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Alleged Industry Back Channel Blasted by Environmental Groups

April 6, 2020, 10:02 AM

The White House gave industry a special back-channel option to file public comments on a critical rewrite of environmental permitting rules, several environmental groups allege.

The groups, who were unaware of the access, say they’re suspicious because the specific email address for comments wasn’t advertised publicly as an accepted means for submissions. They say it was used to give industry players an advantage in the administration’s effort to rewrite National Environmental Policy Act regulations to speed environmental permitting for major projects such as roads, bridges, and pipelines.

“Usually you see the comments as they come in, and then you can respond to them,” said Kym Hunter, a senior attorney at the Southern Environmental Law Center.

But the comments emailed to the White House Council on Environmental Quality still aren’t being displayed, nearly a month after the comment period closed. The center has filed a Freedom of Information Act request to get copies of all the emailed comments.

A spokesman for the Council on Environmental Quality, which is working on the NEPA rewrite, said last week that the agency has received public comments through the email address, which was published in its Federal Register notice announcing the rulemaking in January.

But Daniel Schneider, the CEQ spokesman, denied that the agency did anything wrong.

Deregulatory Views Not Heard

Several sources said they traced the genesis for the email to a conference call that took place on Feb. 27 and included both business and environmental groups. The call was arranged by the White House Office of Intergovernmental Affairs to discuss changes to the National Environmental Policy Act. At the outset of the call, reporters were ordered to hang up.

During the call, a person representing an unnamed business interest bemoaned the fact that his group’s comments in favor of the NEPA revisions were getting drowned out by opposing views, according to six participants who all requested anonymity in order to not violate their agreement to keep the call off the record. A White House official responded by offering to work with industry groups after the call, the sources said.

“I think such an approach might well be illegal,” said Rena Steinzor, who teaches administrative law at the University of Maryland School of Law, referring to the idea that an agency would tell people to send comments to an email rather than to the docket.

Schneider, the CEQ spokesman, said the agency “didn’t create any new email addresses, either on its own or at the request of any entity or group.”

But he also acknowledged that the Jan. 10 Federal Register notice announcing the rulemaking only listed the email address as a place to request further information—not as an approved method for sending in comments. The comment period closed March 10.

Schneider didn’t specify how many comments the agency had gotten through that email, what percentage of them supported or objected to the rulemaking, or when the uploading would be complete.

Last week, he said CEQ was in the process of uploading the emailed comments to its docket on Regulations.gov, the General Service Administration’s public-facing rulemaking website.

CEQ says it has reached out to the public, held two public meetings, and received more than 80,000 comments on its proposed changes to the NEPA rules.

Senator Concerned

“CEQ said that it was engaging in ‘extensive public outreach,’” Sen. Tom Carper (D-Del.), top Democrat on the Senate Environment and Public Works Committee, told Bloomberg Law. “If these reports are true, I would argue that allowing comments to remain hidden in email hardly constitutes an open and extensive public process.”

Ann Mesnikoff, federal legislative director at the Environmental Law and Policy Center, said she had concerns about why some groups knew they could submit comments through the email address, and others didn’t.

“It’s a procedural issue of how CEQ is running the docket,” she said. “That wasn’t the same direction given to everybody.”

It took Southern Environmental Law Center staff four hours to submit comments online, because they wanted to include hundreds of attachments and the GSA site is “not a great website,” according to Hunter. “It goes down sometimes. We would have loved to be able to send it in an email.”

The center underscored its concerns in a March 6 legal filing in federal district court, writing that, if such a channel does exist, “CEQ’s failure to publicly notice this back door comment portal evince[s] further potential agency bias.”

Filing Names Industry Group

In its legal filings, the Southern Environmental Law Center told the Virginia district court that it believed the Energy Equipment and Infrastructure Alliance may have been behind the request for an email address to submit comments. The alliance, which represents those working in the energy supply chain, didn’t respond to an interview request.

On its website, the group urges members to “take action” to support the changes to the NEPA rules, which haven’t been updated in more than four decades. Toby Mack, the group’s president, also testified before CEQ in February in favor of the proposed changes to infrastructure permitting.

Sidney Shapiro, an administrative law professor at Wake Forest University, called the CEQ’s actions “unprecedented.” All commenters should be required to use the GSA website, he said.

Steinzor, from the University of Maryland School of Law, said it makes sense for commenters to try to shield their remarks from others, but only within the rules.

“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,” she said. Steinzor is the former president of the Center for Progressive Reform, a nonprofit that advocates for health, safety, and environmental protections.

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com; John Dunbar at jdunbar@bloomberglaw.com

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