The EPA abused and distorted the normal rulemaking process to pre-determine the outcome of its highly controversial “Waters of the U.S.” rule, American Farm Bureau Federation General Counsel Ellen Steen told the Senate Judiciary Committee last week.
Instead of inviting and openly considering public input, the EPA conducted an aggressive advocacy campaign to obscure the on-the-ground impact of the rule and to smear groups, like Farm Bureau, that dared to explain those impacts to the public, Steen told the committee.
“The notice-and-comment procedure for rulemaking is designed to ensure that agencies take honest account of the thoughts and concerns of the regulated public,” Steen said. “Legitimate concerns over how the rule would affect agriculture, in particular, were subtly twisted and then dismissed as ‘silly’ and ‘ludicrous’ and ‘myths.’ Public statements from the agency’s highest officials made it clear that the agency was not genuinely open to considering objections to the rule.”
The agency also made use of new social media tools such as “Thunderclap” to gin up well-intended but ill-informed support for the rule among the lay public. Later, agency officials pointed to the resulting emails, petition signatures, postcards and other non-substantive mass comments to contend that “the public” supported the rule, even though the vast majority of substantive comments – by state and local governments, business owners, and organizations representing virtually every segment of the U.S. economy – opposed the rule.
“Regardless of whether you supported, opposed, or never heard of that rule, you should shudder to think that this is how controversial regulations will be developed in the age of social media,” Steen said. “Agencies must strive to maintain an open mind throughout the rulemaking process – and to inform rather than indoctrinate and obfuscate – even when policy issues have become controversial and politicized.”