Covington & Burling LLP
May 20, 2020
EPA on May 19 released a proposed rule that would put in place a set of regulations governing EPA’s issuance, modification, and withdrawal of guidance documents. This proposal implements portions of Executive Order 13891, and builds on EPA’s previous efforts to create a comprehensive portal of guidance documents earlier this year. Generally speaking, the stated purpose of the rule is to allow for increased transparency and public involvement in EPA’s guidance-formulation process, but the proposal also contains several key limitations.
Six specific aspects of EPA’s proposed rule, which illustrate its possibilities as well as its limits, are particularly noteworthy:
- Public Comment on Proposed Guidance Would Be Limited to “Significant” Guidance Documents. EPA’s rule would only require notice and comment with respect to “significant” guidance documents, principally those with more than a $100 million effect on the economy and those raising “novel legal or policy issues arising out of legal mandates.” Other proposed guidance documents would not be subject to notice and comment, but would be required to be posted on EPA’s Guidance Portal when finalized.
- Creation of a Petition Process for Withdrawing or Modifying Guidance. EPA proposes to create a process whereby members of the public may petition the agency to withdraw or modify guidance. The proposal would allow EPA up to 180 days to respond to such petitions; if a petition is granted, there is no set timeframe for EPA to then move forward with withdrawing or modifying the guidance. The proposal suggests that EPA’s petition determinations would not be subject to judicial review under the Administrative Procedure Act, as the proposed rule “is for the use of EPA personnel only and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States.”
- EPA May Create Similar Petition Procedures for Regulations. EPA has requested comment on whether it should create a similar petition process for regulations, beyond the basic statutory petition process established by section 553(e) of the Administrative Procedure Act.
- Many Documents that Provide Guidance Are Not Subject to the Rule. The rule excludes a variety of documents from its scope, including the requirement that they be posted online. Excluded categories of documents include:“Internal” guidance not intended to have “substantial” future effect on regulated parties
- Advisory or legal opinions addressing circumstance-specific questions
- Internal legal opinions
- Legal briefs and other court filings
- EPA adjudications
5. EPA May Vary from This Rule at Will. The proposed rule would vest in the Administrator the “sole and unreviewable discretion” to deviate from the rule. Moreover, as noted, the proposed rule suggests that any action taken under the rule is not subject to judicial review.
6. The Proposed Rule Requires Headquarters Political Appointees to Approve Guidance. Pursuant to section 3(b) of Executive Order 13891, EPA may not issue guidance documents without posting them on its website. Before a guidance document could be posted, EPA’s proposed rule would require that the guidance be approved by “[t]he EPA Administrator or other Presidentially-appointed EPA official, or an official who is serving in the acting capacity of either of the foregoing.”
Continued publication of guidance in an accessible, transparent fashion will undoubtedly help regulated parties and members of the public better understand EPA’s guidance on important issues. However, it is far from clear whether the other aspects of the rule will result in any significant change. For example, it is unclear whether the public comment and petition processes will have a significant impact on EPA guidance documents, particularly given that the guidance itself, and petition determinations, would likely not be subject to judicial review.
Separately, as this blog previously discussed, increased transparency and public participation surrounding EPA guidance documents will make them more likely to receive judicial deference, in light of last year’s Supreme Court decision in Kisor v. Wilkie.
Public comments on the proposal are due 30 days from its upcoming publication in the Federal Register.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Brugato and may not reflect the opinions of Synergy Environmental, Inc., Covington & Burling LLP or either of those firms’ clients.