Epilogue to Contractor FOIA Secrecy Warning

In government projects that impact the environment, it is vital the the public have access to the relevant environmental information before the project begins, even when that information is not a record in the government's files, but information held by the government's contractor.

In 2014, I wrote a paper warning about the negative impacts of government contracting on FOIA transparency, especially in projects that impact the environment. I argued that, when government duties are outsourced to non-governmental entities, people have less access to important environmental information. The lack of access to information leaves communities powerless to participate in environmental decision making, leaving them with only post-hoc remedies after the pollution has already happened. 

The introduction of that paper, "Sunshine for Sale: Environmental Contractors and the Freedom of Information Act", focuses on a 2013 contract between the U.S. Army Corps of Engineers and Great Lakes Dredge & Dock to deepen the Port of Miami so that bigger ships can come through. This contract was the paper's example of a project that had not yet begun, one in which the public could still participate in if only environmental information about the project was available to them. 

Great Lakes is America's largest dredging corporation, with a history of leaving environmental destruction in the wake of its projects. Great Lakes projects have destroyed reefs, threatened sea animal populations, and had catastrophic effects on marine flora and fauna. In 2002, Great Lakes had to pay almost $1 million for destroying the Florida Bay ecosystem. Soon after, Great Lakes reached a $20,000 settlement with the EPA  when its dredged waste spilled from barges, damaging a marine sanctuary in California’s Richmond Harbor.

Unfortunately, the Great Lakes-led Miami Port dredging project described in "Sunshine for Sale" is not faring better for the aquatic environment involved. With a mere 35% of the project completed Great Lakes is smothering coral reefs and damaging sea life, spreading layers of silt and clay across the sea bed. Over 1,000 healthy corals have already been displaced.

A Miami scientist  working to save corals  from the dredging project.

A Miami scientist working to save corals from the dredging project.

The Miami Herald reported that the contractor's work violates state permits, churning up too much sediment and having a “profound effect” on the environment. State divers noticed that fringes of some coral colonies were dying because of the dredging project, and that the artificial reefs created to remediate environmental damage were also being destroyed by Great Lakes' dredging methods. Inspectors prescribed a quick reversal of Great Lakes' practices in the Port to minimize permanent damage to the aquatic habitat. 

Now that the project is started, however, changing to a more environmentally friendly course is difficult. Reuters reported Susan Jackson, an Army Corps spokesperson, estimated that stopping the project midway would require taxpayers to pay $50,000 to $100,000 a day to keep the dredge on standby. Jackson said, "...that's not happening."

The Biscayne Bay Waterkeepers threatened to sue the Army Corps and Great Lakes unless they immediately change their environmentally damaging practices in the Port, dropping the injunction (but not a concurrent lawsuit filed under the Endangered Species Act) when the Army Corps and Great Lakes promised to improve their remedial efforts. The Waterkeepers' Executive Director, Rachel Silverstein, concluded  "...there is a way this project can be done better and that’s simply not being done right now.”

Now that the project is already underway, it is much more difficult for interested parties to intervene on behalf of environmental welfare to suggest how the project could "be done better." Threatening to sue the government and its contractors may be the only real method for change - As the judge in the Waterkeepers' case said to the Army Corps and Great Lakes of the sudden desire to decrease the environmental impacts of their project, "You didn't do this until they filed the suit,” the judge said. “It's very coincidental.”

The post-hoc environmental lawsuit, an action that can only be taken when the environmental damage is already happening, costs money and takes time. One has to wonder whether circumstances would be different in the Miami Port project, and other projects similarly conducted by government contractors, if the public had greater access to the planning and oversight documents held by those non-government entities that carry out the government's work. 

With the tight-lipped private contractors (Great Lakes refused to provide public comment to the Miami Herald reporters writing about the environmental issues in their project), and poor monitoring of contractor projects (State inspectors confirmed that the monitoring practices in place in the Miami Port project are not working), the need for public information access is clear. In order to improve environmental outcomes in government projects, the public must have access to information about the projects, even the information held by the government contractors, before the project starts and the damage is irreversible. 

As for the Miami Port project, the Miami Herald quoted Dan Kipnis, one of the plaintiffs in the Waterkeeper lawsuit, on the state of the project already underway:

“If the Corps and [Great Lakes Dredge & Dock] can stall, hem and haw long enough, they will get the project done” ...  “We will be left holding the bag as Miami-Dade County ultimately is responsible for the damages and remediation as per the contact agreement between PortMiami and the Corps. Something is definitely wrong with this system.”