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How the Biden Administration Can Protect Public Environmental Information

Removal of the Migratory Bird Treaty Act link text and link from the U.S. Fish & Wildlife Service’s Energy Development “Permits, Policies, and Authorities” webpage between February 26, 2018, and February 27, 2018. (Source: Internet Archive’s Wayback Machine.)

By Marcy Beck

Just one week into Biden’s presidency, the White House Office of Science and Technology Policy (OSTP) announced its intent to review the effectiveness of scientific integrity policies across federal agencies, stating that, “scientific findings should never be distorted or influenced by political considerations.” This week, the White House kicked off the effort by announcing a task force to investigate past political interference in scientific decisions.

The OSTP review provides an opportunity to address the policy gaps in the governance of public information found on the websites of federal agencies, an issue that the website monitoring team of the Environmental Data & Governance Initiative has been tracking since the beginning of the Trump presidency. Over the last four years, EDGI’s web monitoring team has documented and analyzed changes to federal environmental websites. The recent summary report, Access Denied: Federal Web Governance Under the Trump Administration, underscores the need for OSTP to direct the creation of legally-enforceable policies that ensure public digital information is accessible and protected. 

At present, while considerable guidance exists for the delivery of federal digital services, there is scant policy focused on the web content provided by federal agencies, let alone on digital information and context related to regulations and rule-making proceedings. Born-digital resources are by and large excluded from record-keeping laws and guidance as well, with no repercussions for agencies stripping public resources containing inconvenient factual information for a given political agenda. 

EDGI’s Access Denied report provides an in depth assessment underscoring the importance of bringing policy and procedural resources to bear in these important public information arenas, along with a clear message: 

In this digital age and at this juncture in the development and protection of American democracy, EDGI recommends that the Biden administration swiftly develop progressive web-based information policies to be implemented across federal agencies and then codified into law. These policies and laws would provide standards for web governance, that is, the creation and management of data and informational resources provided on digital platforms. We recommend that regulatory-related resources–informational resources that pertain to the purpose, function, or impact of environmental laws–be a web governance priority.                 

WHAT EDGI’S WEB MONITORING TEAM FOUND

  • A sizable proportion of website changes tracked between 2017 and 2020 are related to regulations and rule proceedings.

EDGI’s web monitoring team has catalogued and reported on a broad range of changes to language, access, and content of federal environmental information throughout the past four years. Of the approximately 1,400 important web changes catalogued in EDGI’s website monitoring dataset between 2017 and 2020, 294 (over 20%) were related to regulations and regulatory affairs. Half of those changes (50%) were removals of information, 10% were reductions in navigation to information, 15% were language changes, and 25% were additions of information. Eleven federal agencies are represented in these website changes, though the patterns identified are largely driven by EPA pages, which account for 66% of our sample. Our report provides detailed descriptions and examples of each of these categories of change.

  • Timing is a key factor for assessing and addressing regulatory website changes.

Over 80% of the subject matter information removals we observed occurred just prior to or during active regulatory proceedings. The implications are sobering when one considers that a federal agency with a vested interest in a certain regulatory outcome can deprive the public of resources that inform understanding of and involvement with laws and regulations, including participating in public comments or advocating to federal, state, or local agencies and elected officials. 

  • Significant website changes related to key environmental deregulatory actions laid bare the need for better web governance.

Clean Power Plan – In April 2017, more than five months before proposing to repeal the Clean Power Plan (CPP), the EPA redirected its entire Clean Power Plan website to a single new webpage, “Energy Independence,” with no information about the CPP. (April 2018 public comment

Clean Water Rule/Waters of the United States – In May 2017, more than two month before proposing to repeal the Clean Water Rule, the EPA removed web resources previously available about the 2015 Clean Water Rule and its underlying science. These resources included fact sheets, an infographic, videos, and blogs. The EPA redirected its Clean Water Rule website to a new WOTUS Rule website, comprised of information entirely about the rule-making process and selective legal background. (June 2017 report; April 2019 public comment)

Migratory Bird Treaty Act Between December 2017 and April 2018, the U.S. Fish & Wildlife Service removed, revised, and reduced access to MBTA web resources basic to public participation in the 2019-2020 rule-making process focused on incidental take of migratory birds. A previous Department of Interior Solicitor’s 30-page opinion regarding incidental take was replaced with a 1-page suspension memo on the DOI Solicitor’s Opinion webpage. (September 2018 report; March 2020 public comment)

Greater Sage-Grouse Resource Management Plans – In May 2018, days before the opening of a public comment period for proposed amendments to Greater Sage-Grouse Resource Management Plans, the BLM removed web resources including the “Top 5 Things You Should Know About Greater Sage-Grouse” and fact sheets about each affected state’s current sage grouse conservation efforts. The webpages that had hosted those fact sheets were removed in the days following the end of the public comment period in August 2018, more than seven months before the amendments were finalized. (March 2019 report)

EDGI’S RECOMMENDATIONS FOR FEDERAL WEBSITE GOVERNANCE 

  • Commit to the importance of web governance.

Develop and maintain digital policies and procedures that focus on website structure, content, and access, with special attention to regulatory-related resources.

  • Create meaningful resources to build civic and scientific literacy.

Web resources should include ladders of information aimed at audiences with a variety of background knowledge, from novice to expert, such that the public can build environmental and science literacy through engaging with federal website resources.

Regulatory resources, especially resources labeled as guides or guidelines, should provide summaries, definitions, and simple graphics tailored to the general public, with links and citations for more detailed and specialized resources to inform an already well-versed audience. 

Include specific requirements for the creation of website content describing the scientific basis for proposed and current environmental regulations, scientific evidence regarding potential impacts of regulations, and the science underlying regulatory cost-benefit analyses. 

Provide mechanisms for public feedback to help achieve these resource improvements and create a pathway for government accountability.  

  • Ensure resource accessibility. 

Website information should be available, discoverable, and navigable. Ensuring that links exist to pertinent information from primary topical pages is critical across the often complicated digital presence of the federal government. 

Pages detailing regulations should link to and explain the relevance of related information, providing context for the purpose, effectiveness, and/or enforcement and adherence to a rule.

Information about upcoming regulatory matters should be widely posted on all webpages with relevant subject matter so that the public is made aware of opportunities for civic engagement and participation in environmental decision-making. 

A timeline of the regulatory history related to a proceeding or rule-making should be required, including legal challenges and decisions affecting implementation, as well as previous versions of rules and regulations, and legal opinions rendered.

  • Preserve public web resources. 

During active regulatory proceedings, no public resources pertaining to the purpose, substance, or potential impacts of rules in question should be removed. If resources become out of date during that time, banners should be applied to explain any outdated elements and point readers with links and explanations to updated resources. 

While website information can be expected to be ephemeral as updates are made, resources should be accessibly archived. The EPA hosts a large online archive, but many agencies do not, and EPA’s archive resources are not easily accessed. For any URL that has been removed from active use, rather than simply registering as a “Page Not Found,” it should link to the latest archived version of that page. Agency archives should provide links to other archived pages, such as was engineered for EPA’s January 19, 2017 Snapshot

Specific notice requirements should be established and implemented for resource removals. We also recommend the development of a searchable database describing content changes on webpages, with appropriate notice and a link to the database from webpages that have been recently edited.

LOOKING AHEAD 

EDGI’s Website Monitoring Team invites you to read our full report. With faith in federal institutions at a pivotal moment, we believe that our recommendations for better web governance practices can assist the federal government in providing comprehensive, reliable, and timely resources that will regain and retain the public’s trust.