In November, Attorney General Sessions issued a memorandum prohibiting DOJ from issuing regulations disguised as guidance.
Now, DOJ has taken the prohibition a step further. It will no longer rely on guidance issued by other agencies when taking civil enforcement action. The memorandum has made the regulated community and the NGO community sit up and take notice.
I am sympathetic to the concerns raised in the Sessions memo. I hate circumvention of notice and comment rulemaking by guidance. However, as I noted when the memo was released, the problem with guidance documents is not how they are drafted; it’s how they are implemented.
For example, the new memorandum states that:
The Department may continue to use agency guidance documents for proper purposes in such cases. For instance, some guidance documents simply explain or paraphrase legal mandates from existing statutes or regulations.
Well, but in the first instance, who decides whether a guidance document “simply explains or paraphrases legal mandates” or whether it instead “purports to create rights or obligations binding on persons or entities outside the Executive Branch”?
The agency does, of course – perhaps aided by its counsel, DOJ.
This will particularly be an issue where guidance has been in place for many years and has been relied on by both an agency and the regulated community as accurately describing what the law actually is. Take, for example, the New Source Review Workshop Manual. The Manual is not only not a regulation; it’s been in draft for 28 years. Nonetheless, it’s been relied on as the bible for practitioners since then. It might be exempt from this policy, which makes clear that it does not apply to internal training materials. However, when internal training materials are used to say what the law is, that sounds like regulation masquerading as guidance to me.
Here’s another issue. What are the implications of this guidance memorandum for cooperative federalism? In a delegated program, what happens if states continue to rely on guidance documents in enforcing federal obligations? Are we going to have one interpretation under federal law and another interpretation under state law? Can you say “forum shopping”?!
Finally, I cannot resist pointing out the irony inherent in the AG issuing two separate guidance documents on the proper – and improper – use of guidance documents.