EPA all wet after illegal missteps? (Editorial)

(June 2, 2015) The Environmental Protection Agency finds itself in some hot water after suspicion surfaced late last month that in soliciting comments for its proposed “Waters of the United States” rule it broke federal law crossing over into grassroots lobbying to drum up support for the regulation as it issued a final rule last week.
In a front-page New York Times article, critics of the rule argued the agency violated federal lobbying law with tactics through social media in concert with environmental groups to boost positive public comments on the rule that would then be used to advocate for implementing the final rule.
In March, EPA Administrator Gina McCarthy told a Senate committee that of the more than one million comments on the rule, nearly 90 percent were in support of it.
“Late last year, the EPA 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 grassroots group with deep ties to (President Barack) 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 Times reported on May 18. “The results were then offered as proof that the proposal was popular.”
The agency also used Thunderclap, a social media tool that can spread a message faster and wider than other platforms.
The Thunderclap effort was promoted in advance with the agency issuing a news release and other promotional material, including a photograph of a young boy drinking a glass of water, the Times article said.
“Clean water is important to me,” the social media message said. “I want EPA to protect it for my health, my family and my community.”
An estimated 1.8 million people received the message, according to Thunderclap.
Federal law prohibits political appointees from engaging in “grassroots” lobbying “designed to encourage members of the public to pressure Members of Congress to support administration or department legislative or appropriations proposals,” according to a 2005 U.S. attorney general memo.
While the EPA staunchly defends its actions saying it never explicitly urged people to contact legislators, only to express public support, groups critical of the proposed rule aren’t buying it, critics of the rule say otherwise.
“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,” Ellen Steen, general counsel at the American Farm Bureau Federation told The Times. “That is exactly what the Anti-Lobbying Act is meant to prevent.”
Efforts to kill the proposed rule have been watched closely by groups on both sides of the issue. On May 12, the House of Representatives passed its version of a bill that would give state and local governments more say in the rule making, but it was 17 votes shy of the two-thirds veto-proof majority. A similar effort to force the agency to rewrite the rule is under way in the Senate.
The suspicious campaign leading up to this finalized rule says a lot about the agency. Instead of just acting as referee, the intent of Congress when the agency was established, the EPA wants to play the game, too.
On May 27, the finalized Clean Water Rule was issued to add clarity to which smaller water bodies would get federal protection.
The EPA contends the finalized rule creates no new permitting requirements and maintains all the same exemptions for agriculture the previous rule had.
Many farmers had little trust in the EPA before the rule making process began and opposition only seemed to grow. These social media shenanigans, while perhaps a moot point now, will not be forgotten.