Armando Benincasa
Environmental, Energy & Resources
USEPA Social Media Campaign in Support of WOTUS Rule Deemed Unlawful
In a letter dated December 14, 2015, from the Government Accountability Office (GAO) to Senator James Inhofe, Chairman of the Committee on Environment and Public Works, the GAO takes the social media campaign adopted by the United States Environmental Protection Agency (USEPA) in support of its Waters of the United States (WOTUS) rule to task. Specifically, the GAO alleges that USEPA engaged in "covert propaganda" and violated federal law when it blitzed social media to urge the public to support the rule.
While specifically addressing the actions of USEPA, the opinion by the GAO also provides a warning to other federal agencies, many of whom use social media to support its programs. The GAO found the action of the agency violated provisions of the 2014 Financial Services and General Government Appropriation Act and the 2015 Department of Interior, Environment, and Related Agencies Appropriations Act which prohibit agencies from using appropriations in support or opposition to pending legislation and prohibited the use of appropriations for grass roots lobbying efforts.
The GAO specifically addressed USEPA's use of Twitter, Facebook and You Tube to post blogs and videos and other social media engines such as Thunderclap to counter opposition arguments against the rule. Among issues which were cited by the GAO report, USEPA's campaign included a series of posts and videos which encouraged "friends" of the rule to share and disseminate the information to the more general public and efforts by the agency to partner with other social media engines to support and spread USEPA's social media message beyond the agency and the individual social media engines without identifying the government as the source of the information. Further, USEPA made available links from government web sites to blogs and interest groups supportive of the rule and which encouraged the lobbying of Congress to defeat efforts to oppose the rule.
Specifically, the agency's use of Thunderclap allowed it to spread its media campaign to 1.8 million people and urged them to support the WOTUS rule and clean water. The message stated that, "Clean water is important to me, I support E.P.A.'s efforts to protect it for my health, my family and my community."
The effort violated federal law because those receiving the message would not have necessarily known that it was written by USEPA making it a type of covert propaganda.
Also, USEPA blog articles, and one specifically cited written by Travis Loop, a public affairs officer with USEPA, indicated that he was a surfer and did not "want to get sick from pollution." The post though included a link button to a third party advocacy group that discussed the danger that polluted water posed to surfers and directed readers to take action and contact Congress and tell them to stop interfering with your right to clean water.
GAO found that such use of social media to promote propaganda and lobbying efforts, regardless of whether the lobbying was a direct request from USEPA or part of a third party effort which linked to USEPA, was in direct contravention of federal laws.
While the GAO's report and letter is unlikely to lead to civil or criminal penalties, the report sounds a cautionary warning to federal agencies in the age of social media. The White House has formed the Office of Digital Strategy, which promotes the administration's agenda on Twitter, Facebook, Medium and other social sites. It is unknown how this GAO opinion may impact the operations of the office.
USEPA has maintained its position that the agency's actions did not violate the federal prohibitions against lobbying and distribution of propaganda, but rather labeled its efforts as an educational campaign.
Enforcement of the WOTUS rule remains suspended by order of the Sixth Circuit Court of Appeals pending that court's review of its jurisdiction to hear the legal challenge to the rule brought by states and various industry groups and a final ruling on the legality of the rule.
© Steptoe & Johnson PLLC. All Rights Reserved.
Future Auto is the Buzz of CES
BRAG Biobased Products Blog: January 10, 2020
2020 Prediction: Is now the time for regulations requiring energy efficiency in software?
Telecom Alert - CBRS Update: Additional ESC Capabilities Approved; 5.9 GHz Band Rulemaking; 3.1-3.55 GHz Band Rulemaking; New Jersey 911 Funding Bill - Vol. XVI, Issue 48
Armando Benincasa concentrates his practice in the areas of energy law, environmental law, environmental litigation, administrative law, government affairs and lobbying. His practice consists of cases involving permitting and regulatory requirements for natural resources, including coal and oil and gas, solid waste, water resources, underground storage tanks, voluntary remediation, and the drafting of rules and statutes related to the environment. He has extensive experience in governmental matters, as well as in representing energy companies before state agencies and the West...
armando.benincasa@steptoe-johnson.com
www.steptoe-johnson.com