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 It also would create a formal process for the public to request that guidance documents be modified or withdrawn.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
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
The EPA responded by setting up
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
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
“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.”
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