Did the EPA Illegally Lobby the American People?

How far can government agencies go when trying to implement new regulations? According to a review from the Government Accountability Office (GAO), the EPA broke the law in its push to gain public support for its new water regulation rule, using what the GAO calls “covert propaganda.” As social media becomes an increasingly important platform for government agencies to share information with the public, it’s also becoming clear that a line exists in terms of how far their outreach can go.

The EPA rule that prompted the campaign sought to better define and expand the agency’s authority to regulate the “navigable waters” of the United States under the Clean Water Act. A series of Supreme Court decisions made it particularly difficult to determine the waters under EPA authority, so the agency proposed a new rule to create clarity while also expanding its jurisdiction. The rule immediately became controversial. In fact, Republicans and a range of business interests, from farmers to the oil industry, came out against the rule before it took effect. Critics argued that the rule was a sweeping example of government overreach with the EPA seeking to expand its authority to regulate and dictate the use of land near water sources. The interest groups opposing the new legislation created a particularly powerful coalition, lobbying members of Congress and creating public relations campaigns to communicate their opposition.

In response to the strong opposition from the business lobby, the EPA went on its own social media campaign to spread information about the new rule during the public comment period. A New York Times article noticed the unconventional methods employed by the EPA, citing observers concerns that the agency was overstepping its bounds.

After a review of the EPA’s practices, the GAO report identified four social media campaigns initiated by the EPA, concluding that two of them violated anti-lobbying restrictions and laws that prohibit publicity or propaganda for agencies that receive Congressional appropriations. While government officials and the heads of certain agencies are allowed to explicitly advocate for certain policies, federal agencies themselves are not allowed to lobby the public.

The EPA’s position, which is reflected in the GAO report, maintains that the agency acted properly in its use of social media. In a statement given to the New York Times, an EPA Spokesperson said:

We use social media tools just like all organizations to stay connected and inform people across the country about our activities… At no point did the E.P.A. encourage the public to contact Congress or any state legislature.

The GAO took issue with the agency’s use of a platform called Thunderclap, which allows a message to be posted across supporters’ Facebook and Twitter accounts all at once. The problem identified by the GAO was that when the message was shared across social media, which may have reached as many as 1.8 million people, the EPA was not was not easily identifiable as the source. Because government information is supposed to be closely tied to its source, the use of Thunderclap constituted “covert propaganda.”

The EPA also used a #DitchtheMyth campaign on social media, which allowed people to share the agency’s campaign with their networks. The GAO argued that this was acceptable because the prescribed message referenced the EPA’s official Twitter accounts and the graphics used the EPA logo. The #CleanWaterRules campaign was also considered lawful by the GAO. This campaign did not violate the publicity restrictions placed on the agency because the GAO found that the communications did not qualify as self-aggrandizement, but rather were intended to promote discussion and associate the proposed rule with the agency.

Finally, the GAO found that an EPA’s blog post violated anti-lobbying restrictions because of how hyperlinks connected people with advocacy groups while knowing that members of Congress explicitly opposed the rule. A blog post by an EPA communications director illustrated some of the ways the rule would help people in everyday activities like surfing and drinking beer. The blog post linked to a National Resource Defense Council page, which talked about the effects of clean water on beer brewing, and a Surfrider Foundation article about how pollution affects surfers. Both websites also featured some sort of action section that encourages visitors to contact their legislators about the EPA rule. The GAO concludes:

EPA violated the anti-lobbying provisions contained in appropriations acts for FY 2015 when it obligated and expended funds in connection with establishing the hyperlinks to the webpages of environmental action groups

By hyperlinking to these advocacy organizations’ websites, the EPA associated itself with their message–including appeals to contact Congress about open legislation–which violate the anti-lobbying restrictions placed on the agency.

While these efforts don’t necessarily constitute flagrant abuse, they do seem to violate the restrictions placed on the EPA as the GAO review found. In its report, the GAO recommended that the agency determines how much it spent on unlawful practices and notify Congress and the President that the violated the Antideficiency Act, which prohibits federal employees and agencies from spending unauthorized or unappropriated funds.

This finding illustrates the particularly difficult position many government agencies can find themselves in while trying to establish new rules and regulations. The EPA is arguably one of the best examples, as a highly polarized Congress has made its efforts particularly controversial. As more and more regulation is created through executive action, efforts like the EPA’s Clean Power Plan and Waters of the United States rule have come under more and more criticism from opponents. Much of this ends up being manifested in lawsuits and political disagreement–the new water rule is currently facing challenges from 18 different states. But as the debate rages on, agencies are tasked with informing the public about of their policies and potential effects. Using social media to do so can be particularly effective, but as the GAO ruling shows, limitations certainly exist.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.