Legal & Regulatory

GAO: EPA Used Covert Propaganda to Promote WOTUS Rulemaking

The U.S. Government Accountability Office (GAO) issued a decision concluding that the Environmental Protection Agency’s (EPA’s) use of Thunderclap—a crowd-speaking social media platform that allows a single message to be mass-shared, flash-mob style—constituted “covert propaganda,” in violation of the publicity or propaganda prohibition.

The decision was issued in response to a request from Sen. James Inhofe (R-Okla.) for the GAO’s opinion concerning whether the EPA’s use of certain social media platforms in association with its “Waters of the United States” (WOTUS) rulemaking in fiscal years 2014 and 2015 violated publicity or propaganda and anti-lobbying provisions contained in appropriations acts.

The GAO also concluded in its decision that hyperlinks to Natural Resources Defense Council and Surfrider Foundation webpages provided in an EPA blog post constituted grassroots lobbying, in violation of the grassroots lobbying prohibition. Both of the external webpages led to appeals to the public to contact Congress in support of the WOTUS rule. However, the GAO determined that the EPA’s #DitchtheMyth and #CleanWaterRules social media campaigns did not implicate the publicity or propaganda prohibition.

The EPA, in defending its use of social media outlets, pointed to authority in the National Environmental Education Act of 1990 and the E‑Government Act of 2002 as providing statutory authority for it to use the internet and other information technologies to educate the public and achieve the “widest possible dissemination of information,” and to create opportunities for public participation in government. The GAO, however, held the position that neither of these provisions provides the EPA with specific authority to overcome the publicity or propaganda restriction on the use of appropriated funds.

The EPA also argued that its campaign did not include any appeals to contact Congress regarding pending legislation. But the GAO said that argument necessarily turns on acceptance of the agency’s view that it has no responsibility for linked content—an argument that the GAO rejected. It said that the EPA’s decision to link to external websites belonging to environmental action groups to support statements made in its blog associated the EPA with the content reached by clicking those hyperlinks.

“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 said. “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.”

On Oct. 9, the U.S. Court of Appeals for the Sixth Circuit granted a stay sought by 31 states and state agencies that are challenging the legality of the rule. The motion bars the U.S. Army Corps of Engineers and EPA from enforcing the Clean Water Rule, which critics contend is “exceptionally expansive.”

Aaron Larson, associate editor (@AaronL_Power, @POWERmagazine)

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