What’s Upstream maneuvers through legal loopholes

Both the state attorney general and the federal inspector general appear to indicate that the laws have loopholes in need of repair.

Published on May 4, 2017 9:16AM

One of the billboards What’s Upstream used to insinuate that Washington farmers are polluting rivers and streams and to push for a state law requiring 100-foot buffers. Such use of federal funds is legal, according to the state attorney general and the Environmental Protection Agency’s Office of Inspector General.

Capital Press File

One of the billboards What’s Upstream used to insinuate that Washington farmers are polluting rivers and streams and to push for a state law requiring 100-foot buffers. Such use of federal funds is legal, according to the state attorney general and the Environmental Protection Agency’s Office of Inspector General.


We are occasionally reminded of this truism: What’s right and what’s legal are two different things.

The latest reminder came in the form of the Environmental Protection Agency’s Office of Inspector General report on the What’s Upstream smear campaign against Washington farmers. The inspector general’s job is to make sure the EPA stays within the bounds of the law.

In its report, the inspector general found that EPA had adeptly steered the campaign through massive loopholes in federal law.

For example, it is against federal law to use EPA funds to lobby state governments. What’s Upstream used advertising and mounted a letter-writing campaign to convince Washington legislators to pass a law requiring a 100-foot buffer along every body of water in the state.

According to the inspector general, however, this isn’t lobbying. It looks like lobbying, and its aim was the same as lobbying, but, according to the law, it’s not lobbying. To be lobbying, there must be a bill in the legislature, according to the inspector general’s analysis.

That’s a distinction without much of a difference. It is clear that the intent of What’s Upstream was to convince legislators to pass a law requiring buffers.

It is equally clear that nearly $500,000 in EPA money went to the Northwest Indian Fisheries Commission and the Swinomish Indian tribe, which spent it on a smear campaign against farmers and an online letter-writing campaign to get a buffer law passed.

What isn’t clear is why this isn’t considered lobbying in the eyes of the inspector general.

“It just leaves you shaking your head,” Jay Gordon, a dairy farmer and policy director of the Washington State Dairy Federation, told our reporter, Don Jenkins. “When we read common words, we expect them to have a common understanding.”

The inspector general says the law must be interpreted as narrowly as possible and the lack of a specific piece of legislation made What’s Upstream legal.

That’s like saying a bank robber was innocent because he didn’t get any money. He walked into the bank, handed a note to the teller and waved a gun around, but ran off without any money when the cops arrived.

That, according to the inspector general’s line of reasoning, makes the robber innocent.

Washington’s attorney general, Bob Ferguson, also issued a free pass to the What’s Upstream campaign for the same reason.

Both the state attorney general and the federal inspector general appear to indicate that the laws have loopholes in need of repair.

Any time public money is used to smear farmers — or anyone else, for that matter — in an effort to push legislation, that is wrong. Legal, but wrong.

Our hope is that members of Congress and the Washington Legislature will follow up and close the loopholes in the federal and state laws.

As for What’s Upstream, the EPA has stopped sending checks to the groups behind the smear campaign.

In a warped legal environment, that’s about all we could have hoped for.



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