EPA broke law by using social media to push water rule, auditor finds

WASHINGTON — The Environmental Protection Agency engaged in "covert propaganda" in violation of federal law when it blitzed social media to urge the general public to support President Barack Obama's controversial rule intended to better protect the nation's streams and surface waters, congressional auditors have concluded.

The ruling by the Government Accountability Office, which opened its investigation after a report in The New York Times on the agency's practices, served as a cautionary tale to federal agencies about the perils of getting too active in using social media to push a cause. Federal laws prohibit agencies from engaging in lobbying and propaganda.

It also emerged as Republican leaders moved to block the so-called Waters of the United States clean-water rule through an amendment to the enormous spending bill expected to pass in Congress this week.

"GAO's finding confirms what I have long suspected, that EPA will go to extreme lengths and even violate the law to promote its activist environmental agenda," Sen. Jim Inhofe, R-Okla., the chairman of the Senate Environment and Public Works Committee who is pressing to block the rule, said in a statement Monday. "EPA's illegal attempts to manufacture public support for its Waters of the United States rule and sway congressional opinion regarding legislation to address that rule have undermined the integrity of the rule-making process and demonstrated how baseless this unprecedented expansion of EPA regulatory authority really is."

The EPA rolled out a social media campaign on Twitter, Facebook, YouTube and even on more innovative tools such as Thunderclap to counter opposition to its water rule, which imposes new restrictions on how land near certain surface waters can be used. The agency said the rule would prevent pollution in drinking water sources. Farmers, business groups and Republicans have called the rule flagrant government overreach.

But in the EPA's counterattack, the GAO says agency officials engaged in "covert propaganda" on behalf of Obama's water policy by concealing the fact that its social messages were coming from the EPA. The agency essentially became lobbyists for its cause by including links that directed people to advocacy organizations.

Federal agencies are allowed to promote their own policies, but they are not allowed to engage in propaganda, which means covert activity intended to influence the American public. They also are not allowed to use federal resources to conduct so-called grass-roots lobbying — urging the American public to contact Congress to take a certain kind of action on pending legislation.

As it promoted the Waters of the United States rule, also known as the Clean Water Rule, the EPA violated both of these laws, a 26-page report signed by Susan A. Poling, the general counsel to the GAO, concluded, in an investigation requested by the Senate Environment and Public Works Committee.

"EPA appealed to the public to contact Congress in opposition to pending legislation in violation of the grass-roots lobbying prohibition," the report says.

In a letter to the GAO as the review was underway, Avi S. Garbow, the EPA's general counsel, said the agency had looked back at its social media campaign and concluded that it had complied with all federal laws, calling it "an appropriately far-reaching effort to educate the American public about an important part of EPA's mission: protecting clean water."

The rule in question has been adopted by the agency, but its implementation was suspended nationally in October by a federal appeals court, after opponents of the plan, who argue that it vastly increases the control of the federal government over land near surface waters, filed a lawsuit challenging it.

The GAO report details two specific violations that took place as the EPA was preparing to issue the final rule. The first violation involved the Thunderclap campaign in September 2014, in which the EPA used a new type of social media tool to quickly reach out to 1.8 million people to urge them to support the clean-water proposal. Thunderclap, described as an online flash mob, allows large groups of people to share a single message together at the same time.

"Clean water is important to me," the Thunderclap message said. "I support EPA's efforts to protect it for my health, my family, and my community."

The effort violated federal law, the GAO said, because as it ricocheted through the Internet, many people who received it would not have known that it was written by the EPA, making it covert propaganda.

The agency separately violated the anti-lobbying law when one of its public affairs officers wrote a blog post saying he was a surfer and did not "want to get sick from pollution," and included a link button to an advocacy group urging the public to "tell Congress to stop interfering with your right to clean water."

The GAO has instructed the EPA to find out how much money was spent by staff involved in these violations and to report back.

Such findings by the GAO are infrequent but not unprecedented. The GAO concluded similarly that the Centers for Medicare and Medicaid violated the anti-propaganda act in 2004 when it covertly paid for news videos distributed to television stations without disclosing that it had funded the work. The Education Department, in 2005, was also found to have violated the same law when it hired a public relations firm to covertly promote the No Child Left Behind Act of 2001.

Thomas Reynolds, who as communications director at the EPA moved to add political campaign-style tactics to the agency's public relations operation, recently moved to the White House. Liz Purchia, an EPA spokeswoman, said the agency had not yet seen the report, which was issued Monday morning, and could not comment on it yet.