EPA effort to limit guidance could undermine past administration policy

The Environmental Protection Agency (EPA) announced Tuesday it would limit issuing guidances, a transparency measure that will ensure more public engagement while making earlier administrations’ policies more susceptible to challenges in court. 

The Trump administration has sought to curb the use of guidances, arguing in an executive order in October that agencies should go through the lengthy rulemaking process to implement policy changes rather than drafting memos.

It’s a concern often shared by industry that has occasionally questioned the legal weight of guidances it views as a shortcut. 

The proposal from the EPA cements the public’s ability to petition to scrap certain guidance documents and weigh in on any new ones being considered.

“For the first time ever, EPA is proposing a rule that codifies procedures to ensure the public can engage in the development and review of agency guidance,” EPA Administrator Andrew Wheeler said in a release.

“Historically, EPA has issued many more guidance documents than most federal agencies. Today’s action is a major step toward increasing transparency in EPA processes and ensuring that EPA is not creating new regulatory obligations through guidance,” he added.

The proposal would require the EPA to respond to requests to withdraw a guidance within 90 days, an unusual case of an agency — rather than Congress — imposing a legally enforceable deadline. 

Critics say formalizing the process is likely to leave the agency tied up in court.

“While it could have benefits for the public seeking to withdraw harmful EPA guidance, it’s far more likely to be used and abused by industry seeking to disrupt and worsen a regulatory system that has relied upon guidance for decades,” said John Walke, a senior attorney with the Natural Resources Defense Council.

“EPA is establishing a process where industry could drag EPA and all EPA regulations into court for new opportunities to challenge those rules,” he added.

Walke said the agency is being hypocritical, however. By his count, the EPA under the Trump administration has issued 132 guidances just within the Office of Air and Radiation.

“It’s rich with irony that the Trump administration is proposing this in its 39th month and not its third month, so they’ll escape the obligation to respond to these petitions since this is unlikely to be finalized much before the end of the first term,” he said.

“EPA can still play fast and loose and evade notice and comment rulemaking and adopt guidance that has a binding effect,” he added.

Stan Meiburg, who served as acting deputy administrator for the EPA under the Obama administration, said there are aspects of the rule that are just good governance, such as requiring that all guidances be assembled and publicly accessible. But he’s also worried the agency will lose flexibility to address issues that might require more timely leadership.

“The world is sometimes messy, and reducing discretion may reduce the opportunity for people to do the right thing,” he said.

The proposal earned high praise from many Republican lawmakers. 

“For far too long, EPA circumvented the rulemaking process through its use of guidance documents, which often led to significant burdens on American communities, businesses, and workers. Guidance documents typically have not been subject to a fair and transparent process for public review and comment,” Republicans on the House Energy and Commerce Committee said in a release.

“Today’s proposal creates more accountability and transparency in the guidance process,” they added.

But Walke said the agency has always had the power to issue rules rather than guidances.

“If EPA believes something goes beyond guidance and should be done through notice and comment rulemaking, there’s nothing to stop them from doing so,” he said.