A Victory For Regulation Over Guidance? Are EPA and the Corps Giving Up on Post-Rapanos Wetlands Guidance?

As readers of this blog know, EPA’s use of guidance is a pet peeve of mine.  The issue has arisen with particular force in connection with EPA’s efforts to define Clean Water Act jurisdiction following the Supreme Court decision in Rapanos.  When I last posted on this issue, I noted that any potential theoretical benefits to guidance were being outweighed by the practical reality that issuing guidance on such an important issue ends up taking on many of the trappings of regulation, and thus does not save time or transaction costs.

Sometimes, I’m right.

Almost a year later, no guidance has seen the light of day and Greenwire reported today that, with the guidance stuck at OMB, the Obama administration is considering giving up on the guidance and instead focusing on a rulemaking.  Better late than never.  I don’t think I can improve on what I said last April:

EPA started this process several years ago, presumably not imagining that we’d be sitting here in April 2012  [February 2013] and it still would not have obtained authority to issue the guidance. If EPA had started the regulatory process at the same time, we would probably be equally near to a conclusion, without the necessity to go through the same process twice. Next time, if something requires regulations, just do the regulations and be done with it.

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