Notice & Comment

Social Media: Changing the Landscape of Rulemaking, by Lynn White

Just as we have seen in politics and other forms of policymaking, rulemakers and regulated communities are taking to social media to engage stakeholders and influence public policy.  This is a tricky strategy since rulemaking does not lend itself to boiling down policies into 140 characters or less.  Most proposed and final rules are well over 200 pages and written in (oftentimes unnecessarily) complex language by administrative lawyers. 

An excellent recent example of this phenomenon comes from the U.S. Environmental Protection Agency’s (EPA) proposal to revise the scope of waters protected under the Clean Water Act (CWA).  According to the EPA, the proposed rule “would enhance protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States’ protected under the Act.”  The proposal was over 110,000 words or 300-plus pages of normal text. 

The American Farm Bureau Federation (AFBF) immediately pushed back on the rule because of the potentially devastating impact on farmers.  Ellen Steen, the AFBF’s General Counsel, stated that the proposal would make many farm activities subject to CWA permit requirements and there is no guarantee that EPA will issue the permits necessary to keep farms operational.  The process of getting a permit is also costly and requires lawyers.  AFBF quickly established a coordinated social media campaign called “Ditch the Rule” that gives stakeholders quick access to digestible information on the 100 page rule and directions on how to file comments. 

The AFBF’s efforts yielded great results.  There have been thousands of comments filed on the rule.  The EPA was forced to extend the comment period twice because of the strong public opposition.  The extended comment period allowed many farmers who were in the rush of planting season when the proposal was released to comment on the rule. 

The EPA engaged in its own social media outreach.  The proposed rule has a cutting edge webpage entitled “Ditch the Myths,” (a not-too subtle parody of AFBF’s site) which you generally don’t see on dry government websites.  William Rodger, the Director of Policy Communications at the AFBF, stated “we’ve never seen an agency produce its own mini site to counter opposing viewpoints.”

In September, the EPA coordinated a “Thunderclap,” or a single message to be mass-shared at a scheduled time, on the CWA rule entitled “I Choose Clean Water.”  The messaging on the rule simply stated that the agency, along with the U.S. Army Corps of Engineers, “has proposed to strengthen protection for the clean water that is vital to all Americans.”  The message purportedly reached over 1,800,000 people.  Ditch the Rule launched a corresponding social media campaign encouraging supporters to give its own message, “I support clean water, but @EPA’s water rule is a problem for everyone. #ReadtheFinePrint here: #DitchtheRule.”

We expect to see more rulemaking battles like this as the Administration continues to use some of the social media tools and strategies that made its political campaigns so successful in agency rulemaking.  With hundreds of thousands of comments for the EPA to process, it will be interesting to see how the agency weighs public feedback. 

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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