How the Public Is Losing Its Voice on Public Lands

The village of Pedro Bay sits on the shores of Alaska’s 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—home to the world’s largest salmon run, which in 2018 topped 60 million fish. 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. “It’s hard to explain how important the return of the fish is to people here,” Jensen says. “We hope they keep coming back for a long time in the future.”

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—including brown bears, beluga whales, and the 15 million seabirds, including Black-Legged Kittiwakes and Tufted Puffins, that forage in Bristol Bay. 

No wonder, then, that passions around Pebble run high: One survey found that 75 percent 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’t grant live microphones to pro-fishing communities like Dillingham, and scarcely advertised the gatherings. Some villages in the bay didn’t get meetings at all. 

“They didn’t take our concerns seriously enough to come to our community,” Jensen says. Although he was able to attend a meeting in another lakeside village called Newhalen, many others from Pedro Bay couldn’t. “Lots of people were unable to go because they couldn’t afford it,” he says. 

While this oversight may seem insignificant to outsiders, it reflects an alarming national trend—the dampening of the public’s 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’re another sign of industry’s burgeoning influence on environmental policy. 

“The message that we’re getting,” says Nada Culver, director of the Wilderness Society’s BLM Action Center, “is that managing public lands for the public is optional.”

The Voice of the People

Public comment periods are curious beasts: a standard step in many civic processes, yet often seemingly perfunctory. Although the Administrative Procedure Act requires agencies including the Department of the Interior to offer the public a chance to speak up when they propose new rules or actions, they aren’t obligated to heed the crowds whose feedback they solicit. Public comments, according to the federal register, are merely one ingredient in the rule-making recipe, along with “scientific data, expert opinions, and facts accumulated.” 

That rather vague prescription gives the government considerable latitude to ignore the vox populi. “Agencies may view the comment process as a formality in the rulemaking process,” wrote a group of University of Pennsylvania Law School scholars in 2008, “at least partly because… many decisions have largely been made by the time agencies solicit public commentary.” 

While all past administrations have treated some comment periods as 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 “breakdown in technology” for the disappearance of tens of thousands of comments on proposed revisions 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 environmentalists across 11 Western states over several years. The amendments, proposed in the wake of an executive order calling for agencies to revisit regulations that “potentially burden” domestic energy production, include reopening critical grouse wintering areas to mining—a step that scientists caution could degrade and destroy sage grouse habitat.

Daly Edmunds, director of policy and outreach for Audubon Rockies, says that public comment on the sage-grouse plan has been curtailed in other ways as well: Meetings 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.

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

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

In his monument review report, Interior Secretary Zinke acknowledged that submissions were “overwhelmingly in favor of maintaining existing monuments,” but added that the consensus “demonstrated a well-orchestrated national campaign organized by multiple organizations”— 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 “local residents,” with no mention of the out-of-state billionaires and extractive companies that backed the campaign to slash Bears Ears.

The Clock Is Ticking 

Just as agencies have discretion over which feedback to heed, they also have considerable latitude in establishing the duration of comment periods. According to federal guidelines, 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 granted a 210-day comment period. 

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’s most intensively drilled regions, perforated by more than 40,000 oil and gas wells—approximately five per square mile. Guided by a 2010 Obama Administration directive, the federal Bureau of Land Management, the wing of the Interior Department that manages the basin’s public lands, had been selling a fresh batch of drilling leases to energy companies once a year. On January 31, 2018, the Trump Administration ordered BLM’s field offices to hold quarterly sales. Overnight, the potential pace of leasing in the San Juans and other regions quadrupled. What’s more, the new directive gave people just 10 days to protest after a sale was announced.“We suggest putting the BLM leasing webpage on your ‘favorites,’” one agency spokesperson told the Durango Herald.

The order alarmed Jimbo Buickerood, a program manager with the San Juan Citizens Alliance. Fracking within the basin, Buickerood points out, siphons up—and potentially pollutes—the same groundwater that sustains farms and ranches. How, he asks, can a busy farmer analyze and comment on a sale’s water impacts in scarcely more than a week? “They’re making it very difficult to keep up and provide input,” says Buickerood. 

The most dramatic transformation of public involvement in the environmental rule-making process, however, may be yet to come. In June, the White House’s Council on Environmental Quality published an advance notice suggesting possible changes to the National Environmental Policy Act (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 “unnecessary burdens and delays as much as possible,” while another asks if any regulations are “currently obsolete.” 

“This doesn’t look like a good-faith attempt to rewrite the law,” says Raul Garcia, senior legislative counsel at Earthjustice, a nonprofit environmental law organization. “This is another attempt to kill it by a thousand cuts.”

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

Garcia is similarly concerned by the rapidity with which the so-called “Magna Carta” of environmental law 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 grant another month. 

“It’s particularly ironic that NEPA is the law that gives the public a voice in these processes,” he says, “because with this process they’re cutting out the public.”

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 Audubon Rockies, insists that’s not so. “I don’t think it’s a foregone conclusion,” she says of the sage-grouse conservation plan’s revisions. Although public meetings were few in number this year, attendees showed no signs of fatigue. “It took work to get people to know about these meetings, but they showed up,” she says. “I’m trying to have faith in the process.”

When comment fails, the public does have another option: litigation. Within hours of Trump’s announcement about slashing the size of Bears Ears National Monument, for instance, a coalition of five Native tribes sued 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’s proposal to more than double entrance fees at 17 of the country’s most popular national parks, including Yellowstone, Yosemite, and Grand Canyon, in order to whittle down the National Park Service’s $11 billion 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. “A rate hike of this magnitude,” wrote one commenter, “will price many Americans right out of their own parks.” The government ultimately backtracked, raising fees by just $5 to $10 instead. 

Bristol Bay’s Pebble Mine saga, too, reinforces that public protest can still move the needle. On April 6, after nearly 5,000 Alaskans, including Republican Senator Lisa Murkowski, requested an extension, the Army Corps of Engineers tripled the comment period to 90 days. Bristol Bay is far from safe—an environmental review of the mine is plunging ahead, despite the objections of Alaska Governor Bill Walker. But Pedro Bay’s Keith Jensen, for one, thinks pragmatism and civic concern could still win out. Maybe.

“I hope they’re responsive to the concerns of residents, that they don’t jeopardize salmon for a short-term gain of minerals,” he says. “But a lot of money’s involved.”