October 13, 2023
To: David Crane
Office of Clean Energy Demonstrations
U.S. Department of Energy
1000 Independence Ave SW
Washington, D.C. 20585
The undersigned groups regretfully write to express our strong opposition to the Department of Energy (DOE) Office of Clean Energy Demonstrations (OCED) funding the first phase of California’s hydrogen hub application, the Alliance for Reliable Clean Hydrogen Energy Systems (ARCHES).
Our groups represent the low-income communities of color who stand to be most impacted by hydrogen development in California. We have a decades-long history of deep organizing in the communities we serve, representing many tens of thousands of California residents. Our Alliance is the largest coordinated environmental justice formation in the state of California, and one of the largest in the country.
We are deeply disappointed in ARCHES leadership, who, throughout the application development process, have disregarded environmental justice concerns and the need for inclusive public process. This has resulted in an application that has received no vetting from community-based environmental justice organizations, nor the community members they represent. In general, community engagement efforts undertaken by ARCHES leadership thus far have failed to achieve any form of meaningful consultation and feedback with and from impacted communities.
Subsequently, we urge OCED to withhold any additional funding for the ARCHES proposal until and unless they rapidly reverse course in the key areas below. to conduct negotiations with ARCHES during the selection phase of the award process, and to not consider ARCHES for award negotiations until and unless they rapidly reverse course in the key areas below.
- Require ARCHES to Eliminate Non-disclosure Agreement Requirements
ARCHES leadership has primarily stifled community participation in the proposal process by requiring that any entity seeking to learn any details of the proposal sign a non-disclosure agreement (NDA). The NDA prohibited signatories from discussing proposal details with external parties, had a strict, non- time-limited non-disparagement clause, and steep financial penalties for violation. Similarly, ARCHES requested signatures to a Memorandum of Commitment, which would be used to indicate endorsement of the project. Signing the NDA or MOC is required in order to participate in “working group” conversations and gain access to any substantive information about the proposal.
Between October 2022 and July 2023, our organizations and our external allies negotiated with ARCHES leadership to come to a mutually agreeable solution to ARCHES’ NDA requirement. After extensive iteration, ARCHES released an NDA in July 2023 that removed the harsh non-disparagement clause present in earlier versions, allowed signatories to share information with community members, but still included monetary penalties. This most recent version would still be incredibly harmful to any grassroots organization and place them under significant legal liability.
During the 10 months that ARCHES spent in negotiations with us, none of our organizations were able to learn more about the proposal, and the application progressed without adequate input from impacted California residents. We see the NDA negotiations and ARCHES’ unwillingness to amend early versions until after the application submission as a delay tactic that allowed ARCHES to move forward without needing to account for and include impacted communities in decision-making.
Although ARCHES may indicate support from community groups in their Community Benefits Plan, we would encourage OCED to consider that prior to mid-July 2023, any group that signed this NDA was legally prohibited from communicating any information about ARCHES externally and was subject to a strict non-disparagement clause, lest they incur serious financial liability. This means that none of these groups were able to share information about ARCHES with the community members they represent, which means that those communities remain in the dark about how ARCHES could impact them.
For groups who signed in the short period since a new NDA was released, those groups still missed out on any chance to influence proposal formation from October 2022-July 2023. While we acknowledge that there are groups supporting ARCHES without signing the NDA, it remains true that they, too, have incomplete access to information and any claims that they vetted the proposal with the communities they serve would be overstated at best.
NDAs that are required for participation in what should be a public process, especially when competing for public dollars, are fundamentally antithetical to the principles underlying environmental justice. Grassroots environmental justice organizations are directly accountable to the community members they serve and represent, and the initial NDAs proposed by ARCHES prohibited any signatory from sharing information with impacted communities. For these reasons, none of our organizations are able to sign the NDA in any version that precludes us from sharing project information with frontline residents, that precludes public opposition to projects, or includes financial penalties for NDA violations.
We ask that DOE negotiate with ARCHES to eliminate their NDA requirement, and allow full, inclusive public process. Only then should DOE consider ARCHES eligible to meet the Community Benefits Plan selection criteria outlined in the FOA for hydrogen hub funding.
- Require ARCHES to Amend Governance Structure to Maximize Opportunities for Impacted Community Representation
ARCHES proposed governance structure consists of a total of 16 Board seats, 11 of which will be voting members, and 5 of which will be non-voting representatives. Only 1 of the 11 proposed voting Board seats will be allocated to impacted communities, and an additional seat will be allocated to Tribal communities.
Since fall 2022, environmental justice and environmental groups have attempted to negotiate with ARCHES to build more seats for community representation. Ultimately, negotiations bore no fruit and any efforts to address the governance structure in meetings with ARCHES were met with antagonism by ARCHES representatives. This resulted in our groups and allies submitting a letter to ARCHES with recommendations for governing structure on January 30th, 2023. Our primary suggestions are below:
- Institute open meetings with access to information and specific decision-making processes for the board structure development, and overall process and project selection transparency.
- Expand the Board to add two or more EJ/CBO seats and one or more Public Health experts/representatives, these seats should represent the geographic diversity of the state of California. For example, if one EJ/Local CBO seat is held by a representative from an urban community, another should be held by a EJ/Local CBO representative from a rural community.
- Consolidate the three Hydrogen industry sectors to one seat.
- California state seat to be rotated with different agencies (i.e. CEC, CPUC, etc.)
- Appropriate compensation for advisory group members and EJ/CBO board members.
ARCHES current proposed board structure is dominated by representatives from groups who stand to gain significant financial benefit from hydrogen’s rapid proliferation in the California economy even if hydrogen development harms environmental justice communities. It is imperative then, that the ARCHES board structure be constructed to allow impacted communities real decision-making authority, lest projects be developed without adequate regard for public health and safety.
To this end, we ask that OCED require ARCHES to amend their governance structure in accordance with our above recommendations.
- Enforce Community Engagement Best Practices
In October 2022, environmental and environmental justice groups shared a set of hydrogen priorities and requested information from ARCHES on their plans to conduct community engagement. ARCHES leadership delayed providing any information on their plans until the initial concept paper had already been submitted to DOE, meaning that there had been no involvement of impacted residents in the formation of the concept paper.
Since then, almost every effort made by environmental and environmental justice groups to meet with ARCHES has been spurned or delayed, delaying or prohibiting public input while the proposal continued to advance through the hydrogen hub application process.
Instead of actually involving our groups in decision-making, ARCHES attempts to foster community engagement consisted of weekly “Community Engagement Forum” meetings. During these meetings, environmental justice groups were met with hostility, and any expression of dissent or disagreement with ARCHES leadership was immediately and forcefully shut down. The ARCHES application may also reference results of a community engagement survey submitted to participants of these meetings. We view this survey as a meaningless tool to extract information from environmental justice groups without legitimate decision-making and feedback opportunities.
After many months of attending these meetings, and recognizing the impending April 7th hydrogen hub application submission deadline, environmental and EJ groups coalesced remaining requests and priorities for community engagement into a letter to ARCHES leadership. These requests for inclusion remain unmet.
Even after the application submission, community meetings continued to be ineffective in addressing requests by environmental justice groups for transparency and improved facilitation. These meetings still provide no substantive updates on the ARCHES proposal, have no opportunity for public feedback on the actual proposal, and are often attended by a small number of people, few of whom represent impacted residents. These bi-weekly meetings do not follow best practices for ensuring inclusive, justice-based conversations. There is no direct line of communication between participants and ARCHES decision-makers, and all information passes through a contracted consulting firm to ARCHES leadership.
These meetings are intended to take the place of formal participation in ARCHES Advisory Committee meetings, which are reserved for groups who have signed the ARCHES NDA. They should not be considered by DOE to satisfy any community engagement requirements. At this point, the information we have been provided to share with communities is confined to a 2-pager info sheet with very vague, top-line information about ARCHES. What we have managed to glean from this is that ARCHES intends to combust hydrogen in gas-fired power plants as part of their proposal. This intention alone, which our groups strongly oppose, should indicate how out of touch ARCHES is with community needs and wants.
We ask that DOE disqualify any mention of these meetings in ARCHES’ application from satisfying any portion of the Community Benefits Plan selection criteria. We also ask that DOE work with our groups and negotiate with ARCHES to institute best practices for community outreach and engagement.
In conclusion, while our groups have participated in every public venue offered by ARCHES leadership short of signing the NDA, material details of the project still remain opaque and unavailable to us. ARCHES has willfully erected insurmountable barriers to public engagement for a large portion of California’s community-based organizations, and we hope that DOE and OCED will do right by frontline residents we represent by holding ARCHES accountable to real community engagement standards in the same way that we are accountable to impacted communities.
Ari Eisenstadt, Energy Equity Manager
California Environmental Justice Alliance
Faraz Rizvi, Policy & Campaign Manager
Asian Pacific Environmental Network
Bahram Fazeli, Director of Research & Policy
Communities for a Better Environment
Marven Norman, Policy Coordinator
Center for Community Action and Environmental Justice
Kayla Karimi, Staff Attorney
Center on Race, Poverty, and the Environment
Jamie Katz, Staff Attorney
Leadership Counsel for Justice and Accountability
Alex Jasset, Energy Justice Director
Physicians for Social Responsibility – Los Angeles