EPA Broke Rules in Promoting Waters Rule, GAO Says

CQ NEWS
Dec. 14, 2015 – 4:44 p.m.

EPA Broke Rules in Promoting Waters Rule, GAO Says

By Jeremy Dillon, CQ Roll Call

The EPA violated policy restrictions in the fiscal year 2014 and 2015 spending laws by using social media to promote its proposed Waters of the United States rule, according to the Government Accountability Office.

Republican lawmakers have targeted WOTUS, which expands federal jurisdiction over wetlands and streams under the Clean Water Act (PL 95-217), as regulatory overreach by the Obama administration. A federal appeals court placed a hold on the rule’s implementation as it considers a legal challenge filed by states and agricultural interests.

The EPA rulemaking is also targeted in policy riders still under consideration for the fiscal year 2016 omnibus spending bill. House Republicans included riders to prevent WOTUS implementation in the committee-approved Interior-Environment bill (HR 2822) and the House-passed Energy and Water bill (HR 2028), while the Senate included them in the two committee-approved versions of the bills (S 1645)and (HR 2028).

“GAO’s finding confirms what I have long suspected, that EPA will go to extreme lengths and even violate the law to promote its activist environmental agenda,” said Senate Environment and Public Works Chairman James M. Inhofe, R-Okla., who initiated the GAO inquiry. “Courts have already raised questions about the legality of the Waters of the U.S. rule and have temporarily halted it from going into effect. EPA officials act as if the law does not apply to them, but this GAO opinion should serve as another reminder that EPA officials are not above the law.”

According to the GAO finding, the EPA violated publicity/propaganda and anti-lobbying provisions in the fiscal 2014 (PL 113-76) and 2015 (PL 113-235) spending laws with its use of social media to promote the rule and gain support from the public via “covert propaganda.”

The EPA responded that social media public outreach is an “integral part of our mission” and a way to meet its “obligation to inform all stakeholders about environmental issues and encourage participation in the rulemaking process.”

“Our social media activity simply directed the recipient to the general webpage about the Clean Water Rule,” according to a statement issued by the agency.

“Every stakeholder and every stakeholder group — whether they supported or opposed the rule  — was provided the same link to the general webpage on education and outreach materials, emails, and presentations, and were told the deadline for submitting public comments and how to do so,” the EPA said. “At no point did the EPA encourage the public to contact Congress or any state legislature.”

Aggregating Supporters

EPA used a crowd-aggregating program known as Thunderclap that collects supporters of a message and once a certain threshold of supporters is reached, sends a coordinated message through their accounts.

The message in this case said “Clean water is important to me. I support EPA’s efforts to protect my health, my family, and my community,” followed by a hyperlink directing users to the EPA’s website for the proposed rule. The campaign ran in September 2014 with a blog post from EPA directing people to the website on Sept. 9, 2014.

“A Thunderclap campaign, by its nature, requires supporters for Thunderclap to post the campaign’s message,” the GAO report said. “For these supporters, EPA’s role in the campaign and construction of the message to be shared was evident… The message was not written for the supporters who joined the campaign — it was written for their networks of friends and followers who would see the message in their newsfeeds and dashboard when Thunderclap posted on their accounts.”

This form of “covert Propaganda” violated the appropriation restriction, GAO said.

GAO also found that EPA-related accounts used hyperlinks on its accounts to redirect users to other organizations such as the National Resources Defense Council and their blog posts outlining the need for the WOTUS rulemaking and ways to reach out to a user’s local lawmakers to lobby support.

GAO recommended that the EPA report its misuse of appropriated funds to the president and Congress.

Trade organizations opposing the WOTUS rulemaking jumped onto the GAO finding as further evidence of EPA’s mishandling of the rule.

“The GAO findings vindicate those, like the American Farm Bureau Federation, who have claimed all along that EPA’s tactics advocating for this rule stepped past the bounds of proper agency rulemaking. EPA was focused only on promoting the rule rather than hearing good-faith concerns from a wide cross-section of Americans,” said American Farm Bureau Federation President Bob Stallman in a statement. “The public deserves better when important matters of public policy are at stake.”

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