EPA Proposes Procedures for Agency Guidance
On the first day of my first environmental law class in law school I learned the importance of agency guidance. Our professor had us read a statute and a regulation, then asked some very simple questions. All of us students agreed that there was an “obvious” answer to the questions based on the plain reading of the statutory language. The professor then pointed out that EPA had issued guidance memos concluding that the “obvious” answer was not the one adopted by the agency. If we had advised our client without checking the guidance, we may have given the wrong advice.
Experienced environmental practitioners know that to understand an issue, you must read the law, the regulation, the cases, AND applicable agency guidance. Identifying guidance has historically required searching various antiquated agency databases, agency websites, reviewing secondary sources, and even then, one was often left with interpreting conflicting conclusions. EPA is seeking to address these problems with its latest guidance reforms.
The proposed rule, published on May 22, 2020, implements Executive Order 13891 and, if adopted, would:
Clarify that agency guidance that has not gone through APA notice and comment is not legally binding. That this point needs clarification shows the extent to which guidance has been incorrectly treated as binding in the past.
Create a distinction between a “guidance document” and a “significant guidance document.” The proposed rule defines a “guidance document” as a statement of general applicability intended to have future effect on regulated entities. A “significant guidance document” is one that will lead to an annual effect on the economy of $100 million, will adversely affect “the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities,” will create a serious inconsistency with actions of another agency, will materially alter budgetary impacts, or that raises novel legal or policy issues. Significant guidance documents must go through notice and comment, subject to certain exclusions.
Require all guidance be posted to the new EPA Guidance Portal. The Portal was made available on February 28, 2020, and any document not in the Portal “will have no effect” as guidance. I have used the Portal for research and, while it is not perfect, it is a drastic improvement over the prior situation of documents scattered everywhere. Looking for guidance can be akin to searching for a needle in a haystack. The Portal at least draws bounds around the haystack.
Provides a mechanism for the public to petition for modification or withdrawal of guidance. There are lots of conflicting historical guidance documents around. This procedure gives the public an opportunity to ask the agency to correct erroneous guidance.
In short, the proposed rule would likely improve the ability of the public to identify and understand agency guidance. For entities required to comply with complex environmental regulations, knowing the guidance and how to access it is crucial. The comment period for this rule is open until June 22.