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GAO: EPA Broke Law With Social Media Campaign Backing Clean Water Rule

The Government Accountability Office (GAO) said the Environmental Protection Agency (EPA) violated federal law by using an array of social media platforms to promote its controversial Waters of the United States (WOTUS) rule, and conducted a campaign of "covert propaganda" over an 18-month period.

In a 26-page legal decision issued Monday, GAO said EPA violated appropriations acts for fiscal years (FY) 2014 and 2015, which prohibit publicity or propaganda and grassroots lobbying. The EPA also violated the Antideficiency Act, on the grounds that the agency appropriated funds that were not available for prohibited purposes.

GAO said it was unclear how much money EPA spent on its social media campaign to promote the WOTUS rule, but the Antideficiency Act requires the agency to report the violation to the President and Congress, with a copy to the Comptroller General. GAO said EPA disclosed that it spent $64,610 "on video and graphic assets to raise awareness surrounding the proposed rule," but GAO said its concerns didn't involve those assets.

The WOTUS rule is part of the proposed Clean Water Rule (CWR), which EPA and the U.S. Army Corps of Engineers (USACE) unveiled last May (see Shale Daily, May 27). The rule is an attempt to clarify what water features deserve protection under the Clean Water Act (CWA). The oil and gas industry is opposed to the rule because it believes it could stifle development, while Republican lawmakers in Congress deride it as an overreach by the federal government. Other industries, such as agriculture, also are opposed to the rule.

According to GAO, EPA ran its social media campaign from February 2014 to July 2015. One of the tools the agency used was a "crowdspeaking" platform called Thunderclap, which enables a single message to be shared simultaneously across multiple Facebook, Twitter and Tumblr accounts. GAO said that by September 2014, EPA's Thunderclap messages were reaching 980 social media accounts, potentially reaching 1.8 million people.

GAO said EPA also used the social media hashtags #DitchtheMyth in an attempt to dispel what the agency perceived to be inaccuracies to the WOTUS rule "circulated by external interest groups" opposed to the rule. In April 2015, the EPA's communications director for its Office of Water created another hashtag, #CleanWaterRules, and used it "in numerous messages describing the importance of clean water and the protections in the rule," GAO said.

EPA also included hyperlinks to a webpage by the Natural Resources Defense Council (NRDC) and a blog post by the Surfrider Foundation. Both groups support the WOTUS rule.

"We conclude that EPA's use of Thunderclap constituted covert propaganda, in violation of the publicity or propaganda prohibition," GAO said, adding that the hyperlinks to the NRDC and Surfrider Foundation webpages "constitute grassroots lobbying." But GAO said the two hashtag campaigns did not violate the publicity or propaganda prohibition.

U.S. Sen. James Inhofe (R-OK), who requested the GAO probe of EPA's use of social media last April, said the findings raised more questions over the inner workings of the EPA and the process it used to develop other legislation, such as the Clean Power Plan.

"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," Inhofe, who chairs the Senate Environment and Public Works Committee, said Monday. "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.

"EPA's illegal attempts to manufacture public support for its WOTUS rule and sway Congressional opinion regarding legislation to address that rule have undermined the integrity of the rulemaking process, and demonstrated how baseless this unprecedented expansion of EPA regulatory authority really is."

Bob Stallman, president of the American Farm Bureau Federation, said organizations like his were vindicated by GAO's findings.

"Now that it has become clear that [EPA] used illegal tactics to manufacture ill-informed support for the [WOTUS] rule, Congress should act immediately to prohibit implementation of this rule, which is the product of an unlawful and misguided process," Stallman said Monday.

EPA Deputy Press Secretary Monica Lee said the agency disagrees with GAO's assessment but will comply with any applicable reporting requirements.

"We maintain that using social media to educate the public about our work is an integral part of our mission," Lee told NGI's Shale Daily on Tuesday. "We have an obligation to inform all stakeholders about environmental issues and encourage participation in the rulemaking process. We use social media tools just like all organizations to stay connected and inform people across the country about our activities.

"Our social media activity simply directed the recipient to the general webpage about the CWR. Every stakeholder and 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.

"At no point did EPA encourage the public to contact Congress or any state legislature."

The Senate passed a joint resolution last month to block the CWR from taking effect, but it was unable to muster enough votes to pass a bill sponsored by Sen. John Barrasso (R-WY) that would have required the Secretary of the Army and the administrator of the EPA to revise the WOTUS definition (see Daily GPINov. 5).

Last October, the Justice Department began asking federal district courts across the nation to halt proceedings against the CWR (see Shale Daily, Oct. 14). The move was designed to give the U.S. Circuit Court of Appeals for the Sixth District in Cincinnati more time to decide whether it has jurisdiction over a multitude of legal challenges to the rule. That court has so far blocked implementation of the CWR nationwide (see Shale DailyOct. 9).

Thirteen states, led by North Dakota, asked for and received a preliminary injunction against the rule last August, just before the rule was to take effect (see Shale Daily, Aug. 28Aug. 11).

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