Washington, DC, Feb. 12, 2020 — In public announcements about regulatory matters, federal agencies traditionally adhere to neutral sounding language, especially when soliciting public comment on an official proposal. That is changing, as some agencies use even regulatory announcements to self-promote, a practice that skews the rulemaking process and may make pre-ordained agency actions legally vulnerable, according to Public Employees for Environmental Responsibility (PEER).
Last month, for example, the U.S. Fish and Wildlife Service (FWS) issued a press release to announce a public comment period on its proposed rule to weaken the Migratory Bird Treaty Act in a manner benefitting oil, gas, and mining interests. The rule would mean that industry can kill birds in their operations without legal consequences unless the government proves the killings were intentional. The official FWS release includes favorable statements from 28 industry organizations and others, ranging from the Governor of Alaska to the National Association of Home Builders. The FWS must have leaked an advance copy of the proposed rule to them, which was not done for the numerous bird conservation groups that oppose the proposal.
That news release maneuver sparked a letter of protest from David Klinger, a former FWS Assistant Regional Director for Public Affairs now living in Boise, Idaho. He wrote FWS Director Aurelia Skipwith that –
“In my 35-year professional career with the U.S. Fish and Wildlife Service’s Office of Public Affairs, I have never witnessed a more blatant attempt to ‘steer’ a rule-making action to a predetermined conclusion by the inappropriate use of an official public pronouncement, such as this agency press release.”
Besides being tacky, this bald show of bias could undermine the agency’s ultimate action in court. While anyone has the right to comment on federal agency rule-making, public comments are accepted by agencies only during the formal comment period. Secretly soliciting and publishing a large number of orchestrated “pre-comments” after a leak to just one side of an issue, and then attaching them to the agency’s announcement of a proposal, may be a violation of the Administrative Procedure Act, which mandates even-handed administration of federal rulemaking.
“What is alarming is that the Fish and Wildlife Service is not even bothering to maintain an appearance of impartiality in soliciting public comments,” stated PEER Senior Counsel Peter Jenkins, noting that the Trump administration is already losing court battles due to its refusal to adhere to the Administrative Procedure Act. “Rachel Carson, the heroic biologist who worked for the agency in its formative years, is surely spinning in her grave as the once-proud Service has reduced itself to spinning PR for industrialized destruction of migratory birds.”
The Migratory Bird Treaty of 1918 (among the oldest wildlife protection laws in existence) adopted by the U.S., Canada, Mexico, and Russia, has provided legal protection for migrating warblers, hawks, ducks, and many other types of birds for the last 100 years.