Sometimes Guidance Actually Provides Guidance

As regular readers know, the tension between guidance and regulation is one of my favorite topics.  My view is that, in general, guidance is too often used simply to avoid notice and comment rulemaking and that, once issued, it is treated by those implementing it in the agency street-level bureaucracy as though it were a rule.  Nonetheless, guidance is sometimes appropriate.  The recent decision in Sierra Club v. EPA is one of those cases.

In 2010, EPA issued guidance on how it would review particulate matter emissions resulting from transportation projects to ensure that the projects conform with state implementation plans for attaining compliance with the NAAQS for PM.  When EPA revised the guidance in 2015, the Sierra Club sued.

The decision is in two parts.  First, the Court ruled that the Sierra Club did not have standing to challenge the guidance with respect to PM2.5, because it had not shown that it would be harmed by implementation of the guidance with respect to PM2.5  The part of the decision that interests me, though, concerns PM10.  There, the Court concluded that the Sierra Club had standing, but found that issuance of the guidance was not final agency action subject to judicial review.  In other words, it was guidance, and not a rule. 

Why?  The key was simply this:  “On its face and as applied, the 2015 changes to the PM10 methodology are not binding.”

Contrary to petitioners’ assertions, this is not a case in which the guidance document signals that the agency “will not be open to considering approaches other than those prescribed” therein. We said of the guidance at issue in Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000), that “from beginning to end . . . [it] reads like a ukase. It commands, it requires, it orders, it dictates.” Id. at 1023. This is no ukase.

What’s really important is that the Court did not just take EPA’s word or rely on the disclaimer in the guidance.  Instead, it looked to how EPA had implemented the guidance in practice and found that EPA had used it flexibly and invited project sponsors to use methodologies other than those described in the guidance.

Score one for guidance.

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