How the Public Is Losing Its Voice on Public Lands

Shorter comment periods. Fewer public meetings. Lost comments. Federal agencies are making it more difficult for citizens to weigh in on environmental rules and actions.

The听village of Pedro Bay sits on the shores of Alaska鈥檚 Lake Iliamna, a shimmering basin, nearly as large as Rhode Island. Every year millions of sockeye salmon spill into Iliamna from the Kvichak River, the artery that connects the lake with Bristol Bay鈥攈ome to the world鈥檚 largest salmon run, which in 2018 topped听. The epic summer was a boon for Keith Jensen, president of the Pedro Bay Village Council and, like other villagers, a subsistence fisherman who filled his smokehouse for the winter. 鈥淚t鈥檚 hard to explain how important the return of the fish is to people here,鈥 Jensen says. 鈥淲e hope they keep coming back for a long time in the future.鈥

Whether the bounty will return in perpetuity, however, is an open question. In March the U.S. Army Corps of Engineers began scoping an Environmental Impact Statement for Pebble Mine, a proposed copper and gold operation whose toxic tailings, many commercial fishermen and Native tribes fear, could contaminate salmon spawning grounds. Should salmon suffer, the ecosystem that revolves around them may follow鈥攊ncluding brown bears, beluga whales, and the听, including Black-Legged Kittiwakes and Tufted Puffins, that forage in Bristol Bay.听

No wonder, then, that passions around Pebble run high: One survey found that听听of Bristol Bay residents oppose the mine. The Corps thus promised to provide people ample opportunity to submit their feedback, suggestions, and concerns about the project. But when the federal government opened its public comment period on March 29, it initially gave citizens just 30 days to weigh in. And while the Corps also held a series of public meetings to solicit feedback, it failed to provide translators to take Indigenous testimony, didn鈥檛 grant live microphones to pro-fishing communities like Dillingham, and scarcely advertised the gatherings. Some villages in the bay didn鈥檛 get meetings at all.听

鈥淭hey didn鈥檛 take our concerns seriously enough to come to our community,鈥 Jensen says. Although he was able to attend a meeting in another lakeside village called Newhalen, many others from Pedro Bay couldn鈥檛.听鈥淟ots of people were unable to go because they couldn鈥檛 afford it,鈥 he says.听

While this oversight may seem insignificant to outsiders, it reflects an alarming national trend鈥攖he dampening of the public鈥檚 voice in environmental decision-making. In the past 20 months, a host of federal agencies have shortened comment periods, reduced public hearings, and lost or ignored tens of thousands of public comments. To extractive companies that have long complained about onerous regulatory processes, the restrictions have been welcome; to conservationists, they鈥檙e another sign of industry鈥檚 burgeoning influence on environmental policy.听

鈥淭he message that we鈥檙e getting,鈥 says Nada Culver, director of the Wilderness Society鈥檚 BLM Action Center, 鈥渋s that managing public lands for the public is optional.鈥

The Voice of the People

Public comment periods are curious beasts: a standard step in many civic processes, yet often seemingly perfunctory.听Although the听听requires agencies including the Department of the Interior to offer the public a chance to speak up when they propose new rules or actions,听they aren鈥檛 obligated to heed the crowds whose feedback they solicit. Public comments,听according to the , are merely one ingredient in the rule-making recipe, along with 鈥渟cientific data, expert opinions, and facts accumulated.鈥澨

That rather vague prescription gives the government considerable latitude to ignore the听vox populi. 鈥淎gencies may view the comment process as a formality in the rulemaking process,鈥澨 a group of University of Pennsylvania Law School scholars in 2008, 鈥渁t least partly because鈥 many decisions have largely been made by the time agencies solicit public commentary.鈥澨

While all past administrations have treated some comment periods as听pro forma, the current one has seemed to play especially fast and loose with public opinion. In March, for example, the Bureau of Land Management blamed a听听for the disappearance of tens of thousands of comments on to the Greater Sage-Grouse conservation plan. Nearly all of the lost comments favored preserving the plan, which had been hashed out by ranchers, energy companies, land managers, and听environmentalists across 11 Western states over several years. The amendments, proposed in the wake of an听听calling for agencies to revisit regulations that 鈥減otentially burden鈥 domestic energy production, include reopening critical grouse wintering areas to mining鈥攁 step that scientists听听could degrade and destroy sage grouse habitat.

Daly Edmunds, director of policy and outreach for 探花精选 Rockies, says that public comment on the sage-grouse plan has been curtailed in other ways as well:听听about the proposed changes have been infrequent and held in inaccessible locations, and the Interior Department has made scant use of webinars that would enable people to attend sessions remotely. And because the agency plans to discard the scientifically favored landscape-scale approach for one that fractures sage-grouse management into six regions, people have to submit a half-dozen individual comments, rather than filing through a single portal.

鈥淚t鈥檚 not user-friendly at all,鈥 Edmunds says. 鈥淎 lot of individuals across the country took time to engage in the original process, and it鈥檚 disheartening that there鈥檚 pressure to disregard those years of work. What do these plans mean if they can just be remade on a whim?鈥澨

Even with overwhelming participation, some comments seem to be worth more in the administration鈥檚 eyes than others. After President Trump asked that听27 national monuments听be reviewed for potential revocation or downsizing, the public submitted 2.8 million comments鈥攎ore than 99 percent of which opposed altering the monuments. Trump听cut听Bears Ears National Monument in Utah by 83 percent anyway last December.

In his听, Interior Secretary Zinke acknowledged that submissions were 鈥渙verwhelmingly in favor of maintaining existing monuments,鈥 but added that the consensus听鈥渄emonstrated a well-orchestrated national campaign organized by multiple organizations鈥濃 in other words, the environmental groups whose members had emailed form letters through online portals. Meanwhile, the report charitably characterized people who wanted to downsize the monuments as 鈥渓ocal residents,鈥 with no mention of the听out-of-state billionaires and extractive companies听that the campaign to slash Bears Ears.

The Clock Is Ticking听

Just as agencies have discretion over which feedback to heed, they also have considerable latitude in establishing the duration of comment periods. According to , comment periods may be as brief as 30 days, or for particularly complex rules may stretch 180 days or more. When the Obama Administration proposed a rule intended to protect water supplies from fracking-related pollution in 2015, for instance, Interior听granted a comment period.听

Under Trump, comment windows have seemingly trended shorter. Look, for instance, to the San Juan Basin, the vast geologic hollow that stretches from Durango, Colorado, to Gallup, New Mexico. The giant bowl is one of America鈥檚 most intensively drilled regions, perforated by more than听鈥攁pproximately five per square mile. Guided by a 2010 Obama Administration听, the federal Bureau of Land Management, the wing of the Interior Department that manages the basin鈥檚 public lands, had been selling a fresh batch of drilling leases to energy companies once a year. On January 31, 2018, the Trump Administration听听BLM鈥檚 field offices to hold quarterly sales. Overnight, the potential pace of leasing in the San Juans and other regions quadrupled. What鈥檚 more, the new directive gave people just 10 days to protest after a sale was announced.鈥淲e suggest putting the BLM leasing webpage on your 鈥榝avorites,鈥欌 one agency spokesperson听theDurangoHerald.

The order alarmed Jimbo Buickerood, a program manager with the San Juan Citizens Alliance. Fracking within the basin, Buickerood points out, siphons up鈥攁nd potentially pollutes鈥攖he same groundwater that sustains farms and ranches. How, he asks, can a busy farmer analyze and comment on a sale鈥檚 water impacts in scarcely more than a week? 鈥淭hey鈥檙e making it very difficult to keep up and provide input,鈥 says Buickerood.听

The most dramatic transformation of public involvement in the environmental rule-making process, however, may be yet to come. In June, the White House鈥檚 Council on Environmental Quality published听an suggesting possible changes to the National Environmental Policy Act听(NEPA), the law that forces the government to solicit public comment on the impacts of projects like new highways, dams, and ports. Conservative legislators have long tried to adulterate NEPA on the grounds that the law inconveniences industry; to many observers, the notice foreshadows another attack. One line in the notice, which was framed as a series of questions, ominously asks if NEPA could be revised to reduce 鈥渦nnecessary burdens and delays as much as possible,鈥 while another asks if any regulations are 鈥渃urrently obsolete.鈥澨

鈥淭his doesn鈥檛 look like a good-faith attempt to rewrite the law,鈥 says Raul Garcia, senior legislative counsel at听, a nonprofit environmental law organization. 鈥淭his is another attempt to kill it by a thousand cuts.鈥

Some of those cuts have already been inflicted.听In August 2017, Zinke instated a听听setting year-long deadlines and 300-page caps on NEPA-required Environmental Impact Statements for projects like oil and gas leasing plans. 鈥淪horter review time periods means fewer days for public comment, fewer public meetings, fewer opportunities to reach out,鈥 Ani Kame鈥檈uni, the director of legislation and policy at the National Parks Conservation Association,听听when the order was issued.

Garcia is similarly concerned by the rapidity with which the so-called 鈥溾 of environmental law听stands to be rewritten. The Council on Environmental Quality set the comment period on the notice of intent at the bare minimum, 30 days, before public outcry convinced it to听grant .听

鈥淚t鈥檚 particularly ironic that NEPA is the law that gives the public a voice in these processes,鈥 he says, 鈥渂ecause with this process they鈥檙e cutting out the public.鈥

Faith in the Process

Given all these developments, it would be easy to conclude that public comment is, at least for now, futile. But Edmunds, policy director at 探花精选 Rockies,听insists that鈥檚 not so. 鈥淚 don鈥檛 think it鈥檚 a foregone conclusion,鈥 she says of the sage-grouse conservation plan鈥檚 revisions. Although public meetings were few in number this year, attendees showed no signs of fatigue. 鈥淚t took work to get people to know about these meetings, but they showed up,鈥 she says. 鈥淚鈥檓 trying to have faith in the process.鈥

When comment fails, the public does have another option: litigation. Within hours of Trump鈥檚 announcement about slashing the size of Bears Ears National Monument, for instance, a coalition of five Native tribes听听the administration, arguing that the Antiquities Act, the law that grants presidents the ability to create national monuments, does not include the authority to unmake or shrink them. The suits, which were joined by conservation groups and the outdoor company Patagonia, are still pending before the U.S. District Court for the District of Columbia.

In the face of full-throated outcry, this administration has sometimes bent to the will of the populace. Take, for instance, Interior鈥檚 proposal to听entrance fees听at 17 of the country鈥檚 most popular national parks, including Yellowstone, Yosemite, and Grand Canyon, in order to whittle down the National Park Service鈥檚听听maintenance backlog. The plan, which would have more than doubled fees to $70 from $30 for a single vehicle, drew 109,000 comments, most of them against the change. 鈥淎 rate hike of this magnitude,鈥 wrote one commenter, 鈥渨ill price many Americans right out of their own parks.鈥 The government ultimately backtracked,听听to $10听instead.听

Bristol Bay鈥檚 Pebble Mine saga, too, reinforces that public protest can still move the needle. On April 6, after nearly听, including Republican Senator Lisa Murkowski, requested an extension, the Army Corps of Engineers听tripled the comment period to 90 days. Bristol Bay is far from safe鈥攁n environmental review of the mine is听, despite the objections of Alaska Governor Bill Walker. But Pedro Bay鈥檚 Keith Jensen, for one, thinks pragmatism and civic concern could still win out. Maybe.

鈥淚 hope they鈥檙e responsive to the concerns of residents, that they don鈥檛 jeopardize salmon for a short-term gain of minerals,鈥 he says. 鈥淏ut a lot of money鈥檚 involved.鈥