June 01, 2015

Social Media: Changing the Landscape of Rulemaking

Nina Hart, Elisabeth Ulmer, and Lynn White

In April 2014, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) issued a notice of proposed rulemaking (NPRM) that was designed to clarify the scope of waters regulated by the Clean Water Act (CWA). The NPRM became one of the Obama administration’s most controversial regulatory proposals. In response to this controversy, the agencies and regulated communities quickly engaged social media in an effort to mobilize and influence stakeholders. Rulemaking is based on lengthy, complex proposals (the NPRM here was more than 300 pages of normal text) and does not necessarily lend itself well to the short, pithy sound bites traditionally used on social media platforms. For a variety of reasons, efforts to lead opinion produced uneven results.

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Specifically, while the outreach efforts reached a wide audience and resulted in the filing of thousands of comments, given the complexity of the issues involved, it is unclear whether the increased volume added substantive value to the agencies’ deliberation process. However, these results evidence the power of using new communication tools and the need for agencies to evaluate how virtual public participation may impact rulemaking. For instance, in addition to using social media to reach a wider array of the public, agencies may want to utilize supplemental methods to enhance the quality of public input.

The Administrative Procedure Act (APA) requires that agencies “give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments.” 5 U.S.C. 553(c). Agencies “must and do take comments seriously and often modify [final rules] as a result of [public comments].” Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking, 295–296 (American University College of Law, 5th ed. 2012). Public comments become part of the rulemaking record, which is used to aid public participation and inform both agency rulemaking decisions and judicial review of challenged rules. Id. at 320–323. Historically, this process was completed via mailed written comments or agency-run listening sessions. As Internet usage became prevalent, however, federal agencies began including online platforms as part of the comment process. This concept is commonly known as eRulemaking.

Given the significant impact that public comments can have on the final outcome of a rulemaking, it is no surprise that groups have sought to engage more stakeholders in the rulemaking process through social media. Although highly controversial rulemakings will often receive thousands of comments, traditionally public comments for complex proposed rules come from advocacy organizations and industry stakeholders that possess a wealth of resources and expertise. The use of social media in the rulemaking context has increased public awareness of agency rulemakings and created a new “battlefield” to sway public opinion. This can increase political pressure on the involved agencies and stakeholders and may therefore influence a rule’s final form. This dynamic created a significant amount of drama around EPA’s efforts to clarify the definition of “waters of the United States.”

EPA and the Corps issued the NPRM to clarify the definition of “waters of the United States” in response to the U.S. Supreme Court’s decisions in United States v. Riverside Bayview Homes (Riverside), 474 U.S. 121 (1985); Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001); and Rapanos v. United States (Rapanos), 547 U.S. 715 (2006). In Riverside, the Court adopted the view that because congressional intent was to safeguard water quality and aquatic ecosystems, Congress must have intended that wetlands “inseparably bound up with the ‘waters’ of the United States” should be regulated under the CWA. See 474 U.S. at 135. In the SWANCC case, which concerned the use of intrastate ponds by migratory birds, the Court held that because the ponds were “isolated” and nonnavigable waters, they did not come within the jurisdiction of the CWA. 531 U.S. at 165–66. The Rapanos case concerned the application of the CWA to wetlands adjacent to nonnavigable tributaries of traditional navigable waters. Of relevance here is the test set forth by Justice Kennedy in his concurring opinion. Justice Kennedy argued that “waters of the United States” include wetlands with a “significant nexus” to navigable waters. 547 U.S. at 759. The “significant nexus” requirement is satisfied if wetlands “significantly affect the chemical, physical, and biological integrity” of navigable waters. Id. at 759, 780. Justice Kennedy’s opinion indicated that “significantly” means that the effect is “more than speculative or insubstantial.” Id. at 780.

As a result of these decisions, agencies had to assess water jurisdiction on a case-by-case basis more often. Thus, EPA and the Corps wanted to promulgate a rule that more clearly delineated the jurisdictional status of bodies of water and thereby allowed for “more effective and efficient CWA permit evaluations with increased certainty and less litigation.” 79 Fed. Reg. 22,190 (2014). Under the proposed rule, EPA and the Corps intend to define the “waters of the United States” as follows:

Traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands.

Id. at 22,199–22,200. This proposal alters the definition of “waters of the United States” by removing the phrase “all other waters” and requires EPA and the Corps to apply Justice Kennedy’s “significant nexus” standard to determine whether the CWA applies to the waters at issue. Id. at 22,192.

As noted above, the NPRM proved controversial. A number of environmentalists asserted the proposal did not protect the environment enough, while industry groups argued the proposed rule would lead to unconstitutional land grabs by the federal government. Stakeholders quickly took to social media to engage constituents and encourage participation in the notice-and-comment process. For example, the American Farm Bureau Federation (AFBF), a grassroots advocacy organization for the agriculture community and leading opponent to the NPRM, established a social media campaign to disseminate targeted messaging in opposition to the rule. EPA also established an extensive social media presence to promote the rule.

American Farm Bureau Federation’s “Ditch the Rule” Campaign

AFBF led the opposition to the NPRM through its “Ditch the Rule” campaign, which gave stakeholders in the agriculture community a number of tools through which to learn about the rule and take action. These resources included breakdowns of the rule’s provisions, links to tweet targeted messages, and information about submitting comments and contacting legislators. Further, the AFBF and other stakeholders marked their messages with the hashtag “#DitchtheRule,” which permitted the campaign to present a unified theme on social media sites including Twitter and Facebook. The hashtag was also used in press releases and articles to coordinate public messaging opposing the rule. See, e.g., SBA to EPA: #DitchTheRule (Oct. 2, 2014); Chuck Zimmerman, Time to #DitchTheRule and Let it Go (May 23, 2014); Stewart Truelson, Cutting Regulations to Stimulate the Economy—#DitchTheRule (June 5, 2014).

AFBF also coordinated a social media “Day of Action,” encouraging participants to (1) tweet, “I support clean water, but @EPA’s water rule is a problem for everyone. #ReadtheFinePrint here #DitchtheRule”; (2) tweet, retweet, and “favorite” the tweet; and (3) post it on Facebook. AFBF provided a toolkit with graphics for participants to include in their advocacy efforts.

AFBF’s efforts yielded results as farmers and agricultural groups filed thousands of comments on the proposed rule. EPA was forced to extend the comment period because of the strong public opposition. EPA began accepting comments on the proposal on April 21, 2014, and extended the initial ninety-day comment period to November 14, 2014. This was a victory for the AFBF campaign because the extended comment period allowed many farmers, who were in the rush of planting season in April when the proposal was issued, to comment on the rule.

Public opposition to the proposed rule also prompted several key policymakers to express their concerns regarding the proposal to EPA. Members of the Senate Committee on Agriculture, Nutrition & Forestry requested the immediate withdrawal of the CWA rule, stating, “[we] have heard from farmers, ranchers, and other rural constituents about the Interpretive Rule and are deeply concerned it has created great confusion about what agriculture activities are exempt from regulation under the Clean Water Act.” Letter from Members of the Senate Committee on Agriculture, Nutrition, and Forestry, to Gina McCarthy, U.S. EPA Administrator, Thomas Vilsack, U.S. DOA Sec’y, and John McHugh, U.S. Army Sec’y (Oct. 23, 2014). The Small Business Administration also wrote to EPA and the Corps, questioning whether the agencies properly assessed how the rule would impact small entities. Letter from Winslow Sargeant, Chief Counsel for Advocacy, et al., to Gina McCarthy, U.S. EPA Administrator, and Gen. John Peabody, Deputy Commanding General, U.S. Army Corps of Engineers, (Oct. 1, 2014).

EPA’s “Ditch the Myth” Campaign and Social Media Outreach

EPA also established an extensive online presence during the comment period. Following the release of the NPRM in April 2014, EPA dedicated an entire website to educating the public about the proposed rule, including factsheets that attempted to make the proposal’s provisions easier to understand. See U.S. EPA, Proposal to Protect Clean Water. For instance, the site included information about why EPA decided to engage in rulemaking and devoted separate sections to “What the Rule Does” and “What the Rule Does Not Do.” Id.

EPA also took the unusual step of engaging with the opposition during the notice-and-comment period by creating a webpage titled, “Ditch the Myths,” an apparent response to AFBF’s “Ditch the Rule” campaign. This move proved controversial, with the AFBF responding, “We’ve never seen an agency produce its own mini site to counter opposing viewpoints.” Interview by Lynn White with William Rodger (Oct. 17, 2014). EPA’s unusual strategy may have been necessary. As Cynthia Farina, the McRoberts Research Professor in Administration of the Law and Senior Researcher at Cornell’s eRulemaking Initiative (CeRI), noted:

If groups are going to use social media to engage stakeholders during the notice and comment period, agencies should have the ability to respond to perceived misinformation—and to respond effectively, with the kind of presentation that works in today’s social media world. Leveling the information playing field ultimately benefits all the people who aren’t able to struggle through the formal rulemaking documents. We can allow the agency to advocate its view of the regulatory problem and options without lessening its ultimate legal obligation to produce a decision supported by evidence and reasoning in the rulemaking record.

Telephone Interview with Cynthia Farina, McRoberts Research Professor in Administration of the Law and Senior Researcher, Cornell eRulemaking Initiative (Jan. 20, 2015).

Additionally, EPA attempted to engage the public via a number of social media outlets. For instance, the agency created links to videos and media releases and encouraged the public to share these links on Facebook, Twitter, and Pinterest. See U.S. EPA, Proposal to Protect Clean Water. EPA also wrote short Twitter messages for individuals to share on their personal accounts like: “Clean water is important to me. I support EPA’s efforts to protect it for my health, my family, and my community.” Id.

Beyond these sustained efforts to connect with the public, in September 2014, EPA distributed the previously mentioned message via Thunderclap, a tool through which many people can share the same message at a scheduled time (described by its creators as an “online flash mob”). Thunderclap FAQ, Thunderclap. EPA publicized its Thunderclap several weeks before the scheduled dissemination via a number of online outlets, including the agency’s official blog, It’s Our Environment. Travis Loop, “Do You Choose Clean Water?It’s Our Environment: EPA’s Blog about Our World (Sept. 9, 2014). The message reached more than 1.8 million people. I Choose Clean Water, Thunderclap (Sept. 29, 2014). This number represents a significantly increased reach over EPA’s earlier uses of Thunderclap. For instance, in June 2014, EPA organized a Thunderclap in support of its proposed carbon emissions rules, reaching just over 241,000 people. Support EPA Carbon Rules, Thunderclap (June 16, 2014). In August 2014, another Thunderclap to support the agency’s Clean Carbon Plan reached roughly 506,000 people. Join the Rally & #ActOnClimate, Thunderclap (Aug. 1, 2014).

Analyzing the Public Response

Sources have stated that the agency received over one million “comments” on the proposed rule. Karen Bennett & John Henson, Redefining Waters of the United States: Is EPA Undermining Cooperative Federalism?, Engage 16:1, May 5, 2015. As may have been expected, a number of comments lacked substance, making them of little use. Rather, they were general statements of support or opposition to the proposal. Such comments came particularly from private individuals who did not appear to be officially affiliated with advocacy groups, environmental organizations, or governmental entities. See, e.g., Comment submitted by J. Snyder (Nov. 14, 2014); Comment submitted by C. Balan (Oct. 14, 2014); Comment by R. Fricke (June 6, 2014). However, even organizations that supported the rule sometimes submitted statements of policy that likely will be of little use to the agencies. See, e.g., Comment submitted by Cecily C. Kihn, Executive Director, Agua Fund, et al (Nov. 13, 2014).

The remaining part of this section will give a high-level overview of the comments submitted by proponents and opponents of the NPRM.

Proponents of the Proposed Rule

Many groups submitted comments in support of the NPRM. Some comments included additional scientific data for the agencies’ consideration, arguing that the science substantiated the proposed rule. See, e.g., Comment submitted by William W. Sapp, Senior Attorney, Southern Environmental Law Center, et al. (Nov. 12, 2014).

Other proponents also focused on the scientific basis for the rule, but suggested that, based on scientific data, the NPRM did not go far enough in protecting the environment. For instance, the Pamlico-Tar River Foundation recommended that the rule, as it pertained to adjacent waters, be amended to reinstate the categorical exemption for such waters because (1) a large number of wetlands in North Carolina were adjacent to estuaries and (2) data indicated that it was necessary to regulate these wetlands to protect regional water quality. Comment submitted by Heather Jacobs Deck, Pamlico-Tar Riverkeeper, Pamlico-Tar River Foundation (Nov. 13, 2014). The Foundation also highlighted the fact that EPA’s Scientific Advisory Board had issued statements and reports potentially inconsistent with the provisions of the proposed rule. Id.

Similarly, Defenders of Wildlife and the Patagonia Area Resources Alliance, two organizations generally supportive of the rulemaking, referenced scientific data to highlight a potential inconsistency between EPA’s current position and its past scientific reports. Specifically, the organizations claimed that EPA’s Scientific Advisory Board had previously noted that the categorical exemption for groundwater was “generally not supported by sound scientific principles” and argued that EPA erred in formulating a definition that recognized this exemption. Comment submitted by McCrystie Adams, Senior Staff Attorney, Defenders of Wildlife and Wendy Russell, Coordinator, Patagonia Area Resource Alliance (Nov. 14, 2014). See also Comment submitted by Rachael Paschal Osborn, Interim Executive Director, The Center for Environmental Law and Policy (Nov. 14, 2014). Although the Pamlico-Tar River Foundation and the Defenders of Wildlife & the Patagonia Area Resources Alliance supported the NPRM, they used scientific data to reach different conclusions about what the NPRM should do to protect the environment.

Opposition to the Proposed Rule

Thousands of commenters expressed opposition to the rule. These comments raised four general concerns: vague language in the NPRM, insufficient input from stakeholders, agency overreach, and imposition of economic and regulatory hardships.

First, a number of comments contended that the language was too expansive and ambiguous. For example, AFBF argued that both the broadness of the categories and the vagueness of the definitions made it difficult to know what was covered under the rule. Comment submitted by the American Farm Bureau Federation, et al. (Nov. 14, 2014).

Second, some commenters suggested that the agencies failed to elicit sufficient input from industry, state, and local officials, which was particularly problematic given the complex nature of the NPRM. For instance, a number of trade associations asked EPA and the Corps to consult with them to ensure that the agencies would receive more practical input from industry professionals. Janet Kubat Willette, EPA Reviewing WOTUS Comments, AgriNews (Dec. 11, 2014, 8:00 AM).

Third, opponents argued that the proposed rule improperly expanded the CWA by disregarding Congress’ decision to leave regulatory jurisdiction over smaller waters (e.g., ponds and isolated wetlands) with state and local governments, which, according to the AFBF, “are more accountable to their citizens and more in touch with local environmental and economic situations.” Id.

Finally, opponents asserted that because the proposal placed more waters under federal jurisdiction, many entities would face greater economic and regulatory burdens. According to the AFBF, the revised definition of the term “navigable waters” under the proposed rule would subject “countless ephemeral drains, ditches and ‘wetlands’ that only contain water when it rains” to permitting requirements. American Farm Bureau Federation, Not What Congress Had in Mind, Ditch the Rule. They contended that the proposed rule would force more entities to undertake a time-consuming, expensive permit application process and thereby increase costs on regulated parties. Further, opponents claimed that ambiguities in the rule would require case-by-case analyses, which, depending on the agency official’s interpretation, could vary and therefore frequently lead to litigation over whether the waters fell within the scope of the CWA.

Helping Agencies Manage the Process

An analysis of the NPRM comments reveals a number of issues that agencies must address, particularly with respect to comment quantity versus comment quality. In general, when developing a final rule, an agency counts the number of opponents and supporters of each provision, outlines the substance of the comments, and explains the agency’s rationale for the final text of the provision. Quantifying support or opposition is almost impossible with thousands of comments to review. Further, quantification may not be the ideal approach, considering that the end result may distract stakeholders from the substantive issues. Moreover, perusing a high number of comments may divert agency resources from fulfilling other statutory obligations. Thus, using social media in the open-ended way that EPA did here may be less than ideal.

Recently, the Administrative Conference of the United States (ACUS), an independent federal agency dedicated to improving the rulemaking process, released a report on the use of social media in the rulemaking context. See ACUS, Administrative Conference Recommendation 2013-5, Social Media in Rulemaking (2013). The report acknowledges the power of social media but cautions that its use comes with risks. The report encourages agencies to “identify the specific goals they expect to achieve through the use of social media and carefully consider the potential costs and benefits.” Id. at 7. Additionally, ACUS outlines several effective approaches to using social media. For instance, agencies can use a blog or other social media site to disseminate information, updates, and clarifications regarding the content of a proposed rule. Further, when soliciting input through social media platforms, the agency can indicate how the input will be treated under the APA and provide a version of the NPRM that is “friendly” and clear to lay users.

CeRI, a cross-disciplinary team of Cornell University law, computer science, and communications faculty and students that “consult[s] with government agencies on, and engage[s] in, theoretical and applied research about using technology to make policymaking more democratic, efficient, and effective,” has also addressed the issues agencies face with respect to social media. See CeRI: A Multidisciplinary Collaboration of Cornell Faculty and the Legal Information Institute. According to a report CeRI prepared for agency managers and others interested in using social media to increase public engagement in rulemaking, barriers to effective participation include (1) lack of awareness of rulemakings, (2) lack of understanding of the rulemaking process and how the public may participate, and (3) inability to understand fully the often highly technical materials involved with NPRMs. Farina, Cynthia R. and Newhart, Mary J., Rulemaking 2.0: Understanding and Getting Better Public Participation, 11, (IBM Center for the Business of Government 2013).

To address some of these barriers, CeRI created a novel online participation platform called Regulation Room. Regulation Room focuses on “targeted commenting,” a format in which participants attach their comments to specific sections of text. In the case of rulemaking, this text is a condensed and simplified version of the information in the NPRM and Regulatory Impact Assessment. This design encourages informed and focused commenting and automatically organizes the discussion by substantive topic. Moderators trained in facilitation techniques help participants find information and mentor effective commenting practices. The platform has been developed and improved over six years of hosting live rulemakings for agencies, including the Department of Transportation and the Consumer Financial Protection Bureau (CFPB). CeRI uses conventional and social media outreach to publicize the rulemakings to potential new participants. Speaking at the ABA’s Spring 2014 Administrative Law and Regulatory Practice Institute, Director Richard Cordray described CFBP’s most recent experience with Regulation Room: “More than 80% of those who took part through the Cornell initiative had never previously provided feedback on a federal government rulemaking. We are finding it worth the effort to engage the public in new and different ways.” Richard Cordray, Director, Consumer Financial Protection Bureau, Remarks at the Am. Bar Ass’n., Section of Administrative Law and Regulatory Practice 10th Annual Administrative Law and Regulatory Practice Institute (Apr. 3, 2010).

As evidenced by this NPRM, social media can play a significant and valuable role in the rulemaking process. It allows agencies to disseminate information about upcoming regulatory changes broadly and to engage stakeholders in the rulemaking process. However, an increase in public participation does not always translate to an increase in informed participation. If agencies continue to use social media to encourage more people and organizations to submit comments, they should also explore online platforms that will help them ensure that the comments are meaningful to the process of rule finalization.

Nina Hart, Elisabeth Ulmer, and Lynn White

Ms. Hart is a 2015 graduate of Columbia Law School. Ms. Ulmer is a 2014 graduate of Villanova University School of Law and currently writes for the ABA Section of Administrative Law and Regulatory Practice blog, Notice and Comment. Ms. White works in regulatory compliance at The George Washington University.