Ag Policy Blog

Senators Push for DOJ Investigation on WOTUS Rule

By Todd Neeley , DTN Staff Reporter

Republican Sens. Ben Sasse of Nebraska and James Inhofe, Oklahoma have asked the U.S. Department of Justice to open an official investigation into the use of social media by the U.S. Environmental Protection Agency leading up to the final release of the waters of the United States rule, in a letter to the DOJ Thursday.

The Government Accountability Office concluded in a recent report that EPA violated the Antideficiency Act when it used social media to lobby for support for the rule that re-defines waters subject to the Clean Water Act.

"We write to request that the department of justice investigate whether officials at the Environmental Protection Agency knowingly and willfully violated and are continuing to knowingly and willfully violate (federal law) in its covert propaganda and grass roots lobbying campaign to promote the agency's rules defining waters of the United States," Inhofe and Sasse write in the letter.

The rule remains in legal limbo as the U.S. Sixth Circuit Court of Appeals is expected sometime this year to decide whether it can hear numerous legal challenges to the rule.

Inhofe and Sasse point out that Section 1341 of the Antideficiency Act prohibits employees of the U.S. government from spending any money not authorized by Congress.

"While few people may have heard of the Auntideficiency Act, it plays an important role in protecting our constitutional system of checks and balances. The Constitution is clear: 'No money shall be drawn from the treasury, but in consequence of appropriations made by law,'" the senators write.

"This means the executive branch is prohibited from spending even a dollar unless Congress first gives it permission. The requirement springs from the bedrock principle that legislative and executive powers must be kept separate and not concentrated in a single federal entity."

The Antideficiency Act says any government employee who spends money not authorized by Congress has violated the principle of separation of powers. "As the Department of Justice itself has long recognized, a knowing and willful violation of the Antideficiency Act is subject to a $5,000 fine and spend up to two years in prison," the senators said.

"Last month the Government Accountability Office found that the EPA violated the Andtideficiency Act by promoting its WOTUS rules in ways expressly prohibited by Congress," the senators said.

Inhofe and Sasse pointed to a provision of the Antideficiency Act that requires EPA to conduct an internal investigation and "identify the persons responsible.

"However, EPA is dismissive of GAO's legal decision," the senators write. "In fact, even though GAO issued its legal decision on Dec. 14, EPA has not removed from its website the messages that GAO found to be covert propaganda and grass roots lobbying."

The senators pointed to a recent court filing from the DOJ on the WOTUS legal challenge as "that mischaracterized the GAO decision as an opinion letter rather than the formal legal decision that an Antideficiency Act violation had occurred. Under the Antideficiency Act, the EPA administrator must submit a report to Congress detailing the violation and amount of money that was spent illegally.

"Given EPA's continuing violations, and the cavalier attitude displayed by EPA public affairs staff and Department of Justice line attorneys, we request the Department of Justice immediately investigate whether a criminal violation of the Antideficiency Act has taken place. Only a thorough and independent investigation can determine whether a crime has occurred."

Read the letter here,…

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Brian Hoffman 1/25/2016 | 9:17 AM CST
If they expect to prosecute those in violation of this statute we're going to need a lot more prison space.
tom vogel 1/21/2016 | 7:45 PM CST
Todd: If it goes to the Department of Justice, we know how that would end. I cannot think of one thing this DOJ has ruled against that the Administration supported. This is the equivalent of asking a mother what she thinks of her youngest daughter. This would be nothing more than procedural gymnastics.