by Bobby Magill as published on Bloomberg Law
Usually when public comments are filed with a federal agency, they are made, well, public. Not so for the Bureau of Land Management, which is demanding that in some cases, such comments only be obtained through the cumbersome Freedom of Information Act.
Critics say the BLM’s action is part of a pattern shaping up in the Interior Department over the past year or more of delaying or denying requests for basic information from journalists and the public.
At issue this time are “public scoping” comments related to a far-reaching grazing rule, a draft of which is expected to be published this summer. The rule will affect livestock use, water quality, wildfire, endangered species, and control of 154 million acres of federal land in 13 states.
The agency is spurning its obligation under the National Environmental Policy Act to make writing new rules a fully open process, environmental groups say.
“NEPA is a transparency rule, and putting comments in a vault and making it difficult to access seems to run contrary to the purpose of the statute,” said Ted Zukoski, a senior attorney for the Center for Biological Diversity, an environmental group.
The BLM, which oversees more than 250 million acres of federal land mostly in the West, is the nation’s largest single land manager and is in charge of federal oil, gas, and coal leasing—essential elements of the Trump administration’s fossil fuels-focused energy agenda.
“BLM decision-makers have the discretion to publish or not publish unredacted scoping comments as deemed appropriate to the circumstances, agency capacity, and other applicable factors,” BLM spokesman Derrick Henry said.
Essential for Challengers
To be fair, “scoping” comments are a bit different from typical public commentary, which is posted online automatically. These comments are gathered separately as a way to help agencies understand what the public thinks is at stake and what issues need to be addressed in an upcoming project, rulemaking, or plan.
Scoping comments don’t address specifics of a draft plan. Federal agencies ask the public for these comments after they have announced they’ll be working on a new initiative. The comments are intended to help an agency figure out what issues should be covered in a draft of the upcoming rule.
“The purposes of scoping are, at an early stage, to get a sense of what needs to be studied in an environmental impact statement so some agency doesn’t spend months and months, and missed a major issue,” said Nicholas Yost, who led the Carter administration’s effort to draft the Council on Environmental Quality’s rules for implementing NEPA.
“From the public’s point of view, that becomes their first opportunity to say, ‘Hey, this concerns us, please study it, please analyze it,’” said Yost, who is now retired.
It’s not just comments on new grazing rules being kept under wraps. Scoping comments are also missing for a plan to build an 11,000-mile network of fire breaks in Western states, a 1,000-mile network of natural gas pipeline corridors in Wyoming, a New Mexico wind farm, and a plan to build a highway through a Mojave desert tortoise conservation area in Utah.
Documents Not ‘In Any Way Protected’
The BLM said it plans to summarize the scoping comments with names of the commenters struck from the public record. But that would still prevent the public—including attorneys, industry groups, and other government agencies—from seeing who’s influencing how grazing will be managed long before the new rule is finalized.
Scoping comments aren’t protected from public view under federal law, but NEPA doesn’t require the land agency to make them easily available, said Sam Kalen, a law professor focusing on public lands and energy at the University of Wyoming College of Law.
“They have exercised that authority to curtail the ability to easily get access to scoping comments,” Kalen said. “The reason for doing that would be to shield that information for as long as possible. There is no way to argue that those documents are in any way protected.”
The intent of NEPA is to promote robust deliberation and public comment, said Alejandro Camacho, a law professor and director of the Center for Land, Environment and Natural Resources and the University of California-Irvine.
“BLM is violating the goals and purposes of NEPA,” Camacho said.
Knowing who commented and what they said is essential to groups and attorneys poised to challenge new rules and projects.
Summaries ‘Not Very Helpful’
Summaries of scoping comments are “not very helpful because it would be interesting to know if a comment came from a paid attorney for a party that had a financial interest in the outcome of the project, or if it came from a state agency reflecting the public interest,” Zukoski, from the Center for Biological Diversity, said.
The BLM is also inconsistent. On some of its most controversial rules and projects, the BLM posts scoping comments raw and unaltered. It posted all the scoping comments in their raw form for the Trump administration’s controversial plan to open Alaska’s Arctic National Wildlife Refuge to oil drilling, and for a separate plan to open the National Petroleum Reserve in Alaska to new drilling.
The bureau’s scoping process is supposed to be “early and open” to allow the public to help determine all the issues that need to be addressed in a certain project or rulemaking, said Aladdine Joroff, a staff attorney at Harvard Law School.
Avoiding making public comments public “hurts the heart of NEPA,” she said.
“It seems strange not to do this, particularly now when the FOIA officers are understaffed,” Joroff said. “There is an expectation when you file comments that they could be made public. They should be automatically available even if not explicitly required to.”
Pattern on Information
FOIA has become a major point of political contention at the Interior Department and the Environmental Protection Agency, which both had administrators felled by revelations resulting from FOIA disclosures.
A 2018 congressional investigation found that the EPA manipulated its handling of records requests to prioritize records from the Obama administration over those involving former EPA Administrator Scott Pruitt and other Trump administration officials. It also allowed political appointees to review planned responses to FOIA requests.
Former Interior Secretary Ryan Zinke resigned his post the same year, after documents disclosed under FOIA exposed evidence that he may have used his position for personal benefit.
Since then, the department issued new rules for how it would process FOIA requests and, separately, implemented an “awareness review” process that would allow the Interior solicitor’s office to review any records requested under the act that name current or former political appointees.
Attorneys for advocacy groups say Interior is generally hostile to all FOIA requests because it exposes them to political risk.
“Ultimately, it’s the goal of the agency to expend fewer resources on handling FOIA. They consider it to be only a means for opponents of the Department of Interior to get ammunition to use against them in the public relations sphere,” said Kevin Bell, staff counsel for Public Employees for Environmental Responsibility, an environmental group.
The Interior Department said it was getting more, and more complicated, requests, since 2016, and was working to improve its systems to speed up response times.
‘A Lot of Us … Are Frustrated’
The new Interior rules, first proposed in the final days of Zinke’s term as secretary, aim to “streamline” Interior’s FOIA responses as records requests jumped 30% between 2016 and 2018.
The awareness review process and the new rules allow policymakers to weigh in on any FOIA response that might be politically troublesome, disarming a law that aimed to make government open and transparent, Kalen, from the University of Wyoming College of Law, said.
“What this is doing—anything that retards that openness and transparency is geared toward benefiting whomever is in power at the time,” Kalen said.
Interior FOIA officers say the department has drastically slowed the agency’s records request response times, and officials sometimes find illegitimate reasons to delay responses to FOIA requests.
“You should be frustrated,” said an Interior FOIA officer who spoke on condition of anonymity because the official wasn’t authorized to speak to the press. The officer was referring to responses to a Bloomberg Law FOIA request that has been delayed for more than a year. That’s in part because it had to be cleared by the White House, after officials cited what the FOIA officer called “bogus exemptions” to the public information law as reasons to avoid releasing records.
“A lot of us inside are frustrated because of the games that are being played,” the officer said.
It can take the BLM months—or years—to fulfill FOIA requests because of long request backlogs and few staff to fill them, Bell, from the Public Employees for Environmental Responsibility, said. Interior has deprioritized FOIA to the point that it has become an afterthought, Bell said.
As of the end of the last fiscal year, BLM had more pending FOIA requests—873—than any of the 11 other Interior divisions, except the Interior Secretary’s office, according to the agency’s annual FOIA report. That number was up to 937 as of the beginning of June, said Ryan Witt, BLM’s acting chief of external affairs.
By contrast, other Interior agencies, including the Bureau of Ocean Energy Management and the U.S. Geological Survey, are processing fewer than 40 requests nationwide.
Regional FOIA officers at the land agency say they are overworked and understaffed. As of the start of the month, a BLM FOIA office in Montana was processing 50 FOIA requests dating back three years.
New FOIA requests the office receives are being put on hold indefinitely, said regional FOIA officer Tracy Thoricht, who added that she manages the region’s FOIA program in addition to eight other programs.
“The volume and complexity of FOIA requests received by the Department has increased exponentially since 2016,” Interior FOIA Office Director Rachel Spector said in a statement provided by the agency’s public affairs office. “Many of the FOIA offices are overwhelmed, making it challenging to provide timely responses.”
Interior has “streamlined” its FOIA response offices and is establishing uniform response standards across agencies, including addressing inefficiencies and strategically adding staff, Spector said.
‘Huge Volume’ to Deal With
Brian Smith, FOIA officer for the BLM’s Eastern States office, said the agency is being inundated with FOIA requests, and he works alone processing his region’s 30 outstanding queries.
“It’s a huge volume that we’re all having to deal with,” he said.
Among BLM’s backlogged FOIA requests is a Bloomberg Law request for the BLM’s grazing regulations scoping comments filed March 3. The BLM hasn’t yet responded to the request. Since late May, BLM acting FOIA Officer Keiosha Alexander also hasn’t responded to repeated calls and emails seeking an update on the status of the request.
It’s “really bad policy” to avoid making public comments public, especially when it takes a long time for an agency to respond to FOIA requests for the comments, said Yost, the Carter administration official.
“There are agencies who use FOIA to block access and keep stalling,” Yost said.
The reporter on this story was president of the Society of Environmental Journalists in January 2019 when SEJ signed onto a Reporters Committee for Freedom of the Press letter criticizing a draft of the Interior Department’s proposed FOIA regulations.
To contact the reporter on this story: Bobby Magill at firstname.lastname@example.org