Written
by M. Sean High – Staff Attorney
On
December 14, 2015, the U.S. Government Accountability Office (GAO) (an
independent, nonpartisan federal agency charged with investigating how the
federal government spends taxpayer dollars) issued a report declaring that the U.S.
Environmental Protection Agency (EPA) illegally used “certain social media platforms
in association with its ‘Waters of the United States’ (WOTUS) rulemaking in
fiscal years (FY) 2014 and 2015 [and as a result] violated publicity or
propaganda and anti‑lobbying
provisions contained in appropriations acts.”
For
historical context, in March 2014, EPA and the Army Corps of Engineers issued a
proposed rule in an attempted to define which waters in the United States fell
under control of the federal Clean Water Act [79 Fed. Reg. 22188 (April 21,
2014). Significantly, from February 2014
until July 2015, EPA admittedly used social media in connection with WOTUS for
the purpose of 1) providing clarity about the rule; 2) providing information
demonstrating the rule’s relevance; 3) providing an opportunity to engage the
public; and 4) correcting any misinformation about the rule.
Under
Section 718 of the Financial Services and General Government Appropriations
Act, 2014 (H.R. 5016), government agencies, departments and corporations are
prohibited from using government funds “for propaganda and publicity purposes
not authorized by Congress.” Furthermore, Section 715 of the Financial Services
and General Government Appropriations Act, 2015 (H.R. 2995) “[p]rohibits an
agency of the executive branch from using funds for publicity or propaganda
purposes and for the preparation or distribution of materials designed to
support or defeat legislation pending before Congress.” According to GAO, Section 715 “prohibits
indirect or “grassroots lobbying” in support of, or in opposition to, pending
legislation.”
GAO
stated that portions of EPA’s social media activities in connection to WOTUS
constituted covert propaganda in violation of Section 718 of H.R. 5016 and
grassroots lobbying in violation of Section 715 of H.R. 2995. Ultimately, GAO determined that “[b]ecause
EPA obligated and expended appropriated funds in violation of specific
prohibitions…EPA violated the Antideficiency Act, 31 U.S.C. § 1341(a)(1)(A), as
the agency’s appropriations were not available for these prohibited purposes.”
As a result GAO asserted that “EPA should report the violation to the President
and Congress, with a copy to the Comptroller General, as required by the
Antideficiency Act” and “should determine the cost associated with the
prohibited conduct and include the amount in its report of its Antideficiency
Act violation.”
