GAO says EPA used illegal social media effort to back ‘waters of the U.S.’ rule

The Government Accountability Office, in a Dec. 14 letter and report sent to Sen. James M. Inhofe, R-Okla., Chairman of the Committee on Environment and Public Works, said that the U.S. Environmental Protection Agency illegally used certain social media platforms in association with its “Waters of the United States” (WOTUS) rulemaking.

The WOTUS rule extends EPA authority over smaller water bodies and has run into vocal opposition across industries, including from the coal production industry. A number of parties, including Ohio-based coal producer Murray Energy, have appealed the rule into federal court.

GAO said this social media campaign for the rule “violated publicity or propaganda and anti-lobbying provisions contained in appropriations acts.” Section 718 of the Financial Services and General Government Appropriations Act, 2014, prohibited the use of EPA’s appropriations for unauthorized publicity or propaganda purposes. Section 715 of the act prohibited the use of EPA’s appropriations for indirect or grassroots lobbying in support of or opposition to pending legislation. These same restrictions applied to EPA’s FY 2015 appropriations. Section 401 of the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2015, similarly prohibited the use of EPA’s appropriations for grassroots lobbying, the GAO noted.

The letter added: “As explained below, we conclude that EPA violated the described provisions through its use of social media in association with its rulemaking efforts to define ‘Waters of the United States’ under the Clean Water Act (CWA) during FYs 2014 and 2015. Because EPA obligated and expended appropriated funds in violation of statutory prohibitions, we also conclude that EPA violated the Antideficiency Act, 31 U.S.C. § 1341(a)(1)(A), as the agency’s appropriations were not available for these prohibited purposes.

“EPA did not quantify an exact cost associated with the use of any particular social media platform. The agency noted that staff is paid for time spent developing and posting a message but time is not tracked by platform or project. EPA explained to us that it spent $64,610 on video and graphic assets to raise awareness surrounding the proposed rule, but it does not appear to us that the aspects of EPA’s campaign with which we have concerns would involve these video and graphic assets. The agency should determine the cost associated with the prohibited conduct and include the amount in its report of its Antideficiency Act violation.”

In one social media effort, EPA attempted to dispel what it views as inaccuracies on the rule being circulated by external interest groups. For this purpose, EPA created a hashtag (#): #DitchtheMyth. The #DitchtheMyth campaign included graphics regarding aspects of the rule, along with statements that people could tweet using their own Twitter accounts.

On April 7, 2015, EPA’s Communications Director for its Office of Water created an EPA blog post called “Tell Us Why #CleanWaterRules.” The post initiated the agency’s #CleanWaterRules social media campaign. The Communications Director states that “[w]e can’t protect our rivers, lakes, and coastal waters if we don’t protect our streams and wetlands,” and notes that the best thing people can do for clean water is to “spread the word about how much it matters.”

Inhofe said in a Dec. 14 statement: “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. 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 added: “GAO’s determination that EPA violated the ban on covert propaganda and grassroots lobbying is especially troubling. EPA’s illegal attempts to manufacture public support for its Waters of the United States 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. This opinion from GAO also bolsters our oversight of EPA in other areas, as we continue to investigate and raise questions about the process EPA used to develop the Clean Power Plan and its coordination with environmental activists groups.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.