The issues surrounding the Environmental Protection Agency’s waters of the U.S. rule continue to come under fire and the microscope.
Over the last week the House Oversight and Government Reform Committee revealed that the Army Corps of Engineers, the primary regulator over EPA’s rule, believes that the rule will not hold up in the courts and the Corps repeatedly rebuked EPA officials for their abuse of the rulemaking process.
Wednesday more than 100 members of Congress sent a letter to the EPA’s Office of the Inspector General requesting that the OIG open a formal investigation into the EPA’s unprecedented grassroots lobbying effort to promote its rulemaking
All rulemakings, particularly ones of such an enormous scope and significant consequence as the WOTUS rule, require stakeholder engagement to the strongest degree possible. However, in an effort to misrepresent the concerns of the affected public, the EPA used social media and possibly colluded with advocacy organizations to generate support for its actions.
Anti-lobbying statutes and U.S. Department of Justice (DOJ) guidelines prohibit agency employees from “engaging in substantial ‘grass roots’ lobbying” and from “provid[ing] administrative support for the lobbying activities of private organizations", as such activities undermine the spirit of the public comment period.
The EPA consistently made claims that it had received over one million comments on the rule, and about 90% of them were supportive. However, according the U.S. Army Corps of Engineers, only 20,567 of those comments were considered “unique,” and of those, only 10% were considered substantive. The vast majority of comments – more than 98%– appeared to be mass mailings generated by the EPA’s lobbying efforts.
So while it is clear that EPA undertook an unprecedented campaign to generate support for the WOTUS rule, whether or not the Agency’s actions became illegal actions in violation of anti-lobbying statutes is unclear.
Rep. Bob Gibbs (R., Ohio) who led the delegation of members in writing the letter, said if the EPA colluded with political entities like the Sierra Club and Organizing for America to promote this regulation, he hopes OIG conducts a rigorous, impartial investigation to determine whether any federal anti-lobbying laws were broken.
Rep. Tom Marino (R., Pa.), said agencies like the EPA must be impartial and separated from political influence from advocacy organizations. The EPA should be investigated for possible wrongdoing and open to full exposure of its rulemaking and advocacy activity.”
