As the EPA was considering the “Waters of the U.S.” regulation, the agency engaged in a pattern of advocacy that encouraged the public to lobby on it, violating prohibitions passed by Congress. This is the conclusion from the U.S. Government Accountability Office (GAO) in an opinion dated December 14, 2015.
The GAO was asked whether these activities violated the prohibitions on propaganda that exist in federal law. The GAO concluded that in at least one instance, the answer is yes. That instance involved the use of Thunderclap by the EPA to push its narrative on the regulation. As noted in the opinion, “Here, because EPA created a Thunderclap message that did not identify EPA as the author to those who would read it when Thunderclap shared the message across social media accounts, we consider whether the EPA’s use of Thunderclap constituted covert propaganda.”
Apparently the EPA was so desperate to move public opinion in favor of its controversial regulation that it hid its identity in order to make it look like these communications were not organized from the top down, but were rather an organic grass roots uprising.
The opinion states further, “EPA constructed a message to be shared by others that refers to the EPA in the third person and advocates support of the Agency’s activities.” These messages apparently reached 1.8 million users.
The EPA certainly knew what it was doing, after all, it was the communications director for the Office of Water that engaged in many of these activities. The EPA’s activities encouraged the public to engage in lobbying activities. As noted by the opinion, “When EPA hyperlinked to the NRDC and Surfrider Foundation webpages using an official communication channel belonging to the EPA and visually encouraged its readers to visit these external websites, EPA associated itself with the messages conveyed by these self-described action groups.”
In general, an attempt by a federal agency to convince the public to engage in lobbying is an activity that is prohibited by law. Thus, the conclusion from the GAO stating, “We conclude that EPA violated the anti-lobbying provisions contained in appropriations acts for FY2015 when it obligated and expended funds in connection with establishing the hyperlinks to the webpages of environmental action groups.”
Additionally, because the EPA violated the appropriations laws, a violation of the Antideficiency Act occurred as well. As noted by the opinion, “Because EPA obligated and expended appropriated funds in violation of specific 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.”
Such violations of the Antideficiency Act require a report which is provided to the President, Congress, and the Comptroller General. It remains to be seen whether the EPA will file this report and come clean on its activities in this area.
In order to further inform the public regarding the EPA’s activities in this area, Americans for Limited Government Foundation has filed a Freedom of Information Act (FOIA) request with the EPA. The request seeks copies of communications between the EPA’s Office of Water and the NRDC and Surfrider Foundation. Based on previous FOIA work from our office we know that the EPA does frequently coordinate with outside environmental groups and has a very chummy relationship with many of them. We will provide an update on this issue in the future, and will work to bring more of these situations to light so that the public can know how their government is attempting to shape the debate, both before them and before Congress, on environmental issues.
Nathan Mehrens is President of Americans for Limited Government Foundation