In December 2015, the Government Accountability Office (GAO) found that the Environmental Protection Agency’s (EPA) use of social media tools in a rulemaking under the Clean Water Act violated prohibitions in federal appropriations laws against publicity, propaganda and lobbying. Although academics previously explored whether the use of technology in rulemaking might violate the Administrative Procedures Act (APA), the Paperwork Reduction Act, or the Federal Advisory Committee Act, none predicted that one of the first firestorms surrounding the use of social media in rulemaking would arise out of federal appropriations laws.
While critics of the EPA “waters of the United States” (WOTUS) rule vigorously chastised the agency for its “illegal” activity, a close reading of the GAO report indicates that the agency’s violations of appropriations rules were relatively minor and could be easily avoided in the future. Despite the outcry in the wake of the report, an analysis of the appropriations legislation demonstrates that it poses very few restrictions, in practice, on agencies’ use of social media in rulemaking.
However, an analysis of the WOTUS rulemaking and the manner in which EPA used social media in the rulemaking demonstrates that agencies may decide to use social media in rulemaking for a variety of reasons, some of which are more legally defensible than others. Proponents of the use of social media in rulemaking tout its potential for educating the public, gathering more information from a broader range of participants, and developing better, more democratic and more widely accepted rules. However, an agency might also be tempted to use social media tools in the rulemaking process to evangelize, rather than educate, and to contour information (selectively promote the submission of information to support a pre-determined outcome). While EPA did not cross that line in the WOTUS rulemaking, when an agency uses social media to evangelize and contour information, it can run afoul not only of prohibitions in appropriations laws, but also of requirements of the APA. Although the violation of appropriations laws would only trigger minor sanctions, violation of the APA requirements could trigger invalidation of the agency rule.
As the Administrative Conference of the United States recently recommended, therefore, agencies should think carefully about what legitimate goals they expect to achieve through the use of social media in rulemaking before embarking on rulemaking and should develop a strategy for using social media tools in a manner that best achieves those legitimate goals.
This article examines the benefits of using social media in rulemaking, the limitations imposed on the use of social media by appropriations laws and the APA, and the practical considerations involved in choosing the right mix of social media tools for rulemaking. Part I of the article outlines the various goals that agencies might have when choosing to use social media tools in rulemaking. Part II explores the variety of social media tools that are available to agencies and provides a brief overview of federal support for the use of those tools in rulemaking. Part III examines the extent to which social media tools can actually achieve the goals that motivate agencies to use them. Part IV outlines the limits imposed on agencies’ use of social media by appropriations laws and Part V outlines the APA challenges that might be raised if agencies use social media to evangelize and contour information in the rulemaking process. Finally, Part VI provides some concluding suggestions regarding the appropriate use of social media tools in rulemaking.