Executive Orders Seek to Limit the Bite of Agency Guidance
On October 9, 2019, President Trump issued two executive orders regarding agency guidance – one focused on the development of new guidance and the other on the appropriate use of guidance in enforcement actions. And EPA is not wasting any time taking action. EPA Administrator Andrew Wheeler issued a memorandum on October 21, 2019 announcing the creation of two working groups to interpret and apply the executive orders. While he did not establish a time frame for completion of the working groups’ review processes, Administrator Wheeler indicated that the working groups would provide the agency with further instructions in the “coming weeks.”
One of the executive orders seeks to ensure that agencies cannot use guidance documents to enforce standards that are not otherwise contained in a statute or regulation. “When an agency uses a guidance document to state the legal applicability of a statute or regulation that document can do no more, with respect to prohibition of conduct, than articulate the agency’s understanding of how a statute or regulation applies to particular circumstances.” If an agency relies on a document or decision to assert a new or expanded claim of jurisdiction, the document or decision must be published in the Federal Register before the conduct over which jurisdiction is sought occurs. The order also requires that regulated parties have an opportunity to contest an agency’s legal and factual determinations before the agency issues that party a no action letter, notice of noncompliance, or other similar document.
The other executive order sets forth more stringent procedures for the development and publication of agency guidance. Within a specified timeframe, all agency guidance must be available on the agency’s website in a single, searchable database. Under the order, agencies are also required review their guidance documents and rescind any that should no longer be in effect. The order also requires agencies to develop (or amend) regulations establishing procedures for issuing guidance documents. At a minimum, these regulations must contain the following provisions:
A requirement that guidance documents clearly state that they do not bind the public, except as authorized by law or as incorporated into a contract;
Procedures for the public to petition for withdrawal or modification of a particular guidance document; and
A more stringent review process, including a public notice and comment period, for “significant” guidance documents.
Each agency will be responsible for addressing these executive orders, but it is clear that EPA has already begun that process. We will stay tuned to see how EPA will incorporate these executive orders into its daily compliance and enforcement activities.