Open, Accountable Government
Government Transparency in 2011: Moving the Chains
Heading into the holiday season, many Americans think not just of gifts and snowdrifts, but also of another winter tradition: football. As it happens, gridiron analogies are a good way to think about the year's events in the arena of government transparency and right-to-know. In March, OMB Watch published an assessment of President Obama's first two seasons as coach, which showed remarkable progress for Team Transparency. Throughout 2011, Obama and his staff made strong decisions, but there were also a few setbacks along the way.
Open Government Partnership – A New Playbook
The launch of the Open Government Partnership (OGP) on Sept. 20 marked a new era for open government in the United States and abroad. At the launch, the U.S. and seven other countries released national plans to strengthen transparency and accountability and endorsed a joint Open Government Declaration outlining their principles. More than 40 additional countries have also joined the partnership and will release their own plans in 2012. President Obama envisioned the partnership in his 2010 address to the United Nations.
The U.S. government's plan, which was met with praise from the open government community, committed to action on 26 open government issues. The administration has already begun implementing several commitments, such as joining the Extractive Industries Transparency Initiative, an international effort to publish more information on government revenue from companies extracting natural resources, and the International Aid Transparency Initiative, an effort to publish more information about foreign aid to developing countries. The U.S. also began to publish the source code to Data.gov, solicited public ideas on improving federal websites, issued a presidential memorandum on improving records management, and began soliciting feedback on best practices for public participation. Work on these and other commitments are expected to continue in 2012 with a status report on implementation late in the year.
Toxics Release Inventory – Establishing the Run
The U.S. Environmental Protection Agency (EPA) continued to make progress on the Toxics Release Inventory (TRI) in 2011, not with a major advance but with several efforts to address specific needs and improvements. The agency established requirements for reporting to be done electronically, which will speed up processing of the data and reduce errors. The agency also announced that for the first time in over a decade, it is planning to expand the industry sectors covered by TRI. The agency is considering six sectors: Iron Ore Mining, Phosphate Mining, Municipal Waste Incineration, Industrial Dry Cleaning, Petroleum Bulk Storage, and Steam-Only Production from Fossil Fuels, but could add more based on online discussions currently underway. The agency expects to release a proposed rule in late 2012 and finalize the rule by late 2013.
In another TRI move, the EPA withdrew from consideration a final rule that would have clarified reporting requirements for off-gassing of chemicals from wood products. Wood treatment facilities have incorrectly thought that releases of chemicals such as ammonia, arsenic, and benzene from recently treated wood were excused from reporting under a provision that exempted natural deterioration of materials. The inability to finalize this rule, which had been in development for years, means that communities near such facilities will continue to receive incomplete information on the toxic releases in their area.
Scientific Integrity – Delay of Game
The Obama administration's efforts to protect scientific integrity made slow progress in 2011. In contrast to the George W. Bush administration's political manipulation and suppression of science, President Obama issued a memo embracing scientific integrity shortly after taking office. However, the process of implementing the principles of scientific integrity across the executive branch has been slow and uncertain.
In December 2010, the White House Office of Science and Technology Policy (OSTP) issued its overdue guidance to agencies on implementing the memo. That guidance, however, offered little perspective on the details of agency expectations or timelines. Throughout 2011, OSTP occasionally reported on progress toward implementation, but access to the actual policies was rare and opportunities for public input even rarer. The few policies available for public inspection were of vastly different form, scope, and quality. For instance, the EPA's draft policy was widely criticized as weak and vague while the National Oceanic and Atmospheric Administration's (NOAA) draft policy was praised as thoughtful and detailed. On Dec. 7, NOAA finalized its draft policy, incorporating some revisions to further strengthen the policy. OSTP eventually directed agencies to submit their draft final policies for review by Dec. 17 – and encouraged agencies to publish their proposals for comment before finalizing them – but to date, few additional policies have emerged.
Environmental Right-to-Know Recommendations – Sideline Coaches Send in New Plays
On May 10, on behalf of more than 100 public interest organizations, OMB Watch presented a set of detailed environmental right-to-know recommendations to the Obama administration. The recommendations, included in the report titled An Agenda to Strengthen Our Right to Know: Empowering Citizens with Environmental, Health, and Safety Information, aim to expand access to environmental information, equip citizens with data about their environmental health, and empower Americans to protect themselves, their families, and their communities from toxic pollution.
The report, the result of a year-long collaborative effort, urged the administration to address the gaps in environmental information and offered detailed proposals for changes in specific agency activities. For example, there were several recommendations on how agencies could improve their Freedom of Information Act (FOIA) policies. Other recommendations, including creating new public affairs office policies, are more general, calling on the federal government to implement broader changes to reverse years of secrecy and isolation from the public. Woven throughout the report are three key priorities: environmental justice must always be considered; health risks from chemicals need to be tracked and communicated to the public; and public participation has to start with the government.
The report also served as the basis for demands to the government under another campaign. In preparation for the upcoming United Nations (UN) Conference on Sustainable Development, to be held in Rio de Janeiro, Brazil, in June 2012, an international public interest movement, called the 3D Campaign, was launched to urge countries to commit to improving environmental policy. The three demands for the U.S. focused on improving access to environmental and public health information and public participation in environmental policymaking.
Controlled Unclassified Information – Long Forward Pass
The government made considerable progress implementing President Obama's executive order to rein in pseudo-secrecy and improve information sharing. In June, the National Archives and Records Administration (NARA) released initial guidance on implementing Obama's 2010 order on controlled unclassified information (CUI). The guidance laid the foundation for a system of categories of information that are unclassified but require specific safeguarding or dissemination controls. Under the guidance, NARA's public registry of CUI categories will be the sole basis for safeguarding or disseminating controls on unclassified information, as opposed to the ad hoc former system that had little oversight or transparency. However, not everyone is happy about the new system: the Department of Defense (DOD) proposed a rule to preserve many of its vague legacy categories under the guise of a new CUI category. Open government groups have voiced strong opposition to the proposal, which DOD has not finalized yet.
In November, NARA published the initial registry of approved categories and their legal authority. While CUI categories indicate how information should be managed, they do not impose additional restrictions on public access: in late November, NARA and the Department of Justice issued a memo reiterating that CUI labels do not determine disclosure decisions under the Freedom of Information Act (FOIA). In 2012, NARA is expected to issue further guidance on several CUI topics, such as labeling information and when designations expire. In addition, NARA will review agencies' proposed implementation plans and determine deadlines for the new system to begin operation.
Fracking Disclosure – Special Teams
Amid substantial investments in U.S. natural gas and oil production, initiatives to require the disclosure of chemicals used in hydraulic fracturing, or fracking, became a sticking point this year at both the federal and state levels. At the federal level, the traditional plays were stymied. A loophole in the Energy Policy Act of 2005 exempted fracking from the Safe Drinking Water Act, which allows companies to keep secret what chemicals they use. Congressional Democrats have sought to counter that law with new bills that would mandate full disclosure of fracking chemicals. However, the legislation that was introduced in both the House and the Senate has not moved in either chamber.
The EPA has begun studies on the practices and environmental impacts of fracking, particularly affecting water contamination, but results are not expected until late 2012. Recent recommendations by the Department of Energy (DOE) include mandatory disclosure of chemicals used in fracking. The U.S. Interior Department is also considering regulations for natural gas and oil production on federal lands, including requiring disclosure of the chemicals used.
Absent federal oversight, states like Texas and Michigan have moved toward establishing state-level requirements for greater disclosure. A bill requiring disclosure of all fracking chemicals passed the Texas Senate after an attempt that would delay part of its implementation was defeated. The Michigan Department of Environmental Quality announced new rules that will document water use and publish some information about the chemicals used in the fracking process. Other areas are also considering action on fracking, including the Delaware River Basin Commission (DRBC), which will decide in 2012 whether to allow fracking at 15,000 to 18,000 gas wells without a full environmental impact analysis.
Funding for Transparency Programs – Quarterback Sacked
In 2011, Congress' focus turned toward deep cuts in federal spending, and adequate funding became a question for all government activities, including programs that support transparency. Notably under the gun was the Electronic Government Fund, or E-Gov Fund, which supports the development of government-wide systems such as USAspending.gov and Data.gov. The spending bill passed in April slashed the fund by 75 percent, leading to the cancellation and delay of transparency projects. Open government groups rallied to reverse the cuts as congressional leaders spoke out in opposition. Congress has yet to finalize its spending bills for the next fiscal year, but a House plan would partially restore the fund while a Senate proposal would deepen the cuts. Without restored funding, the E-Gov Fund's important transparency projects – and the savings they yield – may be stymied.
UPDATE (12/15/11 10:55 a.m. EST): Late on Dec. 14, the House filed a new version of a "megabus" funding bill that includes provisions for the E-Gov Fund. There is a slight increase for the fund, to $12.4 million, but this is still far short of what is needed to support crucial online transparency projects for the federal government. Watch for additional updates here and on The Fine Print, as this situation is highly fluid.
Toxic Substances Control Act Transparency – Recovered Fumble
The Toxic Substances Control Act of 1976 (TSCA), the nation's primary and outdated chemical safety law, has proved itself inadequate in regulating chemicals and ensuring that products are safe. Despite the strong need for major reform and ongoing calls to fix the program, TSCA reform legislation remains held up in Congress. However, EPA has taken some action with its limited authority under the law to increase transparency. The agency began disclosing more information about hazardous chemicals while challenging industry claims that information should be concealed as trade secrets.
For instance, the agency began reviewing confidential business information (CBI) claims in new and existing health and safety studies that companies submitted to the EPA under TSCA. Since 2009, the agency has released the names of 577 chemicals, previously claimed as confidential by industry, and made accessible to the public more than 1,000 health and safety studies. In August, the EPA also strengthened TSCA’s chemical reporting rule. These new requirements will provide Americans with the information they deserve about toxic chemicals affecting their communities.
Records Management – Kick-off
When the federal government produces an average of over 475 million pages of information each year, effective records management is not just important to open government – it is essential. If information hasn't been preserved or can't be located, then the public's right to know is thwarted. Unfortunately, this is an issue that has gone relatively unaddressed for far too long. At the end of November, a Presidential Memorandum sought to correct this oversight and kicked off an effort for federal agencies to create new records management systems that take advantage of digital technologies while protecting the public’s right to information about the actions and decisions of federal agencies. The memo requires each agency to report on its current records management and to consult with the public about improvements. Then a team of senior officials from the Office of Management and Budget, the National Archives and Records Administration, and the Department of Justice will develop a records management directive for the executive branch overall. In December, the National Archivist issued a memorandum to agencies clarifying their reporting requirements and explaining how the agency materials will be used to develop a modern framework for managing government records.
Greenhouse Gas Data – In the Huddle
The EPA’s GHG Reporting Program requires facilities to annually report greenhouse gas (GHG) emissions data, and in August, the program launched an electronic tool to collect and later make public company GHG data. The new electronic tool will enable 28 industrial sectors – equal to approximately 7,000 large industrial GHG emitters and suppliers – to submit their emissions reports to the EPA via the Internet. EPA will make non-confidential GHG data publicly available by the end of 2011. However, the agency has allowed long deferral periods – until 2013 and 2015 – before releasing reports on certain data elements used to calculate emissions. This is unfortunate.
Public reporting of pollution has proven a powerful tool in fostering public awareness of environmental problems and generating significant reductions in emissions. When the GHG tool produces public data, we hope it will also provide tools that allow easy analysis, performance comparisons, and trackable industry averages. Properly presented, the data could help decrease GHG pollution, increase efficiency, and save money.