A federal investigation has revealed that US EPA violated federal law by utilizing “covert propaganda” and illegal grassroots lobbying to encourage voters to support its Waters of the United States Rule (the “Clean Water Rule“).  US EPA’s legal violations in the context of the Clean Water Rule could lead to additional trouble for the agency.  Members of the House Energy and Commerce Committee are investigating whether US EPA employed similar tactics to bolster support for US EPA’s controversial Clean Power Plan.

Covert Propaganda

A non-partisan investigation by the Government Accountability Office (“GAO”) determined that US EPA used covert propaganda to manufacture support for, and counter Republican opposition to, the Clean Water Rule.  The GAO report details how US EPA created public comments supporting the Clean Water Rule using social media platform Thunderclap.

Thunderclap allows a campaign organizer to share the same message at the same time, spreading a social media post through Facebook, Twitter, and Tumblr.  For the Clean Water Rule, US EPA created a Thunderclap campaign styled, “I Choose Clean Water.”  Once US EPA met its goal of 500 supporters, Thunderclap posted the following message to supporter accounts:

Clean Water is important to me.  I support EPA’s efforts to protect it for my health, my family, and my community.

US EPA’s social media campaign violated federal law because the message constituted “covert propaganda”:  US EPA concealed or failed to disclose its role in sponsoring the material.  Federal agencies can promote their own policies, but cannot engage in covert activity intended to influence the American public.  As the non-partisan GAO Report explained:

EPA constructed a message to be shared by others that refers to EPA in the third person and advocates support of the agency’s efforts.  In stating ‘clean water is important to me’ and ‘I support EPA’s efforts, EPA deliberately disassociates itself as the writer, when the message was in fact written, and its posting solicited, by EPA.

US EPA’s use of federal funds to covertly influence the American public violated federal law.

Illegal Grassroots Lobbying

EPA separately violated federal law by using federal funds to engage in “grassroots” lobbying supporting the Clean Water Rule.  EPA hyperlinked to external webpages containing link buttons to contact Members of Congress in support of the Clean Water Rule.  For example, EPA argued in a blog post that “brewers depend on a reliable supply of clean water,” and that “there is an alliance of brewers speaking out for clean water.”  EPA’s post concerning the brewers hyperlinked to a Natural Resources Defense Council webpage:

The “Add Your Voice and Help Make Great Beer” button on that webpage links to a page that explicitly encourages readers to contact Congress:

The non-partisan GAO investigation concluded that the brewer link, and others like it, constituted a “clear appeal by EPA to the public to contact Members of Congress in support of or in opposition to pending legislation.”  US EPA’s efforts violated federal law by marshaling taxpayer dollars for its grassroots lobbying efforts.

Backlash

US EPA’s reliance on illegal lobbying tactics has led to additional inquiries into other recent rulemakings.  For example, Republicans on the House Energy and Commerce Committee are investigating US EPA’s use of social media campaign concerning a separate controversial regulation, the Clean Power Plan.  Chairman Fred Upton, R-Michigan, and others, recently sent a letter to EPA Administrator Gina McCarthy seeking:

1. All social media and web postings, referring or relating to the Clean Power Plan, including but not limited to any edits or other changes made to social media or web postings;

2. All communications between or among EPA, other federal agencies, or third parties referring or relating to social media or web postings on the Clean Power Plan; and

3. An accounting of the federal funds spent by EPA on soliciting comments in support of the Clean Power Plan, including through social media and web postings.

The GAO’s decision, and new Congressional investigation, may spell more trouble for the agency over the already controversial rulemakin