There was an interesting development yesterday in the controversy over EPA’s aggressive social media campaign in support of its “Waters of the United States” rule. This rulemaking, conducted in conjunction with the Army Corps of Engineers, on was the subject of a panel at the recent ABA Adlaw Section Fall meeting.

The Final Rule was issued on June 29, 2015 (80 F.R. 37,053). The Proposed Rule was issued April 21, 2014 (79 F.R. 22,188). The rulemaking proceeding was a long-delayed response to two Supreme Court decisions calling into question the breadth of the agencies’ broad regulatory definition of “waters of the United States” in the Clean Water Act. See Rapanos v. United States, 546 U.S. 932 (2006); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531U.S.159 (2001). But it didn’t take long for Congress to raise objections. On May 1, 2014 a letter was sent by 231 Members of the House of Representatives urging the agencies to withdraw the proposed rule.

Knowing that the proposed rule would be controversial, EPA twice extended the comment period until it stretched to over 200 days. During this comment period, and even after the draft final rule was sent to OMB for OIRA review, EPA used social media platforms to generate support for the proposed rule. It definitely succeeded in rallying a lot of supporters. When the final rule was issued, its preamble trumpeted the fact that “over 1 million public comments on the proposal, the substantial majority of which supported the proposed rule. . . .”

The EPA’s use of social media was heavily criticized by opponents of the rule, led by the American Farm Bureau Federation (AFBF), in testimony by its General Counsel Ellen Steen to the Senate Committee on the Judiciary on June 10, 2015.

Six days later, on June 16, Sen. James Inhofe (R-OK) asked the US Government Accountability Office (GAO) for its opinion concerning whether the EPA had violated publicity or propaganda and anti-lobbying provisions contained in appropriations acts.

Yesterday GAO General Counsel Susan A. Poling released that opinion, finding several violations of laws against “covert propaganda” and lobbying Congress.

Here is the abstract of the opinion, which can be found here:

The Environmental Protection Agency (EPA) violated publicity or propaganda and anti-lobbying provisions contained in appropriations acts with its use of certain social media platforms in association with its “Waters of the United States” (WOTUS) rulemaking in fiscal years 2014 and 2015. Specifically, EPA violated the publicity or propaganda prohibition though its use of a platform known as Thunderclap that allows a single message to be shared across multiple Facebook, Twitter, and Tumblr accounts at the same time. EPA engaged in covert propaganda when the agency did not identify EPA’s role as the creator of the Thunderclap message to the target audience. The agency’s #DitchtheMyth and #CleanWaterRules social media campaigns did not implicate the publicity or propaganda prohibition. EPA also violated anti-lobbying provisions though its hyperlinks to certain external Web pages in an EPA blog post. Both of the external Web pages led to appeals to the public to contact Congress in support of the WOTUS rule, which taken in context, constituted appeals to contact Congress in opposition to pending legislation. EPA associated itself with these messages through its decision to include the hyperlinks in its blog post.

The “publicity or propaganda prohibition” stems from language in the 2014 and 2015 Financial Services and General Government Appropriations Act § 718 providing: “No part of any appropriation contained in this or any other Act shall be used directly or indirectly, including by private contractor, for publicity or propaganda purposes within the United States not heretofore authorized by Congress.” Pub. L. No. 113-76, div. E, § 718 (2014) and Pub. L. No. 113-235, div. E, § 718 (2015). In prior opinions cited in this one, GAO had interpreted this provision to prohibit both “covert propaganda” and “anti-self-aggrandizement.”

The anti-lobbying provision stems from Section 715 of the same law which provides: “No part of any funds appropriated in this or any other Act shall be used by an agency of the executive branch other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes, and for the preparation, distribution or use of any kit, pamphlet, booklet, publication, radio, television, or film presentation designed to support or defeat legislation pending before the Congress, except in presentation to the Congress itself.” GAO had interpreted this to prohibit “indirect or ‘grassroots’ lobbying in support of, or in opposition to, pending legislation.” In a blogpost on April 7, 2015, EPA had included links to websites of the Surfrider Foundation and the NRDC’s Brewers for Clean Water initiative, both of which encouraged readers to contact Congress. Notwithstanding the fact that each of these organizations had launched their websites before the WOTUS rule was even proposed, the GAO found that, in context, this was illegal grassroots lobbying by EPA because there was pending legislation relating to the WOTUS rule at the time of the blogpost.

GAO’s bottom line contained what amounts to a directive to EPA, which, while technically non-binding, has a lot of gravity. [GAO’s own “ Procedures and Practices ” document notes that decisions of the Comptroller General are “conclusive on the executive branch, 31 U.S.C. § 3526(d),” but goes on to say that it is up to executive agencies to implement and enforce the decisions.]

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. Accordingly, EPA should report the violation to the President and Congress, with a copy to the Comptroller General, as required by the Antideficiency Act. The agency should determine the cost associated with the prohibited conduct and include the amount in its report of its Antideficiency Act violation.

A few preliminary thoughts:

• First: This GAO opinion will certainly feature prominently if and when the AFBF or some other party challenges this rule in court.
• Second: Going forward, agencies will have to be extremely careful whenever they link with an advocacy organization’s webpage or blog. In fact they would be well advised not to do it at all given that they cannot be sure when the outside organization’s webpage may change and some entreaty to contact Congress might be added.
• Third: EPA was found not to have violated the “covert propaganda” restriction in its #DitchtheMyth Twitter campaign and its #CleanWaterRules blogpost—mainly because the material being disseminated clearly indicated that it originated with EPA. But this then raised the possibility that EPA might have violated the “anti-self-aggrandizement” prong of the propaganda prohibition. Even though GAO did not find that violation, it seems like there is an inherent tension between these two prongs of the anti-publicity or propaganda restriction—the more open an agency is as to “owning” the disseminated material, the more it risks being found to be to self-aggrandizing.
• Fourth: During the ABA Adlaw Section panel, I was critical of some of the EPA’s actions in this rulemaking from the standpoint of contributing to the misperception that rulemaking is a plebiscite and even creating a perception that its mind was made up at the time of the proposed rule.But I am less sure that it makes sense to tie agencies’ hands in using social media more generally in publicizing its activities. This opinion certainly has the potential for setting some ground rules for agency use of social media, and I suspect that agencies will err on the side of limiting their participation in it.

For two other takes on the subject of agency puffery/self-aggrandizement, see articles by the Weekly Standard and the Washington Post .

Jeffrey S. Lubbers is Professor of Practice in Administrative Law at the American University Washington College of Law.