EPA Coal Rule Skirts Law: 10 Percent of Comments From Obama’s OFA

A bulldozer works a coal mound at the Appalachian Electric Power coal-fired Big Sandy Power Plant June 3, 2014 in Cattletsburg, Kentucky. New regulations on carbon emissions proposed by the Obama administration have reportedly angered politicians on both sides of the aisle in energy-producing states such as Kentucky and West …
Luke Sharrett/Getty Images

In the western United States, a huge toxic waste spill caused by the EPA is spewing forth, polluting rivers and threatening lives and livelihoods.

But while the EPA itself causes actual pollution, it’s also attempting to subvert the administrative law rule-making process. Political insiders are working to generate millions of astroturfed comments from Barack Obama’s former Presidential campaign operation, now called Organizing for Action, and left wing environmental groups. The latest instance of this propaganda operation was seen in the rule making process that resulted in the recently finalized “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” rule.

In its final rule, the EPA says it received more than 4.3 million comments during the public comment period that began in August 2014, when the draft rule was proposed, and December, 2014, when the public comment period was closed.

“Of the more than 4.3 million comments received on the Clean Power Plan (CPP) proposal, the vast majority are mass mailings,” a spokesperson for the EPA tells Breitbart News.

When pressed by Breitbart News, the EPA admitted that more than ten percent of these 4.3 million public comments on the coal power plant rule came from Organizing for Action, the “non-profit” successor to President Barack Obama’s 2012 campaign organization, Obama for America.

“A search on Organizing for Action shows a total of 487,822 duplicate comments [of the 4.3 million public comments received on the coal power plant rule],” a spokesperson for the EPA emailed Breitbart News late Wednesday.

Former Obama campaign political operative Tom Reynolds, now the EPA’s Associate Administrator for Public Affairs, is leading the propaganda war, while Administrator Gina McCarthy and the ideologues at the Environmental Protection Agency are leading the policy war.

Together, they have used a number of unlawful propaganda techniques to force the recently finalized carbon dioxide emission reduction rules onto the Federal Register—yet another example of the out-of-control regulatory state run amuck.

OFA’s key role in shaping the narrative surrounding the new coal power plant rules is undeniable.

“With its state of the art digital platform, 30 million e-mail addresses, 3 million donors and 2 million active participants, OFA 4.0 could continue to be a useful ally to progressive politicians and causes,” Sidney M. Milkis, a professor of politics at the University of Virginia and John W. York, a Ph.D. candidate there,  wrote in the Washington Post recently.

Jack Shapiro, OFA’s National Issues Campaign Manager, sent this email out over his name to all of those on the OFA email list during the public comment period on the proposed coal power plant rule:

Friend –

Thank you for adding your name a few weeks ago to support common-sense clean water protections.

Right now, the EPA is collecting comments from folks across the country on the President’s Clean Power Plan, so we’re going to make sure the voices of OFA supporters like you are part of that.

If you don’t want us to include your name in our comments to the EPA, please let us know here:



Organizing for Action
From: Jack Shapiro

Shapiro’s email illustrated a point made by Milkis and York in their Post article.

“Unlike [political] parties, in the post-Citizen’s United era, 501(c)(4) groups like OFA can accept unlimited contributions. And they can advocate for policies in ways unregulated by campaign finance laws. Although such groups must spend more than half of their funds toward “social welfare” (read: not overtly political) purposes to be eligible for tax-exempt status, enforcing this provision is daunting,” they noted.

“OFA’s ability to mobilize Obama’s supporters on behalf of policies has been one important reason that the president has been able to avoid lame duck status, and has instead continued to work on advancing substantive projects. OFA has helped to promote Obama’s policies, such as immigration reform, LGBT rights, and climate change policy through administrative action,” they add.

Breitbart contacted OFA for comment, but was only able to leave a message on the organization’s voice mail. The group’s website provides no media relations contact person, or any way to communicate with the group.

The Obama administration has made it clear it aims to target the coal industry—which currently supplies 39 percent of the country’s electrical power—and boost the expensive solar and wind industries favored by its wealthy left wing friends.

And it has manipulated the rule making process to accomplish that goal.

As Ellen Steen, General Counsel of the American Farm Bureau Federation [AFBF] testified to the Senate Judiciary Committee in June, this is not a new trick for the EPA and OFA. They used it in the recent Clean Water regulation comment period.

“EPA’s handling of the Waters of the United States Rule—a regulation of extraordinary practical and financial importance to farmers, ranchers and most anyone else who grows, builds, or makes anything in this Nation—flouted the [Administrative Procedure Act]’s notice-and-comment process,” Steen testified.

The Administrative Procedures Act [APA], passed by Congress in 1946, is the statutory authority by which regulatory agencies are guided in their rule making procedures.

According to Steen’s testimony, the EPA flouts the APA “in three key respects.”

“First, throughout the rulemaking process, EPA publicly derided concerns expressed about the proposed rule (including the concerns of Farm Bureau and our farmer and rancher members),” she noted.

“Second, EPA engaged in an extraordinary public relations campaign to solicit support for (but not informed comment on) the rule. The campaign consisted almost entirely of nonsubstantive platitudes about the rule’s purported benefits, while omitting any meaningful information about the actual content of the rule—i.e. what the rule would do, and what activities would be regulated as a result. The campaign substituted blogs, tweets and YouTube videos for what should have been an open and honest exchange of information between the agency and the public,” she continued.

“Finally,” she concluded, “the agency allowed its own internal timeline, and perhaps the presidential election cycle, to dictate issuance of a proposed rule before the fundamental scientific study underlying the proposal was complete and available for public review—and then to dictate issuance of a final rule without providing a further opportunity for public comment on major changes made in that final rule.”

Most opponents agree that the EPA continued that pattern of flouting the law when it came to the rule making for the coal power plant carbon dioxide emission regulations.

“The only changes they made [from the proposed rule to the final rule] were based on the friends they listened to and their own lawyers,” Luke Popovich of the National Mining Association tells Breitbart News.

They extended the compliance time for a couple of states who said they needed more time but then hurt other states even more. Then they made some legal changes that were simply the result of their lawyers telling them they would be even more susceptible to legal challenges than they currently are if they didn’t make the changes.

They removed the option for states in the original proposed rule they said was the easiest way to comply with the rule, the general direction to increase energy efficiency. Their lawyers said “We don’t have the legal authority to dictacte energy efficiency,” so they dropped it. The result was, the easiest and least costly way to comply was dropped, forcing states to take the more difficult route.

The impact of the political takeover of the regulatory rule making process on the rule of law is frightening. As John Cochrane of the University of Chicago wrote recently:

The power of the regulatory state has increased steadily. And it lacks many of the checks and balances that give us some “rule of law” in the legal system. . . The clear danger we face is the use of regulation for political control. Each industry gets carved up into a few compliant oligopolies. And the threat of severe penalties, with little of the standard rule-of-law recourse, keeps people and businesses in line and supporting the political organization or party that controls the agencies.

And so it is with the energy industry in the United States.

It is not the Congress of the United States that’s making energy law in America today. Instead, it is far left bureaucrats in the Obama administration and their wealthy far left ideologue friends who run a handful of environmental activist groups and OFA.

The kabuki theater process by which the EPA demanded states reduce carbon dioxide emissions from coal power plants by 32 percent through regulatory fiat is just the most recent and most egregious example of this subversion of the law.

Consider these facts:

(1) There is no statutory authority for the regulation of carbon dioxide emissions, and particularly from coal fired power plants.

(2) A dozen liberal states, including Connecticut, where current EPA Administrator Gina McCarthy at the time served as head of the Department of Environmental Protection, performed an end run around Congress in 2007, and persuaded five liberal judges on the Supreme Court to legislate from the bench and declare carbon dioxide a pollutant in the case Massachusetts v. EPA.

(3) When the rule was proposed in June 2014, its key enforcement mechanism—requiring states to develop carbon dioxide emission level compliance rather than specifying pollution control equipment—had no statutory authority.

(4) The public comment period from June 2014 to December 2014 was conducted in close cooperation with ideological allies, such as Organizing for Action. The agency highlighted supporters and ignored opponents of the rule.

(5) EPA used the same tactics to finalize the recent “Waters of the U.S.” rule.

In her testimony before the Senate Judiciary Committee, AFBF general counsel Steen noted this pattern of behavior had been established in the “Waters of the U.S.” rule, which was finalized recently prior to the finalization of the coal power plant rule.

Steen noted that “Not long after our campaign [to oppose the regulation] went live, a competing campaign called “Ditch the Myth” went public and continues today. Remarkably, however, that campaign was not launched by an environmental advocacy group—instead, it was launched by EPA itself.”

But the aggressive propaganda techniques used by Obama campaign veteran, now EPA Associate Administrator, Tom Reynolds did not end there, Steen testified:

Beyond its “Ditch the Myth” campaign, EPA engaged in an aggressive “Thunderclap”
social media campaign, designed to drum up superficial support for the rule outside the regulated community. Thunderclap is a company that provides a “crowdspeaking” platform, which, in its own words, “allows a single message to be mass-shared, flash mob-style, so it rises above the noise” and helps “create action and change like never before.” …

Through Thunderclap and the coordinated efforts of environmental groups and political
action groups (in particular, Organizing for America (OFA)), EPA was able to boost superficial
support for the rule by hundreds of thousands of well-intended people who never read or even looked at the proposed rule. In the preamble to its final rule, EPA boasts that the agency received “over 1 million public comments on the proposal, the substantial majority of which supported the proposed rule.” Of course, this omits that over 900,000 of the so-called “comments” fit on less than four single-paced pages. It also omits that the rule was overwhelmingly opposed in detailed, substantive comments by the majority of state governments, county and municipal governments, and associations and companies from virtually every sector of the U.S. economy.

The EPA claims most of the public comments created through its active social media campaign with the help of OFA support the new coal rule.

“Over three quarters of the comments expressed support for the Clean Power Plan. We received these comments in a variety of formats, including online submissions, written comments and through testimony at public hearings,” a spokesperson for the EPA tells Breitbart News.

It is virtually impossible to confirm this statement, as the EPA has actively obscured the public comments from scrutiny.

Much of the 4.3 million comments received came from mail campaigns from nearly 130 groups including, American Electric Power, Earthjustice, Count on Coal, National Audobon Society and the American Farm Bureau. The agency counted all comments, but does not keep a list of subtotals from individual groups,” a spokesperson for the EPA initially told Breitbart News. (emphasis added)

Notably absent from the EPA list in the initial emailed statement of 130 groups were the environmental groups that were the most important drivers of the dialogue, such as Organizing for Action, the Natural Resources Defense Council, and the Sierra Club, all of whom were intensely involved in the EPA led propaganda process to support the final rule.

And the three organizations that opposed the coal power plant rule specifically mentioned by EPA in its emailed to statements as engaging in mass mailing campaigns accounted for fewer than 100,000 of the estimated 4.2 million mass mailing comments, leaving the identities of the organizations responsible for the remaining 4.1 million comments unconfirmed by the EPA.

A spokesman for Count on Coal, a project of the National Mining Association, told Breitbart News, “the comment drives from last year [sent to the EPA in opposition to the coal power plant regulation] generated 87,000 comments – a mix of comments cards mailed in and online comments.”

A spokesperson for American Electric Power, which is based in Columbus, Ohio and operates utilities in 11 states, tells Breitbart News the company “conducted an advocacy campaign to encourage employees, contractors, retirees, shareholders, suppliers, customers and other stakeholders to comment on the rules.”

“There were 6,190 comments submitted to the EPA” as part of this campaign, the spokesperson tells Breitbart News.

In addition, “AEP as a company submitted technical comments on the proposal that were about 400 pages.”

The American Farm Bureau Federation [AFBF], however, tells a different story of its role in the rulemaking process than does the EPA.

“AFBF submitted comments on its own behalf to the rulemaking docket. AFBF is a member of the Partnership for a Better Energy Future, which engaged in grassroots efforts. The National Rural Electric Cooperative Association also was active on this issue. AFBF kept our members informed about these efforts but we did not independently initiate a grassroots effort, nor did we keep track of any comments from Farm Bureau members that might have resulted as a result of these broader grassroots efforts,” a spokesperson for the AFBF tells Breitbart News.

Less than one percent of the 4.3 million comments received by the EPA were substantive.

“We received more than 33,000 unique comments addressing some aspect of the rule, of which 1,700 are more in depth,” an EPA spokesperson tells Breitbart News.

Most other proposed rules have an easy to find website where you can click and see the actual comments submitted. For instance, the recent Department of Housing and Urban Development rule on “Affirmatively Furthering Fair Housing” had 884 comments. Each comment can be read online.

Breaking this down, approximately 4,277,000 of the 4.3 million public comments were generated by mass mailings.

This huge volume of astroturfed comments are the fruits of the aggressive public relation strategy EPA Associate Adminstrator Tom Reynolds brought with him to the agency from the Obama campaign.

As Environment and Energy Publishing reported in 2014:

EPA has been a popular punching bag since the start of the Obama administration.

But in the past few months, the agency has started hitting back harder than ever. The architect behind the aggressive new media strategy is Tom Reynolds, an Obama campaign vet who thinks the agency’s foes shouldn’t get the last word.

“I think the most important philosophy ¬¬ and this stems from the administrator’s leadership ¬¬ is recognizing the value of setting the record straight and not letting challenges or false attacks go unnoticed,” Reynolds said in a recent interview. “A lot of what we do is to counter these attacks and these false narratives, and that needs to happen in real time.”

Reynolds, 37, has headed up EPA’s communications and public affairs for a little over a year, using media tactics he honed on the campaign trail and during his time deflecting scandals in the Energy Department’s press shop.

In the upside down world of the American political system in 2015, secret dealings, hidden alliances, and the spreading of false narratives is now called “setting the record straight” by the political operatives who run the Obama administration.


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