Did EPA Help Generate Positive Public Comments on Waters of the US Rule?

A lengthy May 18 New York Times article reported on allegations that the United States Environmental Protection Agency (EPA) may have helped manufacture many of the public comments in support of its controversial change to definition of “waters of the United States” under the federal Clean Water Act.  As previously reported on Conduit Street, the United States Environmental Protection Agency (EPA) and United States Army Corps of Engineers are moving to finalize the  proposed rule despite: (1) concerns raised by MACo, the National Association of Counties, and numerous other stakeholders; and (2) legislation that is moving through Congress to restart the rule making process.

From the article:

Gina McCarthy, the agency’s administrator, told a Senate committee in March that the agency had received more than one million comments, and nearly 90 percent favored the agency’s proposal. Ms. McCarthy is expected to cite those comments to justify the final rule, which the agency plans to unveil this week.

But critics say there is a reason for the overwhelming result: The E.P.A. had a hand in manufacturing it.

In a campaign that tests the limits of federal lobbying law, the agency orchestrated a drive to counter political opposition from Republicans and enlist public support in concert with liberal environmental groups and a grass-roots organization aligned with President Obama. …

The E.P.A.’s campaign highlights the tension between exploiting emerging technologies while trying to abide by laws written for another age.

The article noted that while federal agency leadership can promote proposed policies and support or oppose legislation on behalf of their agency , legal opinions from the Justice Department prohibit agencies from substantial “grass-roots” lobbying that targets the general public or a segment of the general public and urges them to communicate a particular point of view to the government.  EPA’s use of social media and coordination with environmental organizations in support of proposed rule may have violated this prohibition.

Late last year, the E.P.A. sponsored a drive on Facebook and Twitter to promote its proposed clean water rule in conjunction with the Sierra Club. At the same time, Organizing for Action, a grass-roots group with deep ties to Mr. Obama, was also pushing the rule. They urged the public to flood the agency with positive comments to counter opposition from farming and industry groups.

The results were then offered as proof that the proposal was popular. …

The most contentious part of the E.P.A.’s campaign was deploying Thunderclap, a social media tool that spread the agency’s message to hundreds of thousands of people — a “virtual flash mob,” in the words of Travis Loop, the head of communications for E.P.A.’s water division.

The architect of the E.P.A.’s new public outreach strategy is Thomas Reynolds, a former Obama campaign aide who was appointed in 2013 as an associate administrator. “We are just borrowing new methods that have proven themselves as being effective,” he said.

But industry critics said the agency’s actions might be violating federal lobbying laws.

While critics questioned EPA’s actions, EPA denied any wrongdoing:

At minimum, the actions of the agency are highly unusual. “The agency is supposed to be more of an honest broker, not a partisan advocate in this process,” said Jeffrey W. Lubbers, a professor of practice in administrative law at the American University Washington College of Law and the author of the book “A Guide to Federal Agency Rulemaking.”

“I have not seen before from a federal agency this stark of an effort to generate endorsements of a proposal during the open comment period,” he said. …

“The agency has relentlessly campaigned for the rule with tweets and blogs, not informing the public about the rule but influencing the public to advocate for the rule,” said Ellen Steen, general counsel at the American Farm Bureau Federation. “That is exactly what the Anti-Lobbying Act is meant to prevent.” …

“E.P.A. Office of Water’s Twitter account has essentially become a lobbyist for the proposal,” wrote Kevin P. Kelly, chairman of the National Association of Home Builders, in a letter to the E.P.A. protesting the role the agency has played in advocating its clean water proposal. …

Officials at the E.P.A. strongly defend their work — insisting that they did not violate the Anti-Lobbying Law because they never explicitly urged the public to lobby Congress, just to express their support for the plan in a public way.

“We are well within our authority to educate the American people about the importance of what E.P.A. is doing to act on climate change and protect public health,” Mr. Reynolds said. “There is a very clear line, and we never, ever cross it.”

United States Attorney General Opinion on Federal Agency Grass Roots Lobbying
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