Drain the Swamp: Trump admin bends over backwards to receive industry input on NEPA
Public comments on proposed policies aren’t the most glamorous way to participate in this great democracy these days. You can’t pose with your comments for a selfie, no one’s retweeting links to comment pages, and you don’t get a fun sticker. But that doesn’t mean comments aren’t important. They are! They’re a way for you to tell your government what you want. Federal agencies are legally required to read them, and then respond to indicate why they either are or aren’t changing the proposed regulation in response to the comment.
They provide a public back-and-forth between those concerned about a regulation and the government, one that can be crucial when it comes time to challenge a rule in court. After all, they can be used to prove that the government ignored a concern, or that it acted in accordance with expert judgement.
And if you’re still not convinced they’re all that important, consider this. Despite the fact that the Trump administration is stocked with former lobbyists, BloombergEnvironment’s Stephen Lee reported yesterday that the White House provided a special back-channel for industry to submit their comments directly and privately, instead of using the standard submission form.
During a call with businesses and environmental groups, one industry interest, Lee reported, “bemoaned the fact that his group’s comments in favor of the NEPA revisions were getting drowned out.” In response, “a White House official” offered “to work with industry groups after the call,” ultimately giving them an email to send their comments to instead of submitting them online like everyone else.
Why does it matter if an industry group supporting the Trump administration’s proposal to weaken the National Environmental Policy Act got to submit their comments to the administration without anyone else knowing?
Because, as Southern Environmental Law Center’s Kym Hunter explained to Lee, “usually you see the comments as they come in, and then you can respond to them.” Essentially, it makes the industry state its argument publicly, enabling activists to rebut them in the comments , leaving a paper trail that will come in handy if there is a court case to litigate the legality of the move.
It also makes it obvious where the public stands on the issue. There were more than 80,000 comments on the changes despite the fact that it took groups like the Southern Environmental Law Center four hours to submit its comments due to the unwieldy website and hundreds of attachments they included. Hunter said that “we would have loved to be able to send it in an email,” because obviously anyone would like to know that their comment is going directly to the White House instead of just submitting it into the void.
And even better, it meant shielding the industry’s point of view from public criticism, as the comments still haven’t been made public. That’s likely not an accident according to Rena Steinzor, former president of the Center for Progessive Reform who’s now an administrative law professor: “I never filed them until the last minute, precisely because I did not want my well-heeled opponents picking away at them for days or weeks.”
Although it’s hardly a surprise that the Trump administration would give industry a backdoor entrance to influence policy, given the fact that former lobbyists are running the administration, it is somewhat shocking that a back-channel was even necessary.