Did EPA Press Office Retaliate for Unfavorable NY Times Article?

June 3, 2015

Who gets notified of U.S. EPA's telephone press conferences? While any reporter can sign up via EPA's website for media advisories of upcoming news, the agency in actual practice is sometimes selective about who gets notified.

Tom Reynolds, Associate Administrator for Public Affairs, told the WatchDog that EPA decides who gets notified on a "case-by-case basis."

Case in point: EPA's roll-out of its "Waters of the U.S." (WOTUS) rule and New York Times reporter Coral Davenport. The key call for elite media was at 9:15 a.m. ET on May 27, 2015, the day of the WOTUS announcement by EPA and the Corps of Engineers, who issued the rule jointly. Not everyone got invited to that call. A wider array of media were notified of a later call that day at 1:30 p.m.

It appears to an outside observer that Davenport was uninvited to the call as retaliation for an unfavorable story she had written about EPA's public affairs operation the week before, on May 18. EPA's Tom Reynolds denies that, saying Davenport's non-invitation had "nothing to do with our relationship."

Davenport had co-reported (with Eric Lipton) a story spotlighting EPA's effort to encourage public comments on the WOTUS rule during the period when it was open for public comment before being finalized. The article implied that Obama administration-linked social media efforts had approached limits set by the law against grass-roots lobbying by the government. That story made EPA unhappy and prompted considerable criticism from liberal media — but was ultimately ruled legitimate by the Times' own Public Editor, Margaret Sullivan.

Davenport had written a preview story on May 22 outlining the forthcoming WOTUS rule — and beating most of the mainstream media in the process — saying it would come within days. So it would have been logical to let her know about the actual official announcement.

But she didn't get the e-mail when it came out at 7:15. Instead, it went to the Times' Ron Nixon, a regulatory reporter who had written about the farm fallout of the WOTUS rule in March 2014 — but not since them.

Nixon was in no position to write a story about the WOTUS announcement the morning of May 27 — he had just gotten back from vacation abroad. He did not sit in on the 9:15 press call. It was Davenport who wrote the Times' story on the WOTUS announcement.

Like everybody else, Davenport wrote the story and the Times published it that day. Her press office shunning hardly delayed her story (though it may have made her scramble). If her exclusion was meant as punishment, it was hardly effective.

One deeper irony is that the reporters who were on the 9:15 call did not get that much — or rather they got exactly what EPA wanted them to get. They got quotes from EPA Administrator Gina McCarthy and Jo-Ellen Darcy, the Assistant Secretary of the Army in charge of the Corps of Engineers. And a chance to ask a few questions. That was all they got. And whatever they got was embargoed until 10 am. They did not get the text or details of the rule. Those were not released until almost 11 a.m. So the reporters on the call were almost encouraged to rush to print with EPA's interpretation, but not the facts.

Tom Reynolds said the early call was meant for the "core reporters" who cover EPA on a daily basis. An advisory on the later call, at 1:30, went to a much wider array of journalists who had signed up for EPA releases. One rationale for the later call was that it was more convenient for West Coast media (something SEJ has asked EPA for).

The exclusivity of the early call rubbed Zack Colman, of the Washington Examiner, the wrong way. He wrote a story that day headed: "EPA Shuts Out Examiner, Others From Water Rule Announcement." In a Tweet after that story came out, Reynolds explained: "Examiner not unbiased news source." Colman took exception to that as well.

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