U.S. ENVIRONMENTAL PROTECTION AGENCY 

OFFICE OF INSPECTOR GENERAL 

Catalyst for Improving the Environment 

Office of Counsel Legal Review 

Response to Congressional 

Inquiry Concerning EPA’s 

Conduct Related to 

Draft/Proposed Legislative 

Amendments 

 Report No. 10-N-0148 

 June 21, 2010 
 

 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

OFFICE OF 

INSPECTOR GENERAL 

June 21, 2010 

The Honorable Lisa Murkowski 

Committee on Energy and Natural Resources 

United States Senate 

Washington, DC 20510 

Dear Senator Murkowski: 

In response to your request of November 12, 2009, the Office of Inspector General, 

Office of Counsel reviewed the conduct of certain U.S. Environmental Protection Agency (EPA) 

officials related to the handling of your proposed amendment to H.R. 2996.1 Specifically, we 

addressed your questions regarding (1) whether the head of EPA’s Office of Congressional and 

Intergovernmental Relations (OCIR) attempted contact with Shell Oil Company regarding 

Amendment Number 2530 to H.R. 2996 constituted a violation of law, regulation, or policy; and 

(2) whether EPA solicited the Alliance of Automobile Manufacturers (Automobile Alliance) and 

the Association of International Automobile Manufacturers (AIAM) to lobby on its behalf, in 

violation of law, regulation, or policy. 

I. Summary of Conclusion 

We found no violations of law, regulation, or policy related to contact by the OCIR 

Associate Administrator, with either the Shell Oil Company or the Automobile Alliance, 

regarding Amendment Number 2530 to H.R. 2996.2 The OCIR Associate Administrator called a 

representative of Shell Oil Company when the amendment was in draft, prior to its introduction; 

he also called and exchanged several e-mail messages with a representative at the Automobile 

Alliance after the proposed amendment was introduced in Congress. The OCIR Associate 

Administrator’s contact with the automobile industry regarding your proposed amendment was 

limited to his contact with the Automobile Alliance, and was the only such EPA contact with 

either the Automobile Alliance or AIAM that we identified in our review. We found that the 

OCIR Associate Administrator did not request Shell or Automobile Alliance representatives to 

lobby Congress on the amendment and, therefore, found no violation of grassroots lobbying 

prohibitions in statutes or policy. Further, we found no violation of policy or standards of 

conduct in the contact with Shell Oil Company, as described in detail below. 

1 The Department of Interior, Environment and Related Agencies Appropriations Act, 2010. 

2

 As described herein, the OCIR Associate Administrator did not contact AIAM. 
 

 

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II. Background 

A. EPA Contact with Shell Oil Company 

On or around September 17, 2009, the OCIR Associate Administrator, David McIntosh, 

received a copy of a draft of an amendment to the Appropriations bill that you were planning to 

propose related to EPA’s authority to regulate greenhouse gases (GHG). OCIR leads EPA’s 

review of legislation, coordinates EPA’s formal positions and technical assistance to Congress, 

and monitors all legislative actions relevant to EPA programs. The OCIR Associate 

Administrator is the principal advisor to the EPA Administrator on all congressional affairs and 

regional, State, and local governmental relations. Mr. McIntosh is also the primary political 

advisor on GHG-related issues and handles related requests from Congress. Having received the 

draft of the amendment, Mr. McIntosh initiated his usual review process for proposed legislation; 

that is, he provided it to two program offices, the Office of Air and Radiation (OAR) and Office 

of General Counsel (OGC), for review. These two offices notified Mr. McIntosh that the draft 

contained what he described as “unintended consequences” – namely, that the draft of the 

amendment would prevent EPA from processing certain air permits, including permits related to 

drilling on the outer-continental shelf. Because the unintended consequences were not 

immediately apparent on the face of the draft, Mr. McIntosh was concerned about the possibility 

of unnecessary public confusion if government affairs staff in the affected industry did not 

recognize the issue when responding to inquiries about the draft amendment and EPA’s 

interpretation of the draft. 

To avoid this potential confusion, Mr. McIntosh decided to contact a representative of the 

affected industry to request feedback from industry attorneys on EPA’s interpretation of the draft 

amendment as having unintended consequences. On or around September 17, after he received 

the draft amendment and was notified about the unintended consequences by OAR and OGC, 

Mr. McIntosh called a government affairs representative at Shell Oil Company whom he knew 

from his prior work on the Hill. During the telephone conversation, Mr. McIntosh described 

EPA’s interpretation of the potential effects of the draft amendment, indicating that the 

amendment, as drafted, could impact offshore drilling. He recalled requesting that the Shell 

lawyers provide feedback if their interpretation differed from EPA’s.3 Both Mr. McIntosh and 

the Shell representative recalled only this one conversation on this matter. Neither recalled any 

additional communications. 

Mr. McIntosh does not recall contacting anyone else outside EPA about your early 

version of the draft amendment, explaining that it would have been unlikely because the 

unintended consequences were specific to the oil industry. He stated that, when he called the 

Shell representative, he had no intention of trying to generate opposition to the amendment. He 

wanted to establish whether Shell experts disagreed with EPA’s interpretation before EPA 

communicated its position to the Hill. Mr. McIntosh explained that, if EPA were missing 

something in its interpretation, he wanted to stop any broadcast of that interpretation before it 

created confusion. If Shell disagreed with EPA’s interpretation, and convinced Mr. McIntosh of 

its position, then he did not want the concept of the unintended consequences to be part of a 

3

 The contact at Shell recalls the conversation with Mr. McIntosh on this matter, but does not recall Mr. McIntosh 

having made a request for feedback. 

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debate over the proposed amendment. Mr. McIntosh also said that his contact with Shell put 

Shell on notice to examine the draft amendment language so that it could be prepared for a call 

from Congress. 

The Shell representative did not have the impression that Mr. McIntosh had made the 

contact because he wanted Shell to contact Congress and object to the amendment. Mr. 

McIntosh did not ask or imply that the Shell representative should contact Congress to assert 

EPA’s position. Acting on her own accord, following her conversation with Mr. McIntosh, the 

Shell representative contacted your office, recounted what she had heard from Mr. McIntosh 

about EPA’s interpretation of the amendment, and was told that your office did not agree with 

what she had recounted to them. She confirmed to us that Mr. McIntosh did not ask Shell to 

contact your office. 

Mr. McIntosh was confident that based on their professional interactions prior to his 

position at EPA, his contact at Shell would not perceive his call to in any way be a threat to any 

of Shell’s air permits; the Shell representative confirmed this position. The Shell representative 

understood that Mr. McIntosh was merely expressing the possibility that the Agency might not 

have the authority to issue permits if the amendment were enacted. 

B. EPA Contact with the Automobile Industry 

About a week later, on September 23, 2009, you introduced a revised version of the 

amendment in Congress which eliminated the earlier unintended consequences but created a new 

one. Shortly after it was introduced, Mr. McIntosh shared the filed version with EPA program 

offices for their review. Mr. McIntosh also reviewed the language of the proposed amendment 

and concluded that the unintended consequence of this version of the proposed amendment was 

that EPA would be prevented from finalizing the proposed rule for GHG emissions for light-duty 

vehicles.4 

Based on this conclusion, Mr. McIntosh decided to contact the affected industry, provide 

EPA’s interpretation, and ask for a response.5

 As in the situation with the previous draft of the 

amendment, Mr. McIntosh felt that busy government affairs representatives would not 

necessarily see the unintended consequence of the amendment immediately, especially because it 

contained language that appeared to disclaim the impact that he identified. Mr. McIntosh 

thought it was likely that the federal government affairs representative for the Automobile 

Alliance, whom he knew from prior work on the Hill and at EPA, would be called by the media 

or a Hill staff member for his reaction to the amendment. Mr. McIntosh stated he did not contact 

any other representatives of the automotive industry (which would include AIAM). AIAM 

confirmed that Mr. McIntosh had not contacted them. Mr. McIntosh contacted the Automobile 

4

 His interpretation of the amendment was later confirmed by staff in the program offices. 

5

 Mr. McIntosh’s contact with the automobile industry regarding your proposed amendment was limited to his 

contact with the Automobile Alliance; he did not contact AIAM. In addition, his contact with the Automobile 

Alliance was the only such EPA contact that we identified during the course of our review. We did not find any 

evidence that the Automobile Alliance or AIAM was contacted by anyone else from EPA. Also, no other EPA 

communications with the automotive industry were identified in our review of documents the Agency gathered to 

respond to a request from your office and a related Freedom of Information Act request for documents and 

correspondence regarding your amendment. 

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Alliance representative because he wanted to confer with him prior to the representative 

potentially receiving a call from the Hill or the media, which could affect the public’s 

understanding of the issues. 

Mr. McIntosh recalled having only one telephone conversation with the Automobile 

Alliance representative and that the remainder of their communication was via e-mail. Mr. 

McIntosh indicated that, in their conversation, he asked the Automobile Alliance representative 

to contact his association’s attorneys and to call him if they disagreed with EPA’s interpretation 

of the amendment. He further recalled being clear in the conversation that he did not ask the 

representative to do anything other than get back to him with any concerns about EPA’s 

interpretation. 

The Automobile Alliance representative confirmed that Mr. McIntosh shared EPA’s 

preliminary legal interpretation of the amendment. The Automobile Alliance representative also 

stated that Mr. McIntosh wanted to know if the Automobile Alliance had taken any sort of 

position – legal or political – on the proposed amendment. When they spoke, the Automobile 

Alliance had not formulated its position, and the representative did not tell Mr. McIntosh 

whether he agreed with EPA’s interpretation. 

 Shortly before or after their call on September 23, 2009, at 3:22 pm, Mr. McIntosh sent 

the Automobile Alliance representative an e-mail, attaching the amendment. About 20 minutes 

after Mr. McIntosh sent the e-mail with the proposed amendment attached, the Automobile 

Alliance representative responded in the very manner Mr. McIntosh was concerned about; i.e., 

failing to recognize the impact of the proposed amendment. The Automobile Alliance also 

requested clarification of EPA’s interpretation of the unintended consequence of the proposed 

amendment. In response, at approximately 4:05 pm via e-mail, Mr. McIntosh explained how the 

amendment, if enacted, would prevent EPA from promulgating rules related to light-duty 

vehicles.6 

On September 23, 2009, the EPA Administrator issued a letter that responded to an inquiry 

from Senator Feinstein about the impact of the proposed amendment. On September 24, 2009, 

after seeing the Administrator’s letter on the matter, the Automobile Alliance and AIAM cosigned a letter to Senator Feinstein opposing the amendment. The letter contained a quote from 

the EPA Administrator’s September 23, 2009 letter.7

 The Automobile Alliance representative 

explained that, as a matter of courtesy, he forwarded a copy of the September 24 letter to Mr. 

McIntosh in an e-mail addressed to undisclosed recipients; it was not sent in response to any 

request. Mr. McIntosh also stated that he did not know of, nor did he request a copy of, the letter, 

and we identified no evidence demonstrating that Mr. McIntosh knew that AIAM and the 

Automobile Alliance were writing a letter. Beyond an acknowledgement of receiving the e-mail, 

6

 They subsequently exchanged two brief e-mails at or around 4:08 pm, one from the Automobile Alliance 

representative that included his thanks to Mr. McIntosh for the information, and a brief acknowledgement reply email from Mr. McIntosh. 

7

 The Automobile Alliance representative could not clearly recall how he obtained a copy of the September 23 

letter, but he did not believe Mr. McIntosh had either told him about it or given it to him. Mr. McIntosh stated that 

he did not provide a copy of the September 23 letter to the Automobile Alliance, and no evidence has been identified 

to indicate that he did. 

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we did not find evidence of any further communications on this matter between Mr. McIntosh and 

the Automobile Alliance representative. 

III. Legal Discussion 

A. Summary of Findings 

We found no violations of grassroots anti-lobbying provisions8 in the contacts made by 

Mr. McIntosh with Shell or the Automobile Alliance, and we found that Mr. McIntosh had no 

contact with AIAM. In his communication with Shell Oil Company, Mr. McIntosh requested 

feedback on EPA’s legal interpretation of the impact of your proposed amendment, but did not 

make any express request to the representative to lobby Congress on the matter, which would 

have violated the grassroots lobbying prohibitions. We found no violation of the Anti-Lobbying 

Act9

 nor of Agency guidance10 in this contact with Shell. 

We also reviewed Mr. McIntosh’s contact with the Automobile Alliance, which occurred 

after your amendment was introduced, under the applicable prohibitions against grassroots 

lobbying in the Anti-Lobbying Act, the government-wide prohibitions in the Financial Services 

and General Government Appropriations Act, as well as the prohibitions in EPA’s annual 

appropriations,11 and EPA guidance. These prohibitions were triggered after your amendment 

was introduced. We did not identify any explicit or implicit request to contact the Hill regarding 

the amendment in Mr. McIntosh’s communications with the Automobile Alliance, which would 

have constituted a violation of statutory grassroots lobbying prohibitions. Furthermore, we 

found no violation of EPA’s grassroots lobbying guidance in Mr. McIntosh’s contact with either 

organization. 

B. Analysis of the OCIR Associate Administrator’s Contact with Shell 

 The Anti-Lobbying Act, and the Agency’s August 2007 guidance related to that statute, 

generally prohibit express appeals to the public to support or oppose legislation before or after 

introduction. Mr. McIntosh’s contact with Shell prior to the introduction of the amendment falls 

within this timeframe.12 We found no evidence of such an express request by Mr. McIntosh. 

The Shell representative did contact your office after Mr. McIntosh’s telephone call; however, 

this contact did not result from a request by Mr. McIntosh. Therefore, no violation of the 

8

 Grassroots or indirect lobbying, as applicable to this review, refers to a request made by a federal agency to the
 

public or special interest groups to lobby on its behalf. Direct lobbying is where an agency employee directly 

lobbies Congress and is not at issue in this review. 

9 18 U.S.C. § 1913. 

10 Memorandum from the EPA General Counsel, “Annual Update on Indirect Lobbying Prohibitions” (Aug. 29, 

2007). (“August 2007 guidance memorandum”).
 11 These prohibitions can be found in the Omnibus Appropriations Act, 2009, in different provisions. See Section
 

402 of Div. E (“Department of the Interior, Environment, and Related Agencies Appropriation Act, 2009”) and
 

Section 717 of Div. D (“Financial Services and General Government Appropriations Act, 2009”), respectively, of
 

Pub. L. 111-008 (Mar. 11, 2009). 

12 At the time of Mr. McIntosh’s one contact with Shell on or around September 17, 2009, the draft amendment had 

not been officially introduced in Congress. 

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Anti-Lobbying Act or of the Agency’s 2007 guidance was found for Mr. McIntosh’s contact 

with Shell Oil Company. 

In addition, to fully respond to your request, we reviewed the contact with Shell for any 

policy or ethical violations related to the outstanding permit application you referenced. We did 

not find an Agency policy that would change the application of the grassroots lobbying guidance 

depending on whether an entity has submitted an application for an EPA permit. Agency 

employees also are governed by standards of ethical conduct that include employees endeavoring 

to avoid actions that create an appearance they are violating the law or ethical standards. 13 

Given the circumstances of the contact with Shell, as described above, we conclude that there 

was no appearance of a violation of grassroots anti-lobbying provisions, and therefore no 

violation of the standards of ethical conduct. 

C. Analysis of Contact with Automobile Industry 

Three statutes containing prohibitions on grassroots lobbying govern communications 

after legislation has been introduced in Congress.14 As stated above, we determined that Mr. 

McIntosh’s only contact with the automotive industry regarding the proposed amendment was 

his contact with the Automobile Alliance, and that he did not contact AIAM. The September 23, 

2009, telephone contact and associated e-mail communications with the Automobile Alliance 

occurred after your amendment was officially introduced on September 23. Therefore, we 

reviewed the contact with the Automobile Alliance under the three statutory provisions15 as well 

as the applicable Agency guidance. The statutory grassroots-lobbying-related provisions 

governing communication occurring after formal introduction of an amendment prohibit not only 

express requests, but also implicit requests, as well as provision of assistance (such as fact 

sheets), when EPA has reason to know that assistance will be used to lobby Congress. Analysis 

of the relevant provisions is provided below.16 

1. Analysis of Prohibitions on Express Requests 

As described in detail above, we found that Mr. McIntosh’s communications with the 

Automobile Alliance contained no express request to lobby Congress on the proposed 

amendment. Therefore, we found no violation of prohibitions on express appeals to the public to 

contact Congress established in provisions of the Anti-Lobbying Act, the government-wide 

prohibitions, EPA’s appropriations provision, or Agency guidance on the matter. 

2. Analysis of Prohibitions on Implicit Requests 

The Agency appropriations provision and the Agency’s related guidance also prohibit 

implicit requests to contact Congress on the Agency’s behalf. After reviewing the totality of the 

13 5 CFR 2635.101(b)(14). 

14 Included among the three is the Anti-Lobbying Act, which governs grassroots lobbying activities before and after 

introduction of legislation.

15 The Anti-Lobbying Act, the government-wide prohibitions, and prohibitions in the annual Agency appropriations. 

16 The transmittal of the Administrator’s September 23, 2009, letter responding to Senator Feinstein was not 

included in this analysis as we found no evidence that the head of OCIR transmitted the letter to the Automobile 

Alliance.
 

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circumstances and considering the applicable factors used by the Government Accountability 

Office for analyzing whether communications are implicit grassroots lobbying requests,17 no 

violation of the Agency appropriations provision or the related Agency guidance on the matter 

was found. 

The Government Accountability Office has identified a set of factors useful for analyzing 

whether contacts are implicit grassroots lobbying requests, including “timing, setting, audience, 

content, the reasonably anticipated effect of the questioned activity, and whether the 

communication was intended to promote support or opposition to a legislative proposal.”18 We 

determined Mr. McIntosh’s intent in contacting the Automobile Alliance to be the critical factor 

in our analysis of whether, under all the facts and circumstances present, the communication 

tended to promote public support or opposition by the Automobile Alliance to the amendment. 

When Mr. McIntosh contacted the Automobile Alliance, he intended to seek feedback on EPA’s 

interpretation of the amendment’s impact on EPA’s regulatory authority. He did not intend, nor 

did the Automobile Alliance representative perceive any intent, to urge any contact with 

Congress. To obtain that feedback on the Agency’s interpretation, Mr. McIntosh had to contact 

an industry representative, which he did by phone and subsequent e-mail exchange, and 

therefore, the setting, timing, and audience of the communication, as well as the reasonably 

anticipated effect of the contact, were incidental to achieving his purpose, and are not considered 

dispositive to our analysis. Lastly, the content of Mr. McIntosh’s e-mail communications with 

the Automobile Alliance representative support our conclusion that his stated intent for the 

contact – getting feedback – does not demonstrate an intent to engage in grassroots lobbying. 

Specifically, after providing the proposed amendment, Mr. McIntosh responded to a question 

posed by the Automobile Alliance representative concerning the Agency’s interpretation of 

sections of the Clean Air Act and the impact the proposed amendment would have on EPA’s 

regulatory authority for GHGs. He did not state a position on the proposed amendment, nor did 

he encourage any action on the amendment itself. 

Based on a review of applicable factors and considering the totality of the circumstances, 

we conclude that Mr. McIntosh’s communication with the Automobile Alliance did not 

constitute an implicit request to the public to lobby Congress on the proposed amendment. 

Therefore, we concluded there were no violations of the prohibitions on implicit grassroots 

lobbying requests in either the Agency appropriations act or the associated Agency guidance. 

IV. Conclusion 

Our review of the OCIR Associate Administrator’s contacts with Shell Oil Company and 

the Alliance of Automobile Manufacturers revealed no violations of grassroots lobbying 

prohibitions, as described in detail above.19 

17 Office of the General Counsel Opinion, Government Accountability Office, B-281637 (May 14, 1999), p.6. EPA 

guidance also refers to the Government Accountability Office’s decisions and factors which, while not binding on 

EPA, were relied on in the 2007 guidance memorandum. See August 2007 guidance memorandum, p.2, footnote 2. 

18 Office of the General Counsel Opinion, Government Accountability Office, B-281637 (May 14, 1999), p.6. 

19 As explained above, Mr. McIntosh’s contact with the automobile industry was limited to his contact with the 

Automobile Alliance, and was the only such EPA contact that we identified with either the Automobile Alliance or 

AIAM during our review. 

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The estimated cost of this report – calculated by multiplying the project’s staff days by 

the applicable daily full cost billing rates in effect at the time – is $33,019. 

If you have any questions or need additional information, please do not hesitate to contact 

my Associate Deputy Inspector General and Counsel, Mark Bialek, at (202) 566-0861. 

Sincerely, 

Bill A. Roderick 

Acting Inspector General 

8