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EPA violated rulemaking procedures in WOTUS rule

Article-EPA violated rulemaking procedures in WOTUS rule

GAO finds violations in EPA's appropriations for unauthorized publicity or propaganda purposes.

In a decision Dec. 14 from the non-partisan Government Accountability Office, the GAO found that the Environmental Protection Agency violated federal law in promoting the agency’s “waters of the United States” rule. The decision found the EPA engaged in covert propaganda and grassroots lobbying to support the WOTUS rule.

In April, Sen. Jim Inhofe (R., Okla.), chairman of the U.S. Senate Environment and Public Works (EPW) Committee, first requested GAO review EPA’s use of social media, including the Thunderclap platform, to promote the WOTUS rule to determine whether it violated Congressional prohibitions against grassroots lobbying (including restrictions contained in annual appropriations laws). During the course of its review, GAO expanded its inquiry at Inhofe’s request to also examine whether EPA’s activities constituted prohibited covert propaganda or publicity.

The GAO decision finds that the EPA’s use of Thunderclap, in which a single social media message can be shared across multiple Facebook, Twitter and Tumblr accounts at the same time, was a prohibited use of EPA’s appropriations for unauthorized publicity or propaganda purposes.

The GAO outlined that Thunderclap would post a message to supporter accounts if a goal of 500 supporters was reached. EPA met and exceeded its supporter goal, causing Thunderclap to post the agency’s message on 980 social media accounts on Sept. 29, 2014 at 2 p.m. Based on the followers and friends of these supporters, Thunderclap estimated that EPA’s message potentially reached about 1.8 million people. Often in defending its rule on Capitol Hill, EPA regularly cited how over 90% of comments received were supportive of the rule.

The GAO legal decision found EPA’s publicity campaign on Thunderclap constituted covert propaganda, and an EPA website linking to Natural Resource Defense Council and Surfrider Foundation websites encouraging the public to contact Congress violated restrictions on indirect or grassroots lobbying. In identifying these violations, GAO also determined EPA violated the Antideficiency Act, which prohibits U.S. government employees from spending government funds unless authorized by law. 

Inhofe and agricultural groups opposed to the rule said GAO’s finding confirmed what they had already suspected, that EPA had a “radical agenda” and as Inhofe said, “EPA will go to extreme lengths and even violate the law to promote its activist environmental agenda.”

“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,” Inhofe said.

Philip Ellis, president of the National Cattlemen’s Beef Assn., said, “From the start, the EPA’s use of social media and particularly Thunderclap, raised concerns with stakeholders opposed to the WOTUS rule,” said Ellis. “The use of these messages, without attribution to the agency, was clearly intended to deceive the public to engage in the spread of EPA’s propaganda without consideration of the rulemaking process. By crafting the social media message to appear grassroots, the EPA misused tax-payer funds to support expansion of federal jurisdiction.”

The House has already voted to stop the rule from going into effect. Legislation in the Senate was unable to gain the 60 votes needed to get cloture to stop debate on the rule, but was only a few votes from approval.

Those opposed to the rule used the GAO report as another indicator of the need to stop the rule in its tracks.

“Courts already have declared serious doubts about the legal authority for the rule. Now that it has become clear that the agency used illegal tactics to manufacture ill-informed support for the rule, Congress should act immediately to prohibit implementation of this rule, which is the product of an unlawful and misguided process,” said Bob Stallman, president of the American Farm Bureau Federation. “Now it’s up to Congress to clean up this mess by including a corrective measure in the omnibus bill now taking shape on Capitol Hill.”

The GAO’s general counsel has advised the EPA to report the violations and the costs associated with the violation of the law to the President and Congress as required by the Antideficiency Act.

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