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EPA Proposes to Give Up Some ‘Guidance’ Power That Critics Hate

May 19, 2020, 4:01 AM

The Environmental Protection Agency is moving Tuesday to restrain how it uses memos, advisories and other informal statements to shape policy -- with a proposal that could open the door to court review of those guidance documents.

The EPA’s proposed rule would limit the scope of guidance documents and give the public a chance to weigh in on many of them. It would require the agency post such documents online -- including some that have been locked away in file cabinets for decades. It also would create a formal process for the public to request that guidance documents be modified or withdrawn.

“This is good government,” said EPA Administrator Andrew Wheeler in an interview Monday. “If we’re going to rely on guidance documents for whatever reason, those guidance documents should be public and people should know what they say.”

The measure is part of a broader Trump administration effort to rein in agency guidance documents.

The documents -- whether taking the form of frequently asked questions, memos or advisories -- are meant to provide insight on how agencies interpret laws or are implementing legal requirements, not actually impose new mandates. Critics, however, say federal agencies have been more frequently leaning on informal guidance documents to do an end-run around formal notice-and-comment rule making.

President Donald Trump last October signed a pair of executive orders limiting the use of agency guidance, including one requiring the documents be posted online.

The EPA responded by setting up a searchable portal of some 9,000 active guidance documents in February. After unearthing old memos and bulletins, agency staff also tossed out about 800 of them that had outlived their usefulness. Many of those dated to the early 1970s and just “had never been taken off the books,” said Brittany Bolen, associate administrator for EPA’s Office of Policy.

Many of the newly searchable documents were issued before widespread use of the internet and weren’t readily available -- even though businesses can be on the hook for following them, Wheeler said.

“People would write out a guidance document and send it to maybe a dozen organizations around the country that cared about it at the time, back in 1980 or 1985,” and then it would be slipped in a file cabinet and forgotten when staff retired or changed jobs, Wheeler said. “Nobody knew what was out there and then all of a sudden, 20 years later, somebody finds it and says ‘Wait a minute, you guys are doing this wrong, you’re not following this guidance document we issued 30 years ago, and you need to be following it.’ That’s just unfair on its face.”

A major challenge with agency guidance is not just that historically it’s been hard to find -- but also that it is effectively impossible to challenge in federal court. Because courts don’t consider guidance to be “final agency action,” it is not subject to judicial review.

“Guidance can be every bit as important as regulations and statutes, and yet agencies have set it up traditionally -- Republicans and Democrats both -- to put it beyond the reach of judicial review,” said Mike McKenna, a former deputy assistant to Trump.

Under the EPA’s proposed rule, however, people would have the chance to petition the agency to withdraw or modify guidance documents. The agency also would be required to respond to those requests -- setting up a potential final decision that could be challenged in court.

Ignore and Wait

While most guidance documents are meant to provide clarity and answer minor questions about agency rules, some have had sweeping effect -- including changes to EPA permits dictated through memos and other informal documents.

That “puts companies in a bind,” said Jeff Holmstead, an assistant EPA administrator under former President George W. Bush.

“The only way you can challenge it is by basically ignoring the guidance and waiting for EPA to bring an enforcement action,” Holmstead said. “Companies like to know what the requirements are and they like to conform to them, but EPA’s position has been these are guidance documents and therefore they can’t be challenged and if you disagree with us, roll the dice.”

To contact the reporter on this story:
Jennifer A. Dlouhy in Washington at jdlouhy1@bloomberg.net

To contact the editors responsible for this story:
Jon Morgan at jmorgan97@bloomberg.net

John Harney

© 2020 Bloomberg L.P. All rights reserved. Used with permission.

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