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March 22 — When the Environmental Protection Agency released a rule a year ago to clarify which waters should be regulated under the Clean Water Act, it turned to social media to get the word out.
The EPA penned a blog about why clean water matters, tweeted it to followers and shared that post on Facebook. The agency also launched a campaign #DitchtheMyth to counter claims about the rule's regulatory reach and used a virtual flash mob known as Thunderclap to spread its message to nearly 2 million people.
The agency's use of the Internet to disseminate information about its environmental regulations may seem harmless or even appropriate to some, but to others it is breaking the law.
For years, the EPA has been straddling a fine line between educating the public about environmental rules and advocacy for the administration's agenda through traditional media, irrespective of who holds the Oval Office, a Bloomberg BNA examination of EPA's advocacy efforts shows. The fine line now seems to be blurring as the EPA steps up its use of social media to promote its message of public health and environmental protection.
Government agencies are prohibited from grassroots lobbying under Section 1913 of the Anti-Lobbying Act and under provisions that have been inserted into various appropriations laws. Lawyers and lobbyists familiar with the workings of the EPA say the fine line has always existed because the federal government, though not allowed to lobby officially, always has had staff from the Office of Congressional and Intergovernmental Relations working on Capitol Hill advocating the agency's message.
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“Executive branch agencies have engaged in lobbying for decades. They have staff that goes up on the Hill and promotes its agenda but don’t report” as lobbyists, Howard Marlowe, president of Warwick Group Consultants LLC, which lobbies on federal water infrastructure policies and projects, told Bloomberg BNA. “Now social media gets them into trouble because it makes it more transparent what they are doing.”
Marlowe, who is the former president of the American League of Lobbyists, said the Lobbying Disclosure Act requires only contacts with the highest level of executive branch officials to be disclosed. Moreover, lobbyists must register and disclose lobbying activities each quarter only if they hit certain monetary and activity thresholds, meaning there are certain interactions that fall below the radar, Marlowe said.
Marlowe is among a cadre of lobbyists who are seeking to reform lobbying laws to include activities by the federal government. The Congressional Research Service has reported on the need for the existing lobbying laws to address the federal government's increasing use of social media.
The EPA, which aims to educate the public about protecting human health and the environment, has been accused by members of Congress of engaging in illegal lobbying. In several instances, the Government Accountability Office, at the request of members of Congress, has issued three legal opinions in 1976, 1996 and most recently in 2015 on whether the EPA has violated provisions banning the use of appropriated funds for lobbying activities.
In two of the three instances, the GAO found the EPA to be violating anti-lobbying provisions. In its 1976 opinion, the GAO said the EPA violated the law by providing government-paid stamped mailing envelopes to the nonprofit Planning and Conservation Foundation to distribute water quality newsletters.
In December 2015, the GAO found the agency violated bans against propaganda and grassroots lobbying provisions contained in appropriations laws for fiscal years 2014 and 2015 by promoting the Clean Water Rule through social media.
Specifically, the GAO legal opinion said the EPA ran afoul of the anti-lobbying provisions by not identifying itself in the message text when using a Thunderclap campaign, “I Choose Clean Water,” to generate support from 980 supporters of the Clean Water Rule. The supporters in turn spread the message instantaneously to 1.8 million people in their social media networks on Facebook, Twitter and Tumblr.
The accountability office, at the request of Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, also found the EPA violated the law for linking its blog, “Tell us Why #CleanWaterRules,” to websites run by environmental nonprofits Natural Resources Defense Council and Surfrider Foundation that in turn urged public to write members of Congress in support of the water rule and against legislative efforts by Republicans.
The EPA in its defense to the GAO claimed, as it always has, that it was merely educating the public about the rule, which would clarify which waters and wetlands fall under Clean Water Act protections (RIN 2040-AF30). The agency emphasized that it didn't ask the public to write to the members of Congress though it admitted that its blog did link to the pages of the environmental groups.
The EPA made those same arguments in 2003 after it ran a series of radio spots on the Hispanic Radio Network with messages of how to foster a healthy environment. The campaign, which coincided with National Hispanic Heritage Month, featured information about President George W. Bush's pending Clear Skies initiative, children's health protection, asthma, water conservation and proper use of pesticides. The EPA also planned at the time to publish columns in 90 Hispanic newspapers throughout the country.
At the time, Reps. Henry Waxman (D-Calif.), John Dingell (D-Mich.) and David Obey (D-Wis.)—all of whom have since retired—questioned whether the agency was violating the Anti-Lobbying Act under 33 U.S.C. 1931, which prohibits federal agencies from advocating for pending legislation .
The EPA told the lawmakers it hadn't violated any lobbying laws because the ads were informational, and, “No one is asking the public to send letters or contact anyone.”
However, not all attorneys were persuaded by the agency's justification. The EPA under the administration of George W. Bush “blatantly” violated lobbying laws in 2003 as well when it was running radio ads on the Clear Skies Initiative because it involved the use of public funds, according to John Sheehan, a partner with the Washington D.C. office of Clark Hill PLC, who worked in the EPA Office of General Counsel on detail from the Justice Department in the mid-1990s. That was when EPA under the Clinton administration was taken to task by the GAO for lobbying against the agenda of then House Speaker Newt Gingrich (R-Ga.).
The GAO, however, found no fault in 1996 when the agency put together a strategy for disseminating fact sheets countering provisions in the Contract with America, which the EPA considered to be anti-environmental. The contract was the signature legislative agenda for Gingrich when the Republicans took control of the House in 1994, and included a legislative proposal addressing regulatory reform and risk assessments.
Rep. David McIntosh (R-Ind.), who chaired the House Government Reform and Oversight Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, asked then-EPA Administrator Carol Browner under President Bill Clinton's administration to explain the fact sheet, which claimed the proposed bill (H.R. 9), which “purports to reform the regulatory process by applying sound science and risk assessment,” instead would “block the protections that Americans deserve and demand.”
However, a GAO legal opinion deferred to the Justice Department's interpretation of Section 1913 of the Anti-Lobbying Act. The DOJ said the provision prohibited only substantial ($50,000 or more) agency grassroots lobbying campaigns or campaigns in which direct appeals are made to members of the public to contact their elected representatives either in support of or opposition to pending legislation. The GAO said the EPA did engage in various activities to drum up opposition to H.R. 9, which included compiling lists of members of Congress considered moderates and distributing the fact sheets to at least 150 organizations.
And yet, the GAO concluded that “in none of the materials we have reviewed is there evidence of grassroots lobbying, i.e. any direct appeal for people to contact members of Congress. Nor is there any clear indication in the materials provided that EPA provided direct support to lobbying organizations that supported its views, which would constitute a violation.”
Sheehan disagreed with the GAO's legal opinion, characterizing the EPA's efforts to fight another branch of government as a blatant example of public education crossing over to advocacy.
“There was enough material in the fact sheets to raise the issue whether they crossed the line,” said Sheehan, who in 1995 served in the EPA Office of General Counsel as a detail from the DOJ when the agency was developing its strategy to counter the Gingrich agenda.
“In the Contract with America situation, that was clear use of public funds and public resources to try to defeat legislation,” he said.
Marlowe, who served as past president of the American League of Lobbyists, said it would be difficult not to describe the EPA's efforts on the Contract of America legislation as lobbying. The league now is called the Association of Government Relations Professionals.
“You would have to turn yourself into a pretzel to believe that the agency by putting out fact sheets in support of its position and distributing those to Congress or to the public was not engaged in advocacy or lobbying that should be covered by the lobbying act,” he said.
The problem—as aptly summed up in a 2012 Congressional Research Service report—is that no single federal agency has responsibility for reviewing agencies' communications with the public or enforcing statutory restriction.
The DOJ is responsible for prosecuting agencies under the anti-lobbying statute, but the CRS said “the DOJ has never prosecuted anyone.” Oversight and investigation falls on the shoulders of the GAO, which has reviewed the EPA's alleged transgressions only three times in the agency's 44-year history.
Moreover, enforcement of public communications takes place after the fact.
And finally, the language prohibiting lobbying is vague.
“It was fuzzy then, and it is fuzzy now,” Sheehan said, referring to EPA's lobbying activities in 1996 and today. “It's a line that the agency has to be careful about crossing.”
For instance, the CRS report pointed to the “publicity or propaganda” ban in appropriations laws that isn't defined, so Congress has to rely on GAO interpretations, which aren't authoritative. Consequently, the DOJ has contested the GAO’s conclusions in some instances and directed executive agencies not to heed its opinion, the report said.
Following the legal opinion on the EPA's promotion of the Clean Water Rule, the agency issued a statement saying it disagrees with the GAO's findings. However, the EPA has, as the accountability office suggested, removed the hyperlinks to the advocacy groups' webpages from its blog. But as the CRS said, the agency's response always occurs after the fact.
Marlowe said it is time to change lobbying laws to reflect social media. “Rather than rely on interpretations that seem to vary over time, the laws need to be updated. Whether it's an agency or a client of mine, engaging in social media ought to be a reportable lobbying activity, which it is not now,” Marlowe said.
Even prior to the advent of social media, the EPA has been aware of how its advocacy efforts can run into legal barriers. In 1995, Sheehan said the EPA general counsel was aware of the fine line between public education and advocacy, especially in an agency such as the EPA where 18,000 employees have to be kept on the same page.
“There were discussions at the time that the issue of lobbying will come up a lot, especially with politicians involved who are anti-agency,” said Sheehan, adding he is surprised the anti-lobbying provisions haven't been used by member of Congress more. “We thought it was going to be used more by politicians with a grudge against the agency, but it looks like it hasn’t been used as much.”
John Wonderlich, policy director for the nonprofit Sunlight Foundation, told Bloomberg BNA the difference between promotion and grassroots lobbying might get harder to distinguish as communications go online.
“There are so many more opportunities for mischief, so many more opportunities to run afoul of the anti-lobbying provisions” Sheehan said. He said social media gives agencies more opportunities to communicate with the public, which is good in some respects, but “keeping everyone in line and telling them not to lobby must be a little difficult to control.”
The CRS said social media may make it more difficult to discern when an agency has violated Section 1913 because grassroots lobbying occurs when an agency consciously encourages the public to pressure Congress.
“Arguably, any time an agency publishes anything on the Internet it could have the effect (intentionally or unintentionally) of encouraging citizens to contact Congress, especially if the communication ‘goes viral,' ” the CRS said.
The CRS recommends Congress define vague terms in the anti-lobbying provisions and statute, and require agencies to identify the author of tweets and Facebook posts, among other provisions.
Marlowe maintains that social media is all about transparency.
“The law needs to be updated to make it clear that whoever is doing that, whether it's an executive branch agency or a private agency, engaging in lobbying activities on social media ought to be covered by the disclosure act,” he said.
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1976: The EPA provides a California environmental nonprofit with government-paid stamped envelopes to distribute water quality newsletters.
1996: The agency disseminates fact sheets to counter Contract With America provisions to overturn risk assessment as part of regulatory reform.
2003: It pays for ads to run on Hispanic radio stations to promote an initiative under President George W. Bush, called Clear Skies, to reduce emissions of mercury and oxides of nitrogen and sulfur through cap-and-trade programs, which died in a gridlocked Senate Environment and Public Works Committeee.
2015: The EPA uses Facebook, Twitter and Tumblr to promote the Clean Water Rule.
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