If MassDEP Cannot Promulgate New Regulations Absent Compliance with Executive Order 562, What About Guidance Documents?

For your humble blogger, Executive Order 562, recently issued by Governor Baker, is the gift that keeps on giving.  Receipt of a notice today regarding MassDEP’s consideration of its draft vapor intrusion guidance document made me realize that EO 562 does not, at least on its face, apply to the development of guidance documents.

Why does this matter?

Because the use of guidance in lieu of regulatory development is already a significant problem.  If agencies already are too quick to use guidance when they should be going through notice-and-comment rulemaking, precisely to avoid the burden of the regulatory process, imagine the impact that EO 562 could have.

Of course, I understand that guidance documents don’t have the force of law.  They do, however, have the force of the issuing agency behind them.  And we all know how street-level bureaucracy in an agency can ossify what was supposed to be flexible guidance, turning guidance into the worst of both worlds – a document that is treated as  binding by agency staff, but without either the clarity or procedural protections that regulations provide.

May we all live in interesting times.

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