The Honorable Sonny Perdue
Secretary
U.S. Department of Agriculture
1400 Independence Ave., S.W.
Washington, D.C. 20250
The Honorable Vicki Christiansen
Chief
U.S. Department of Agriculture Forest Service
201 14th Street, S.W.
Washington, D.C. 20227
September 24, 2020
Dear Secretary Perdue and Chief Christiansen:
Given the ongoing public health crisis as a result of COVID-19, the 49 organizations listed above request that the Department of Agriculture and the U.S. Forest Service issue a 90-day extension – until January 31, 2021 – of the ongoing public comment period for the nonessential Oil and Gas Resources proposed rule.185 Fed. Reg. 54,311 (Sept. 1, 2020). The proposed rule requires additional time to comment because it is highly complex with potentially far reaching implications, advances controversial “energy dominance” policies, and would cut the public out of the process that decides whether and which lands will be opened to oil and gas drilling. The current comment period is insufficient for such a complex rule during the present crisis.
This request follows numerous similar requests submitted by Members of Congress, attorneys general, and state and local governments to extend public comment periods for rulemaking efforts and other processes during the pandemic.2E.g., Letter from seventy Members of Congress to Secretary Bernhardt, submitted April 14, 2020: https://lowenthal.house.gov/sites/lowenthal.house.gov/files/ASL%20Letter%20to%20DOI%20- %20Comment%20Periods%20-%20FINAL.pdf; Letter from fourteen House of Representatives Committee Chairs to Acting Director Russell Vought, submitted April 1, 2020: https://www.eenews.net/assets/2020/04/02/document_gw_08.pdf; Letter from Senators Wyden, Merkley, and Udall to Secretary Bernhardt requesting a pause on comment periods, submitted April 3, 2020: https://www.wyden.senate.gov/imo/media/doc/040320%20Letter%20on%20DOI%20comment%20periods.pdf; Letter from state attorneys general to Acting Director Russell Vought, submitted March 31, 2020: https://portal.ct.gov/-/media/AG/Press_Releases/2019/COVID-19-Rule-Delay-Letter—Final.pdf?la=en; Letter from various state and local government organizations requesting a pause on all public comment and rulemaking processes, submitted March 20, 2020: https://www.nga.org/letters-nga/state-and-local-government-organizationsseek- pause-on-public-comments-on-rulemaking-processes/ The pandemic has had significant and ongoing impacts on normal working and living conditions, impairing the ability of the general public and issue experts to weigh in on federal government actions. The country’s attention is focused on keeping families healthy and safe.
The pandemic has also created challenges for conducting adequate public meetings. The Forest Service has yet to propose any public engagement for the proposed rulemaking. Although agencies have in some cases used online forums and virtual meetings, those meetings exclude members of the public who cannot access them. Access to broadband internet and a computer at home is a privilege. Moreover, individuals without access to these resources rely on public spaces, such as government facilities, schools, community centers, and libraries, which generally remain closed due to public health concerns. The ongoing pandemic has made it extremely difficult for many people to participate in the rulemaking process. The Forest Service must provide for public participation in this rulemaking via virtual meetings and mechanisms that allow participation by members of the public who lack access to broadband internet. In addition, the agency should engage with stakeholders to determine what types of public engagement opportunities and on what timelines will work best for their unique circumstances and needs – particularly for a national rulemaking that will have local consequences on a wide range of stakeholders.
It is critical that the entire public, as well as state, local, and tribal governments, have adequate time and capacity to engage in federal public processes. Given the tremendous amount of resources devoted to protecting our loved ones and communities against the ongoing public health crisis, it is inappropriate for the federal government to expect to receive adequate public engagement on non-public safety measures during short timeframes that can and should be extended.
Government agencies should prioritize work that is essential to the pandemic response or that is subject to unalterable legal deadlines. Administrative actions and public comment periods for other federal agency actions have been suspended or extended for “to be determined” amounts of time due to the national emergency. 3E.g., DOI’s Interior Board of Land Appeals extended all filing deadlines by 60 days in response to COVID-19; The Daniel Boone National Forest Supervisor sent a letter to relevant parties suspending the public objection period in light of COVID-19; U.S. Forest Service extended a public comment period for the Nantahala and Pisgah forest plan revision for an additional 45 days. Available at: https://www.fs.usda.gov/detail/nfsnc/home/?cid=stelprdb5397660 Additionally, numerous federal institutions, including the Supreme Court and the IRS have announced extensions of normal filing deadlines because of the public health concerns related to COVID-19.4
Further, to achieve the goal of the National Environmental Policy Act (NEPA) of ensuring public participation, the Forest Service must ensure that the proposed administrative process allows for robust public participation by the interested public. 4Order from the U.S. Supreme Court extending the deadline for petition for a writ of certiorari by 150 days: https://www.supremecourt.gov/orders/courtorders/031920zr_d1o3.pdf; IRS announcement extending the filing deadline for tax returns by 3 months: https://www.irs.gov/newsroom/payment-deadline-extended-to-july-15-2020.
Consistent with the Forest Service’s mission to care for our national forests and serve people, we ask for your understanding during this trying time and request that you extend public comment opportunities during the COVID-19 crisis. During the pandemic, adequate public engagement will necessarily take more time than under normal circumstances. At minimum, the Forest Service should extend the public comment period by 90 days.