Can “Guidance” Ever Be Binding?

Last week, the 9th Circuit Court of Appeals rejected a challenge to EPA guidance that suggested a new statistical method, the Test of Significant Toxicity, for determining the toxicity of discharges subject to NPDES permits.  The Court found that, because it was “nonbinding guidance,” it was not final agency action and was thus not subject to judicial review under the Administrative Procedure Act.

May I ask my legal colleagues to wrap their heads around the concept of “nonbinding guidance?”  Doesn’t the existence of “nonbinding guidance” imply the existing of “binding guidance?”  If not, then the word “nonbinding” would be redundant.  I only wish that it were so.

I’ve ranted on this subject often, I know.  The rant remains valid.  The essence of the problem is that however “nonbinding” the writers of any particular guidance intend it to be, the bureaucrats who implement the guidance can easily convert it into that beautiful misnomer – binding guidance.  And if it’s binding, then it’s a regulation; it’s no longer guidance.

The Court may have gotten this one right.  I’m not sure I agree with the Court’s characterization of EPA’s use of the Guidance here as merely a “mild suggestion,” but it does appear that the TST is not being applied as a ukase.

Still, this case, and others like it, suggest that Courts really need to leave open the possibility of “as applied” challenges to this type of guidance.  If those implementing “nonbinding guidance” treat it as binding, then courts should do so as well – and the formerly “nonbinding guidance” should then be subject to judicial review as final agency action.

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