The Environmental Protection Agency violated federal laws prohibiting the use of lobbying and “covert propaganda” on social media, according to a new U.S. government report.
The Government Accountability Office found that the EPA illegally used social media to solicit public support for a rule intended to redefine the scope of its jurisdiction over the nation’s waters.
The GAO concluded in a 26-page opinion that the EPA broke the law by using Thunderclap—an online platform that allows users to donate tweets and social media posts—to promote its Clean Water Rule (CWR), also known as the Waters of the United States (WOTUS) rule. The CWR is a response from the Obama administration to recent Supreme Court rulings limiting the EPA’s jurisdiction.
“Clean water is important to me. I support EPA’s efforts to protect it for my health, my family, and my community.”
Finalized in May, the Clean Water Rule has been promoted by the Obama administration as essential to protecting up to “60 percent of the nation’s streams and millions of acres of wetlands.” Opponents have criticized it as government overreach. According to the EPA, the rule would ensure “that waters protected under the Clean Water Act are more precisely defined, more predictable, easier for businesses and industry to understand, and consistent with the law and the latest science.”
“About 117 million Americans—one in three people—get drinking water from streams that were vulnerable to pollution before the Clean Water Rule,” the agency says on its website.
In September 2014, the EPA used Thunderclap to corral hundreds of Twitter accounts to spread the message: “Clean water is important to me. I support EPA’s efforts to protect it for my health, my family, and my community.” A link contained in the message connected users to the EPA’s website about the proposed rule.
The GAO’s report states that the use of Thunderclap, along with the agency’s promotion of hashtags #DitchtheMyth and #CleanWaterRules, violated laws against government agency use of “covert propaganda” and “grassroots lobbying” against the public.
In a letter to the GAO, Avi Garbow, the EPA’s general counsel, said the agency had evaluated its social media usage and found it “an appropriately far-reaching effort to educate the American public about an important part of E.P.A.’s mission: protecting clean water,” the New York Times reported on Tuesday.
The GAO’s ruling is part of a long-running controversy rooted in the EPA’s interpretation of the CWA; specifically, which smaller bodies of water, standing or flowing, fall under the agency’s regulatory purview—what the law refers to as “the waters of the United States.”
For over a hundred years, the Supreme Court has upheld the federal government’s authority to regulate the nation’s “navigable waters”—bodies of water used for interstate business or transportation—under the Commerce Clause of the U.S. Constitution.
The Supreme Court decided in two recent cases—in 2001 and 2006—that the EPA imposed unduly broad definitions to extend its jurisdiction.
In Rapanos v. United States, for instance, the Supreme Court ruled in a 5-4 decision against an interpretation of “navigable waters” employed by the EPA to prevent a landowner from building a shopping mall atop three wetland areas.
In the plurality opinion, Justice Antonin Scalia argued that in order for “wetlands” to fall under the EPA’s jurisdiction, the water must have a “continuous surface connection” with the nation’s “navigable waters.” In a concurring, but separate opinion, Justice Anthony Kennedy insisted that a “significant nexus” between the wetlands and the waters must exist.
Four dissenting justices upheld a broader interpretation of the CWA for the purpose of protecting the nation’s waters from pollution.
H/T The New York Times | Illustration via Max Fleishman