Constitutional Law Professor: GAO Report ‘A Black Eye for the EPA’

Golfers walk along the water during an afternoon of warm and sunny weather on December 13, 2015 in Fairfield, Connecticut. Temperatures across much of the New York metropolitan area continued to be unseasonably warm with a record breaking mid 60's being recorded in many areas. The warm weather is expected …
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A Government Accountability Office report stating that the EPA broke the law is “a black eye” for the agency, says an expert in Constitutional Law. EPA is in hot water over the promulgation of a controversial water rule that a federal appeals court placed a stay on in October.

“The impact of this report is more political than legal. It’s a black eye for the EPA, but doesn’t really affect the legal merits of the challenge,” Jonathan Adler, a professor of Constitutional Law at Case Western University and a regular contributor to the Washington Post’s Volokh Conspiracy, tells Breitbart News.

The merits of the legal challenges to the EPA’s water rule, filed by 22 states in two separate federal lawsuits, appear to be quite strong.

“While we know from experience that the EPA goes to great lengths to advance illegal and unprecedented regulations, I take comfort that we currently have a national stay on the waters rule and are well positioned to drive a stake through the heart of this unlawful policy,” Patrick Morrisey, Attorney General for West Virginia, one the states that has sued the EPA over the water rule, tells Breitbart News.

According to the EPA’s website, “The Clean Water Rule: Definition of “Waters of the United States” published in the Federal Register on June 29, 2015. The rule became effective on August 28, 2015.” A federal district court judge in North Dakota issued a stay almost immediately. The ruling initially applied only to 13 states involved in one lawsuit against the regulations. In October a federal appeals court affirmed the stay and extended it to all 50 states in the country.

Sen. Jim Inhofe, a steadfast opponent of the water rule who had asked the GAO to issue a legal opinion on its validity, offers a similar view.

“G.A.O.’s finding confirms what I have long suspected: that E.P.A. will go to extreme lengths and even violate the law to promote its activist environmental agenda,” Inhofe said in a statement responding to the GAO report. “E.P.A.’s illegal attempts to manufacture public support for its Waters of the United States rule and sway congressional opinion.”

The Army Corps of Engineers and the EPA first proposed the rule in March 2014 in an attempt, critics claim, to extend the boundaries of their power far beyond the statutory authority given to them in the Clean Waters Act by Congress.

“The public comment period was initially set to expire on July 21, 2014, but was ultimately extended until November 14, 2014. According to EPA, the agency used social media platforms in connection with the WOTUS rulemaking from February 2014 through July 2015,” the GAO report stated.

“At issue here,” the GAO explained, “is whether EPA violated publicity or propaganda and anti-lobbying provisions concerning the use of its FY 2014 and FY 2015 appropriations.”

“The use of appropriated funds associated with implementing EPA’s Thunderclap campaign and establishing hyperlinks to the NRDC and Surfrider Foundation webpages,” GAO concluded, “violated prohibitions against publicity or propaganda and grassroots lobbying contained in appropriations acts for FYs 2014 and 2015.”

“Accordingly,” the report says, “ EPA should report the violation to the President and Congress, with a copy to the Comptroller General, as required by the Antideficiency Act. The agency should determine the cost associated with the prohibited conduct and include the amount in its report of its Antideficiency Act violation.”

The EPA’s social media advocacy program in support of the water rule was aggressive and extensive, as the New York Times reported:

The E.P.A. 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 effectively restricts 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 a flagrant case of government overreach…

The publicity campaign was part of a broader effort by the Obama administration to counter critics of its policies through social media tools, communicating directly with Americans and bypassing traditional news organizations.

At the White House, top aides to President Obama have formed the Office of Digital Strategy, which promotes his agenda on Twitter, Facebook, Medium and other social sites. Shailagh Murray, a senior adviser to the president, is charged in part with expanding Mr. Obama’s presence in that online world.

Thomas Reynolds, who as E.P.A. communications director directed many of the tactics decried by the G.A.O., recently moved to the White House to push the president’s global warming message with many of the same tools he deployed at his former agency.

Bob Stallman, President of the American Farm Bureau Federation (AFBF), another group that steadfastly opposes the rule, praised the GAO report:

A legal opinion today by the U.S. Government Accountability Office finds that the Environmental Protection Agency broke the law with its social media and grassroots lobbying campaign advocating for its own Waters of the U.S. rule. It’s clear from this report that EPA orchestrated this matter in a biased fashion. Now it’s up to Congress to clean up this mess by including a corrective measure in the omnibus bill now taking shape on Capitol Hill.

Courts already have declared serious doubts about the legal authority for the rule. Now that it has become clear that the agency used illegal tactics to manufacture ill-informed support for the rule, Congress should act immediately to prohibit implementation of this rule, which is the product of an unlawful and misguided process.

We applaud U.S. Senate Environment and Public Works Chairman Jim Inhofe for asking GAO to conduct this investigation. The GAO findings vindicate those, like the American Farm Bureau Federation, who have claimed all along that EPA’s tactics advocating for this rule stepped past the bounds of proper agency rulemaking. EPA was focused only on promoting the rule rather than hearing good-faith concerns from a wide cross-section of Americans. The public deserves better when important matters of public policy are at stake.

Shortly after the water rule was published, the AFBF launched its own social media campaign to oppose the regulation, which it called “Ditch the Rule”:

Puddles, ponds, ditches, ephemerals (land that looks like a small stream during heavy rain but isn’t wet most of the time) and isolated wetlands dot the nation’s farmland. The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) on June 29 finalized a rule that expand its regulatory authority under the Clean Water Act (CWA) to these types of land features and waters, giving the agencies the power to dictate land-use decisions and farming practices in or near them. On August 28, the new rule became effective, making it more difficult to farm or change a farming operation to remain competitive and profitable.

The key issue, once again, is the drastic overreach of the federal bureaucracy, heightened by the Obama administration’s general disdain for Congress, in turning the administrative rulemaking process into its own, constitutionally unauthorized, legislative mechanism.

As Kevin Kosar, director of the governance project at the R Street Institute wrote at the Weekly Standard after the GAO report was made public:

The EPA denies wrongdoing. “We use social media tools just like all organizations to stay connected and inform people across the country about our activities,” declared spokeswoman Liz Purchia.

What appears lost on the agency is the nature of representative government. The EPA is not a private company entitled to sell its wares aggressively to consumers. It is a government agency established to execute the laws written by representatives elected by we the people. As I noted in these pages in September:

The Constitution’s careful balance of powers goes out the window when executive agencies make policy unilaterally and then manufacture public sentiment in support. The EPA obviously needs reminding that last year’s omnibus bill, which funds it, includes this prohibition: ‘No part of any funds appropriated in this or any other Act shall be used by an agency of the executive branch… for publicity or propaganda purposes.

Kosar continued to hit hard on that theme in an interview with Breitbart News.

“The EPA is an advocacy agency much more than an agency that applies the law,” Kosar tells Breitbart News.

“It has an aggressive pursuit of environmental goals. It gives little account to competing values, like the ability for a citizen to use his or her property as he or she deems best.”

While the GAO report gives critics of the EPA’s extra constitutional rule making process seen so nakedly revealed in “The Waters of the US” rule the satisfaction of being proven correct, the report’s recommendation—that the EPA tell Congress how much it spent on its illegal social media campaign to promote the rule—will do little to reign in the out-of-control agency.

For that, critics will have to rely on the ongoing federal litigation and new legislation in Congress. In the meantime, the EPA and the Obama administration remain defiant.


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