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Top Committee Democrats Request GAO Inquiry into EPA’s Misuse of Taxpayer Dollars to Undermine Clean Water Rule

Oct 12, 2017
Press Release

Top Committee Democrats Request GAO Inquiry into EPA’s Misuse of Taxpayer Dollars to Undermine Clean Water Rule

Washington, D.C. – Today, Ranking Member of the House Committee on Transportation and Infrastructure Peter DeFazio (D-OR), Ranking Member of the House Appropriations Subcommittee on Interior, Environment and Related Agencies Betty McCollum (D-MN), Ranking Member of the House Committee on Energy and Commerce Frank Pallone, Jr. (D-NJ), and Ranking Member of the House Committee on Oversight and Government Reform Elijah Cummings (D-MD) sent a letter to the Comptroller General of the U.S. Government Accountability Office (GAO) Gene L. Dodaro, requesting a legal determination of whether the U.S. Environmental Protection Agency (EPA) violated the Antideficiency Act, as well as other federal laws, in using taxpayer dollars for lobbying or propaganda purposes.

In August 2017, EPA Administrator Scott Pruitt appeared in a video advertisement for the National Cattleman’s Beef Association (NCBA) urging farmers and ranchers to speak up on EPA’s efforts to withdraw an Obama-era, clean water protection rule called the “Waters of the United States” (WOTUS). In addition, the video displays a graphic encouraging viewers to visit the website of the NCBA “to file your WOTUS comments today!” NCBA’s website includes a number of hyperlinks urging viewers to directly contact their elected officials in Congress and urge further Congressional action to overturn the Clean Water Rule.

“We are deeply troubled that these recent EPA actions are the latest examples of EPA’s inappropriate use of taxpayer resources. We request that GAO provide a legal opinion that addresses whether the Administrator’s appearance in the promotional NCBA video in connection with the hyperlinked material on the NCBA website complies with the relevant limitations on the use of appropriated funds for lobbying and publicity or propaganda purposes and the Antideficiency Act. We appreciate your immediate attention to this matter,” the Members wrote.

Click here and see below to read today’s letter.

 

October 12, 2017

 

The Honorable Gene L. Dodaro

Comptroller General

U.S. Government Accountability Office

 

Dear Mr. Dodaro:

We write to request a legal opinion from the U.S. Government Accountability Office (GAO) regarding whether the U.S. Environmental Protection Agency (EPA) violated statutory prohibitions on the use of appropriated funds for lobbying and publicity or propaganda purposes as well as the Antideficiency Act.

On or about August 16, 2017, the EPA Administrator appeared in a promotional video of the National Cattlemen’s Beef Association (NCBA) in which he urged farmers and ranchers to provide comments on EPA’s proposed rule to withdraw a 2015 rule concerning the “Waters of the United States” (WOTUS).[1]  In the video, which features the Administrator meeting with farmers and ranchers in Colorado, the Administrator provides that his visit is part of EPA’s “state action tour”.  At its conclusion, the video shows grazing land with a graphic overlay that encourages viewers to, “Visit BeefUSA.org to file your WOTUS comments today!”  That NCBA webpage, BeefUSA.org, includes a hyperlink to a press release entitled, “Take Action Now- Tell EPA to Kill WOTUS Today![2]  In addition, there are hyperlinks from that homepage to a “Call to Action” page and a “Contact your Elected Officials” page.[3]  With respect to WOTUS rulemaking, the site contains a page that asks visitors to “Urge Congress to Stop EPA’s Unlawful Expansion” and to “Let your Congressional representatives know that they should not allow EPA and the Corps to trample on your Constitutional rights.”[4]

Based on this information, we are seeking a legal opinion as to whether the Administrator’s appearance in the promotional NCBA video in connection with the hyperlinked material on the NCBA website complies with the relevant statutory prohibitions on the use of appropriated funds for lobbying and publicity or propaganda purposes and the Antideficiency Act.

A recurring government-wide provision found in annual appropriations acts, section 715 of the Financial Services and General Government Appropriations Act, 2017 provides:

No part of any funds appropriated in this or any other Act shall be used by an agency of the executive branch, other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes, and for the preparation, distribution or use of any kit, pamphlet, booklet, publication, radio, television, or film presentation designed to support or defeat legislation pending before the Congress, except in presentation to the Congress itself.[5]

Additionally, section 401 of the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2017, provides:

No part of any appropriation contained in this Act shall be available for any activity or the publication or distribution of literature that in any way tends to promote public support or opposition to any legislative proposal on which Congressional action is not complete other than to communicate to Members of Congress as described in 18 U.S.C. 1913.[6]

These provisions prohibit the use of appropriated funds for indirect or grassroots lobbying in support of, or in opposition to, pending legislation.  The provisions are violated where there is pending legislation and a clear appeal by an agency for citizens to contact Members of Congress.  GAO previously determined that EPA violated the recurring grassroots lobbying prohibition where EPA’s hyperlinks to external webpages, containing link buttons to contact Members of Congress, were found to be appeals urging the public to contact Members in opposition to pending legislation, in part because EPA had associated itself with the linked content.[7]

Here, EPA, by prominently featuring the Administrator in an online NCBA video that ends by encouraging the public to visit the NCBA’s website, associated itself with that website and the hyperlinked pages therein that urged the public to contact Congress regarding pending WOTUS rulemaking.  While no specific legislation is mentioned in the NCBA video, the hyperlinked webpages contain a separate video that specifically outlines NCBA’s strategy to challenge the WOTUS rulemaking at every opportunity, including the courts, through the administrative rulemaking process, and in Congress, including advocating for language in the annual appropriations bills for the U.S. Army Corps of Engineers and EPA to “repeal the 2015 rule without getting bogged down in activist litigation”.[8]  By aligning the Administrator so prominently with the messaging and video of an organization, such as NCBA, with a long-term history of opposition to the rule and repeated efforts urging Congress to overturn the rule[9], the messages of the Administrator and NCBA become inescapably intertwined, and it is impossible to discern where, if at all, one message stops and the other starts.

In addition, the Administrator may have violated the recurring prohibitions on the use of appropriated funds for unauthorized publicity or propaganda purposes.  Section 718 of the Financial Services and General Government Act, 2017 provides:

No part of any appropriation contained in this or any other Act shall be used directly or indirectly, including by private contractor, for publicity or propaganda purposes within the United States not heretofore authorized by Congress. 

The purpose of the publicity or propaganda prohibition is to ensure that the government identifies itself as the source of its communications.  GAO has interpreted this language to restrict, among other things, “covert propaganda”, defined as “communications that fail to disclose the agency’s role as the source of the information.”[10]  In its 2015 opinion, GAO concluded that “[t]he critical element of covert propaganda is the agency’s concealment from the target audience of its role in creating the material” and cited two previous opinions by GAO, stating that “[a] critical element of this violation is the concealment of, or failure to disclose, the agency’s role in sponsoring the material” and that “[f]indings of propaganda are predicated upon the fact that the target audience could not ascertain the information sources.”[11] For example, GAO has found “covert propaganda” where messages are specifically designed for transmission through an intermediary, including instances where the Small Business Administration prepared editorials for newspapers to print for target audiences[12] and where EPA used social media to convey a particular message regarding the WOTUS rulemaking.[13]  In 2015, GAO found that EPA violated the publicity or propaganda provision, in part because EPA identified a particular message it wanted to convey and sought supporters to deliver that message, essentially constructing a message intended for a third party to distribute.

In this instance, EPA used appropriated funds to feature the Administrator prominently in the advocacy video of a third party. In the video, potentially initiated at the request of EPA, [14] the Administrator states that, by re-defining the term “Waters of the United States”, as understood under the Clean Water Act, “we’re trying to fix the challenges from the 2015 rule, where the Obama administration reimagined their authority under the Clean Water Act and defined a water of the United States as being a puddle, a dry creek bed and ephemeral drainage ditches across this country.”[15]  EPA effectively constructed a message, delivered by the Administrator, and intended for the NCBA to distribute that message through an online video.  Additionally, the viewing audience may be unable to discern the source of that message, because in the video, the EPA Administrator’s image, name, and title appear alongside the name and logo of the NCBA.[16]

In conclusion, we are deeply troubled that these recent EPA actions are the latest examples of EPA’s inappropriate use of taxpayer resources.  We request that GAO provide a legal opinion that addresses whether the Administrator’s appearance in the promotional NCBA video in connection with the hyperlinked material on the NCBA website complies with the relevant limitations on the use of appropriated funds for lobbying and publicity or propaganda purposes and the Antideficiency Act.  We appreciate your immediate attention to this matter.  If you have any questions regarding this request, please contact the Democratic Staff of the Committee on Transportation and Infrastructure at (202) 225-0060.

Sincerely,

 

PETER DeFAZIO                                                         BETTY McCOLLUM

Ranking Member                                                          Ranking Member

Committee on Transportation                                        Committee on Appropriations

and Infrastructure                                                         Subcommittee on Interior,

                                                                                    Environment, and Related Agencies

                                                           

 

 

 

 

FRANK PALLONE, JR.                                               ELIJAH E. CUMMINGS

Ranking Member                                                          Ranking Member

Committee on Energy and Commerce                            Committee on Oversight and Government Reform

 

cc:        The Honorable Scott Pruitt, Administrator, U.S. Environmental Protection Agency

 

[1] National Cattlemen’s Beef Association video, entitled “EPA Administrator Scott Pruitt Urges Ranchers to File WOTUS Comments, https://www.youtube.com/watch?v=vTVd54WyhDQ&hd=1, last visited

Oct. 3, 2017.  See also Wittenberg, Ariel, “Pruitt stars in industry video promoting WOTUS repeal”, published Aug. 21, 2017 at https://www.eenews.net/stories/1060058985.

[2] http://www.beefusa.org/newsreleases1.aspx?newsid=6381, dated Aug. 1, 2017, last visited

Oct. 6, 2017.

[5] H.R. 5485, 114th Congress (2016).

[6] H.R. 5538, 144th Congress (2016).

[7] B-326944, Dec. 14, 2015.

[8] National Cattlemen’s Beef Association video, entitled “Cattlemen to Cattlemen – Japan’s Tariff & WOTUS”, https://www.youtube.com/watch?v=R7t9kn2D6CQ, last visited Oct. 10, 2017.  As of the writing of this letter, the U.S. House of Representatives has considered two appropriations bills for fiscal year 2018 that include language seeking to legislatively withdraw the 2015 Clean Water Rule – section 108 of the Energy and Water Appropriations Act, 2018 (H.R. 3266) and section 431 of Division A of the Make America Secure and Prosperous Appropriations Act, 2018 (H.R. 3354).

[9] See also, “NCBA Urges House to Support Disapproval of WOTUS”, http://www.beefusa.org/newsreleases1.aspx?newsid=5545&utm, last visited Oct. 10, 2017.

[10] B-320482, Oct. 19, 2010.

[11] B-326944, Dec. 14, 2015, citing from B-305368, Sept. 30, 2005 and B-302710, May 19, 2004.

[12] B-223098, Oct. 10, 1986.

[13] B-326944, Dec. 14, 2015.

[14] See National Cattlemen’s Beef Association video, entitled “Cattlemen to Cattlemen – Japan’s Tariff & WOTUS”, https://www.youtube.com/watch?v=R7t9kn2D6CQ, last visited Oct. 10, 2017, wherein NCBA Environmental Counsel, Scott Yager, notes how the NCBA video was the “product of the EPA, actually, reaching out to NCBA to find a ranch out near Denver to go visit with and to kind of hear from cattle producers about the WOTUS rule and what they want to see in a replacement and a repeal.”  Quoted text appears at 5:45.

[15]  National Cattlemen’s Beef Association video, entitled “EPA Administrator Scott Pruitt Urges Ranchers to File WOTUS Comments”, https://www.youtube.com/watch?v=vTVd54WyhDQ&hd=1, last visited

Oct. 3, 2017.

[16] The text appears at 0:20.