• Mark Ryan

EPA Proposes New Rule on Guidance Documents

Updated: May 20

The Trump Era EPA rule-making machine continues to pump out new rules at an impressive clip. I can't imagine anyone in OGC is getting any sleep these days.

Today, EPA proposed a new rule to set standards for issuing guidance documents. This rulemaking effort is the result of Executive Order No. 12891, "Promoting the Rule of Law Through Improved Agency Guidance Documents." 84 Fed. Reg. 55237 (October 15, 2019).

Anyone who has worked in the CWA knows how important guidance documents can be. Take the Rapanos Guidance, for example. It set the test for CWA jurisdiction for twelve years. Guidance documents are used to establish policy where the effort to promulgate a new rule through standard APA procedures may be too overwhelming, which is most of the time. Guidance documents, for better or worse, have played an important part of EPA rule interpretations for years.

EPA has now promulgated a new set of rules for issuing guidance documents. There is a lot in the rule, and I won't attempt to cover it all here. There are a number of nip and tucks to current practice (e.g., put all guidance documents on the EPA website with a standardized format for each document), most of which are not game changers. There are a lot of exemptions from the new rule, see below link at pp. 9-10.

The big take-aways are that new guidance documents must go through public notice and comment and there is a new provision to allow the public to petition EPA to withdraw or modify existing guidance documents. This is going to create a huge new workload for EPA, and will likely lead to new avenues for litigation.

For example, guidance documents that are "significant" must go out for public notice and comment. The definition of significance is long (see p. 10 in link below), but it arguably applies to most CWA guidance documents. To avoid litigation, EPA will likely public notice all future guidance documents which will slow down the process considerably. Remember, guidance documents are often issued where the regulated community needs direction on important issues. Or, in the alternative, the agency will forego guidance documents, and deal with nation-wide issues on an ad hoc basis. If you dislike EPA's use of guidance documents, these are good things. If you need explanation of important issues that crop up after a rulemaking or significant court case, the loss or slowing of the issuance of guidance documents will be less welcome.

The authority EPA cites for this new rule is the Federal Housekeeping Statute, 5 U.S.C. 301. How many of you had ever heard of that one before?

Here is a link to the proposed rule, which has not yet been published in the Federal Register.

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