GAO Determines EPA Violated Law by Promoting WOTUS

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.”

EPA Prepares to Ban Chlorpyrifos

Written by Tyler R. Etter

On October 30, 2015, the Environmental Protection Agency (EPA) opened for commenting a proposal to revoke all tolerances for the insecticide chlorpyrifos. The proposal is being issued pursuant to a court order from August of 2015.

Originally, the EPA planned to issue the proposed rule by April of 2016, but the 9^th Circuit ordered the Agency to deny the petition issued for a safety evaluation, issue a proposal, or issue a final rule by October 31, 2015. Due to the Agency being unable to make a safety finding, and questions in scientific assessment still being open, the EPA has issued the proposal.

The proposal will seek to revoke all food residue tolerances for chlorpyrifos. Under current analysis, there does not appear to be a risk from exposure to chlorpyrifos from food. However, the Agency cannot make a conclusion about the aggregate exposure between food residue and exposure from drinking water in affected watersheds.

The comment period is open until January 5, 2016. The EPA expects to release a final rule by December of 2016. The proposed rule can be read and commented on here.

Court Grants EPA Summary Judgment in CAFO Information Gathering Case

Written by Katharine Richter

On September 29, 2015, the United States District Court for the District of Columbia granted summary judgment to the Environmental Protection Agency (EPA); EPA was sued back in 2013 by five groups over the EPA’s decision to withdraw a proposed rule.  According to the decision, the rule “would have required large industrial livestock operations to provide information to the EPA in order to facilitate the EPA’s ability to regulate their discharge of pollutants into the waters of the United States pursuant to the Clean Water Act [CWA].”  The five groups bringing the lawsuit were the Center for Food Safety, Environmental Integrity Project, Food & Water Watch, The Human Society of the United States, and Iowa Citizens for Community Improvement.

The plaintiffs alleged that the withdrawal of the proposed rule “was arbitrary and capricious in violation of the Administrative Procedure Act…”  According to the decision, in 2011, the EPA introduced two potential rules which “would have required CAFOs to submit certain basic information to the EPA, pursuant to the EPA’s information-gathering authority under the CWA.”  The Agency decided to not adopt either rule after a notice and comment period.  The EPA stated it would use the “existing information approach,” using data from other sources such as U.S. Department of Agriculture (USDA) and state registration or licensing programs rather that requiring CAFOs to submit information.

In the decision, the plaintiffs argument focused upon the “clarity of explanation offered by the EPA” in deciding to not adopt the proposed rule.  The Court found the EPA’s decision to not adopt the rule and notice was “adequately explained and coherent.”  Further, the plaintiffs argued the EPA erred in determining it could properly gather information on CAFOs without enacting the rule.  The Court determined the evidence was sufficient that a reasonable person would “reach the conclusions that the EPA did regarding the existing sources of information.”

European Governments Call for Legal Analysis of GM Crop Proposal

On Monday July 13, 2015, European Union member states criticized a GM crop proposal by the European Commission that would allow for individual member states to restrict or prohibit the importation of authorized GM crops.

The proposal would allow a member state to exclude a GM crop from the state’s supply chain, even without a scientific basis, so long as the exclusion can be justified within EU law. This decision can be made despite the authorization of the GM crop for food or feed by the EU.

Critics of the proposal claim that leaving this decision to individual member states interferes with the idea of the EU’s single market. These members are calling upon the Farm Council to conduct an impact study, as well as the European Commission to determine the legal impacts of the proposal.

The Health and Food Safety Commissioner, Vytenis Andriukatis, said that the Commission will not conduct an impact study, as “[m]ember states are best placed to measure the potential effects or consequences on their own markets.”

The proposal can be read here.

Written by Tyler R. Etter- Research Assistant 
July 15, 2015

USDA Issues New Rule Regarding Organic Agriculture

On November 8, 2011, the United States Department of Agriculture published a new rule aimed at addressing the use of tetracycline, formic acid and attapulgite in organic agriculture. According to the USDA press release, the proposed rule embodies many of the recommendations made by an independent body known as the National Organic Standards Board, which advises the Secretary of Agriculture on organic regulations. Comments on the proposed rule will be accepted until January 9, 2012.

Click here to read the USDA press release

Click here to read the entire proposed rule

Written by Andy Schwabenbauer, Research Fellow
November 28, 2011