, despite prior disclosure. This is a significant change from the traditional treatment of only treating as classified that information that was “born classified,” and raises serious concerns because it is a crime to knowingly publish classified information. Similarly, the Nuclear Regulatory Commission, which cannot classify information, can prevent disclosure of information designated “safeguards information.” This “already troubling system,” Vladeck observed, has become worse with the NRC’s assertion that already public information may be so designated.

Another Bush Administration change was to announce in 2002 that the executive branch would only respond to information requests from committee chairs, effectively shutting off minority members of Congress (i.e. Democrats) from access to federal agency information. Under the Clinton Administration, Vladeck noted, the official policy was to respond to information requests from ranking members on congressional committees. [Comment: Many Congressional Republicans would argue that the Clinton Administration was less than forthcoming to information requests when Republicans were in the minority. Moreover, both the Interior Department and EPA withheld information from federal district courts in litigation. Thus, I would suggest that the impulse toward secrecy and withholding information is nonpartisan.]

Vladeck closed with a few comments on the Vice President’s Energy Task Force litigation. According to Vladeck, the federal government has gone to extraordinary lengths to avoid disclose the extent to which energy industry officials participated in, and perhaps even drafted, portions of the Administration’s energy policy. While Vladeck accepts that there could be an argument that the Clinton Administration was too inclined toward disclosure – albeit an argument that he does not accept – he thinks that, by any measure, the Administration has overcompensated with its efforts to increase government secrecy.

Christopher Schmitt, who authored the article “Keeping Secrets” in the December 22, 2003 issue of U.S. News & World Report, sought to provide concrete examples of how the Bush Administration has “dropped a shroud of secrecy” over government operations. Not all of the increased secrecy is a pure result of September 11, however. Rather, Schmitt argued, many of the recent policies to restrict information disclosure were proposed prior to September 11, although increased security concerns have facilitated the policy changes. Finally, Schmitt suggested that there is no dichotomy between information disclosure and security.

To illustrate the changes in policy, Schmitt noted that the Bush Administration eliminated the long-standing policy of erring on the side of information disclosure, and provided example of blacked out information in FOIA requests that raised no national security concerns whatsoever. Rather, some of the blacked out information consisted nothing more than embarrassing information. In another case, an agency withheld information about FOIA disclosure policy in response to a FOIA request. In isolation, many of the new refusals to disclose information are insignificant or amusing, Schmitt argued, but together they represent a troubling increase in government secrecy. With regard to facility risks, Schmitt expressed the view that a given facility “is either dangerous or it’s not,” and if it is dangerous the answer is not to prevent disclosure (or even to stop facilitating disclosure) but to eliminate the danger. [Comment: This is not a particularly nuanced or sophisticated view of environmental risk, and not particularly helpful in developing sensible policy.]

Providing a somewhat contrary view was Angela Logomasini, Director of Risk and Environmental Policy of the Competitive Enterprise Institute. Logomasini agreed that, as a general principle, information disclosure by government is a good thing and is essential for democracy. In the environmental context, however, Logomasini noted that the federal government requires the generation and disclosure of certain information about various facilities and environmental threats and that there are some categories of such information for which government should not mandate disclosure. “This is the one category in which we’ve gone too far,” she suggested.

Logomasini offered three principles for government information policy. First, it should ensure that information collected is meaningful, accurate and useful. Second, the government should be mindful of privacy interests in information that the government collects. Third, information disclosure policy should maximize the protection of public health and safety. These principles are particularly relevant where the government requires the generation, collection and disclosure of information that could pose a security risk.

Logomasini focused on Clean Air Act provisions that require the collection and disclosure of information about industrial facilities and worst-case scenario projections at such facilities, as is required under the Clean Air Act. Even before September 11, the FBI and the International Association of Fire Chiefs (IAFC) warned against mandating disclosure of such information on the internet as had been proposed. Congress enacted legislative reforms to limit such disclosure on the internet in 1999, but the EPA posted much of this information nonetheless in 2000. Although this information has since been removed from government sites on the internet, environmental groups such as Greenpeace had collected the information and posted it on private sites. Today, this information remains available in public reading rooms throughout the country, and the summaries of the individual facility reports remain on private databases accessible through the internet.

The IAFC maintains that such information is important and useful for first responders and local officials, but is not suitable for public disclosure on the internet. The risks of such disclosure, IAFC officials suggest, are greater than the public benefits. Logomasini argued that much of the information disclosed does not provide useful information about actual risks posed by facilities. The disclosure primarily serves to scare communities about local facilities and, at worse, increases risks by providing information to those who might seek to sabotage such facilities or otherwise engage in domestic terrorism. A better information policy would focus on the disclosure of truly useful information to first responders and local communities. [For those interested, I’ve also written on this subject here and here.]

General Comments:Much of the discussion conflated the increased classification of information, which effectively bars any public disclosure of such information, from changes in policies mandating information dissemination. There is a difference between opposing government policies that prevent – and perhaps even criminalize – the disclosure of certain information and government policies that foster or even mandate the uncontrolled and unmonitored dissemination of information that can be used to harm the public. It seems hard to quarrel with the idea that, all else equal, more information disclosure is better, but also that there is some information that should be tightly held, or at least not broadly disseminated. Unless policy weighs the risks of secrecy against the risks of disclosure, there is no hope of producing a sensible policy result.