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By Sam Pearson
Oct. 31 — A literal interpretation of federal law restricting improper grass-roots lobbying would hamstring what U.S. Chemical Safety Board members can do in pursuit of the board’s mission, some lawyers—and the safety board—contend.
CSB, like some other agencies, has no regulatory authority and can only advocate for their own safety recommendations, as generated by investigations into chemical incidents.
The issue came to light amid news reports reporting that CSB Board Member Rick Engler improperly coordinated with a labor union during California regulators’ development of new safety standards for oil refineries. The dispute hinges on how two federal laws, including a century-old law, the Anti-Lobbying Act of 1919, applies to CSB.
The Anti-Deficiency Act bars agencies from spending federal funds in ways contrary to congressional spending bills, which include riders prohibiting funding grass-roots advocacy.
The other relevant statute is the Anti-Lobbying Act, which prohibits federal employees from lobbying Congress to take action on pending legislation.
A media report did not claim Engler’s e-mail itself constituted grassroots lobbying, but said the wording suggests he improperly facilitated grass-roots lobbying at some point.
While a literal reading of the Anti-Lobbying Act would encompass career and political appointees and restrict lobbying aimed at a wider range of agencies, it’s never been interpreted that way. Rather, according to a Public Citizen fact sheet, the Department of Justice has interpreted it more narrowly “due to constitutional concerns.”
Kenneth Gold, the director of the Government Affairs Institute at Georgetown University, told Bloomberg BNA Oct. 17 Engler “is not subject to the Anti-Lobbying Act as a Senate-confirmed official, right off the top.”
Gold said “working with” a union in one e-mail does not seem to meet the legal definition of lobbying, Gold said, adding that there is no legal requirement barring Engler from discussing policy with outside groups.
No such prohibitions exist on contacting Congress regarding other actions, like pending nominations, or on federal agencies weighing in on pending state action, Gold said.
Tom Susman, the director of the governmental affairs office at the American Bar Association, took a more exact interpretation. Susman said “it sounds like” Engler violated the law as written, though he cautioned he needed more facts to offer a legal opinion.
Gold said in an e-mail that he believes Susman was “incorrect,” citing a 2003 Interior Department memorandum and U.S. Department of Agriculture guidance that the law is “framed in broad terms” but “in practice, these statutes have not been applied literally.”
News reports claimed the U.S. Environmental Protection Agency’s Office of the Inspector General had opened an investigation into Engler’s reaching out to unions on a California refinery regulation. California finalized the rules in July.
He was working on the refinery issue because CSB issued nine safety recommendations to California—including tougher regulations to prevent future safety incidents in the sector—after its investigation of a 2012 fire at a Chevron USA refinery in Richmond, Calif.
OIG spokesman Jeffrey Lagda said in an e-mail to Bloomberg BNA that the media reports’ "characterization that the OIG ‘opened an investigation’ is erroneous.”
Asked about the issue at a business meeting Oct. 20, CSB Chairperson Vanessa Allen Sutherland said, “We take all compliance very seriously, but did not feel that, at this point, there was something to be overly concerned about.”
Engler said at the meeting he was “not aware of any actual investigation by the inspector general.”
Advocating on behalf of CSB initiatives is part of board member’s duties, and many have connections to academics, unions and industry organizations forged over decades in the field.
A strict interpretation of the Anti-Lobbying Act would in many ways alter the CSB’s function. In addition, other agencies like the National Transportation Safety Board and the Defense Nuclear Facility Safety Board play similar watchdog roles for different industries.
In the statement, the CSB noted that under its Drivers of Critical Safety Change program board members are tasked with advocating for the improvements, including by “engaging in written and verbal communication with recommendation recipients, other interested parties and important stakeholders on behalf of items” on the list. The agency has issued 780 safety recommendations since it was established—38 to federal agencies, 45 to state agencies and 21 to local agencies, while another 38 recommendations were for enforcement policies.
Given the laws’ limited use and Engler’s role at CSB, it’s not likely he will see legal repercussions from the allegation, said Craig Holman, a government affairs lobbyist at Public Citizen.
“One could reasonably expect nothing would happen in this case,” Holman told Bloomberg BNA in an e-mail Oct. 20.
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