As readers of this blog know, the question of guidance v. regulation is one near and dear to my heart. I generally disfavor guidance, because I think it offers none of the protections of the regulatory process and almost none of the flexibility that guidance is supposed to provide. Two issues are of particular concern. First, guidance is not supposed to announce new rules – only clarifying interpretation of existing rules. However, we all know what a slippery slope that can be. Second, notwithstanding the purported flexibility of guidance, how often do regulators on the street – those actually using the guidance, rather than those writing it – treat guidance exactly like regulations and expect the regulated community to follow it to the letter?
The problem was brought to the forefront again recently by the decision in National Mining Association v. Jackson, in which Judge Reggie Walton in the District Court for the District of Columbia stated that EPA’s mountaintop mining guidance likely exceeded EPA’s authority. Although Judge Walton denied plaintiffs’ request for an injunction because they had not demonstrated irreparable harm, he made clear that the plaintiffs are likely to prevail on the merits. Addressing the core issues I noted above, he stated that the EPA mountaintop mining guidance
Qualified as final agency action because, despite the representation that it is an interim document, it is nonetheless being applied in a binding manner and has been implemented in its current version even though the EPA continues to receive comments about it. Therefore,… it appears that the EPA is treating the Guidance as binding.
Judge Walton went on to conclude that the various documents at issue constitute “legislative rules because they seemingly have altered the permitting procedures under the Clean Water Act by changing the codified administrative review process.” He also found that the documents exceeded EPA’s authority, because they ignored “EPA’s limited role in the issuance of Section 404 permits.”
Relatively hard on the heels of the National Mining Association decision, Daily Environment Report this week covered efforts by industry groups to prevent EPA from issuing guidance interpreting the Supreme Court’s Rapanos decision regarding the scope of Clean Water Act jurisdiction over “waters of the United States.” I’m sorry, but does anyone think that such “guidance” would not be treated in practice as having the finality of regulation? If, under such guidance, certain types of situations are considered to be “waters of the United States,” does anyone doubt that such situations will be subject to CWA permitting requirements 100% of the time?
Agencies officials generally make two arguments in favor of guidance. One is simply to ask for recognition of the practical reality that getting formal notice and comment rulemaking accomplished is very difficult and often impractical in the modern world. The second is that guidance provides flexibility. However, if the regulators want the rest of us to recognize the practical realities involved in promulgating regulations, then they must recognize the practical reality that guidance almost always immediately ossifies and that those implementing it treat it as gospel. There is often little in it for the regulated community.
Until Rand Paul succeeds in dismantling the modern administrative state, the debate will continue.
To your point, I came across an issue regarding DEP’s view of noise from wind turbines. The DEP regulations at 310 CMR 7.00, which I understand date back to those issued by the DEP predecessor Department of Public Health in the 1970s, say essentially in one sentence “thou shalt not make unnecessary noise”. The one page DEP “Noise Policy” adopted in 1990 says a 10dB increase is too much noise. The two page 2003 “Policy Interpretation” explains how the policy will be interpreted. A five page DRAFT Noise Form on the current web site provide futher detailed guidance. A detailed three page letter recently issued by DEP indicates how it will “compliance with the Noise Policy” in accordance with an internal draft policy which has not yet been issued even in draft form, much less made available for public comment. DEP is trying to be helpful here, but no doubt this latest letter interpretation of an internal policy will, as you say, be treated like gospel.
Jamie: Don’t get me started on noise. It is certainly a poster child for this issue. Moreover, DEP has pretty much acknowledged that the issue of noise from wind turbines is tying them in knots. If ever there were an agency — and a particular issue — in which the injunction not to let the perfect be the enemy of the good were applicable, it would be DEP’s approach to noise from wind turbines.