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Critics Hear E.P.A.’s Voice in ‘Public Comments’ By ERIC LIPTON and CORAL DAVENPORT
MAY 18, 2015

WASHINGTON — When the Environmental Protection Agency proposed a major new rule intended to protect the nation’s drinking water last year, regulators solicited opinions from the public. The purpose of the “public comment” period was to objectively gauge Americans’ sentiment before changing a policy that could profoundly affect their lives.

Gina McCarthy, the agency’s administrator, told a Senate committee in March that the agency had received more than one million comments, and nearly 90 percent favored the agency’s proposal. Ms. McCarthy is expected to cite those comments to justify the final rule, which the agency plans to unveil this week.

But critics say there is a reason for the overwhelming result: The E.P.A. had a hand in manufacturing it.

In a campaign that tests the limits of federal lobbying law, the agency orchestrated a drive to counter political opposition from Republicans and enlist public support in concert with liberal environmental groups and a grass-roots organization aligned with President Obama.

The Obama administration is the first to give the E.P.A. a mandate to create broad public outreach campaigns, using the tactics of elections, in support of federal environmental regulations before they are final.

The E.P.A.’s campaign highlights the tension between exploiting emerging technologies while trying to abide by laws written for another age.

Federal law permits the president and political appointees, like the E.P.A. administrator, to promote government policy, or to support or oppose pending legislation.

But the Justice Department, in a series of legal opinions going back nearly three decades, has told federal agencies that they should not engage in substantial “grass-roots” lobbying, defined as “communications by executive officials directed to members of the public at large, or particular segments of the general public, intended to persuade them in turn to communicate with their elected representatives on some issue of concern to the executive.”

Late last year, the E.P.A. sponsored a drive on Facebook and Twitter to promote its proposed clean water rule in conjunction with the Sierra Club. At the same time, Organizing for Action, a grass-roots group with deep ties to Mr. Obama, was also pushing the rule. They urged the public to flood the agency with positive comments to counter opposition from farming and industry groups.

The results were then offered as proof that the proposal was popular.

“We have received over one million comments, and 87.1 percent of those comments we have counted so far — we are only missing 4,000 — are supportive of this rule,” Ms. McCarthy told the Senate Environment and Public Works Committee in March. “Let me repeat: 87.1 percent of those one-plus million are supportive of this rule.”

But critics said environmental groups had inappropriately influenced the campaign — just as environmentalists complained that the energy industry improperly drove policy during the George W. Bush administration.

At minimum, the actions of the agency are highly unusual. “The agency is supposed to be more of an honest broker, not a partisan advocate in this process,” said Jeffrey W. Lubbers, a professor of practice in administrative law at the American University Washington College of Law and the author of the book “A Guide to Federal Agency Rulemaking.”

“I have not seen before from a federal agency this stark of an effort to generate endorsements of a proposal during the open comment period,” he said.

Senator James M. Inhofe, Republican of Oklahoma and chairman of the environment committee, is holding a hearing on Tuesday to examine the proposed rule. “There is clear collusion between extreme environmental groups and the Obama administration in both developing and promoting a host of new regulations,” he said.

The most contentious part of the E.P.A.’s campaign was deploying Thunderclap, a social media tool that spread the agency’s message to hundreds of thousands of people — a “virtual flash mob,” in the words of Travis Loop, the head of communications for E.P.A.’s water division.

The architect of the E.P.A.’s new public outreach strategy is Thomas Reynolds, a former Obama campaign aide who was appointed in 2013 as an associate administrator. “We are just borrowing new methods that have proven themselves as being effective,” he said.

But industry critics said the agency’s actions might be violating federal lobbying laws.

The proposed rule tries to ensure the safety of drinking water by expanding or at least clarifying the federal government’s jurisdiction to prevent the pollution of wetlands and streams that feed water sources.

The E.P.A.’s tactics in supporting the rule are clearly designed to move public opinion, at a time when Congress was considering legislation to block the agency from putting the rule into effect.

“The agency has relentlessly campaigned for the rule with tweets and blogs, not informing the public about the rule but influencing the public to advocate for the rule,” said Ellen Steen, general counsel at the American Farm Bureau Federation. “That is exactly what the Anti-Lobbying Act is meant to prevent.”

The strategy to build public support for the clean water rule builds on the agency’s promotion of its climate change policy. The White House hired Mr. Reynolds, a seasoned political operative, to run the climate change outreach effort after he directed regional media operations for the president’s 2012 re-election.

He set off what he called a “flood-the-zone approach” to push back against opponents of the E.P.A.’s climate rule in the Republican Party and the coal industry, injecting the digital savvy of Mr. Obama’s presidential campaigns into the agency’s effort. “There is a huge premium on social media,” Mr. Reynolds said. “Facebook, YouTube, Twitter, Instagram, Vine, Pinterest.”

Jeffrey R. Holmstead, an energy industry lobbyist and an E.P.A. deputy in the Bush administration, said the E.P.A. was “using campaign and advocacy strategies to promote a regulatory action.” But he and other experts said the agency’s actions did not appear to cross a legal line.

Obama administration officials insist they had to counter industry opponents to the climate change and water rules who were engaged in their own campaign to undermine them.

“The fact that there’s a very well-funded campaign means we needed a strong and sustained communications effort,” said Heather Zichal, Mr. Obama’s former senior climate adviser.

In March last year, when the E.P.A. proposed the clean water regulation, opponents hit back fast. The American Farm Bureau kicked off a public relations effort summarized by its Twitter nickname: Ditch the Rule.

The Farm Bureau was supported by home builders, the fertilizer and pesticide industries, oil and gas producers and a national association of golf course owners who collectively called for the E.P.A. to revamp or withdraw its proposal. That demand was echoed by more than 230 members of the House.

As the opposition mounted, leaders of major environmental groups held closed-door meetings with senior E.P.A. officials as the rule was being written, participants in these meetings said. 

Mr. Reynolds doubled down on a social media campaign to defend the water rule.

The agency created its own Twitter hashtag,#DitchtheMyth, which Ms. McCarthy publicized, backed up with YouTube videos and Facebook postings that countered the criticism. But the campaign also specifically urged support for the effort — directing the public to the E.P.A. website, where the rule was explained and a prominent tab invited readers to leave a comment. Mr. Reynolds insisted that the agency specifically did not urge the public to contact Congress.

Organizing for Action also urged members to get involved, a message that the E.P.A. reinforced. Major environmental groups, including the Sierra Club and the Natural Resources Defense Council, became “thunderous supporters” of the effort.

The Thunderclap effort was promoted in advance with the E.P.A. issuing a news release and other promotional material, including a photograph of a young boy drinking a glass of water.

“Clean water is important to me,” the message said. “I want E.P.A. to protect it for my health, my family and my community.”

In the end, the message was sent to an estimated 1.8 million people, Thunderclap said.

In a separate appeal, Mr. Loop, of the E.P.A., wrote a blog post on the agency’s website with pictures of himself, his two children and his dog swimming in waters near his Maryland home, and ending with a pitch.

He urged anyone reading the post to “spread the word about how much it matters to you and your family and friends.”

“Here is an easy way to do that,” he wrote. “Take a photo holding this #CleanWaterRules sign. Post it to Facebook, Twitter or Instagram with #CleanWaterRules and give your reason. Encourage family and friends to do the same.”

Those efforts to prompt people to support the rule are now being cited as evidence that the E.P.A. has illegally engaged in so-called grass-roots lobbying.

“E.P.A. Office of Water’s Twitter account has essentially become a lobbyist for the proposal,” wrote Kevin P. Kelly, chairman of the National Association of Home Builders, in a letter to the E.P.A. protesting the role the agency has played in advocating its clean water proposal.

Gov. Dennis M. Daugaard of South Dakota and some members of Congress have filed protests using almost exactly the same language, suggesting that the industry players are coordinating their response.

In its previous opinions to federal agencies, the Justice Department has indicated that “grass-roots” efforts are most clearly prohibited  if they are related to legislation pending in Congress and are “substantial,” which it defined as costing about $100,000 in today’s dollars — a price tag that the E.P.A.’s efforts on the clean water rule almost certainly did not reach if the salaries of the agency staff members involved are not counted.

Officials at the E.P.A. strongly defend their work — insisting that they did not violate the Anti-Lobbying Law because they never explicitly urged the public to lobby Congress, just to express their support for the plan in a public way.

“We are well within our authority to educate the American people about the importance of what E.P.A. is doing to act on climate change and protect public health,” Mr. Reynolds said. “There is a very clear line, and we never, ever cross it.”

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