Proposed EPA rule would open guidance documents to public review

The Environmental Protection Agency (EPA) has proposed a new rule aimed at ensuring the transparency of the documents the agency uses to provide guidance in its decision-making process.

The proposed rule would require the EPA to post guidance documents online and would create a formal process for the public to request that guidance documents be modified or withdrawn. The proposed rule complements the consolidated Guidance Portal the EPA established in February.

The rule, docket No. EPA-HQ-OA-2020-0128 published in the Federal Register on May 22, was required by the 2019 Executive Order 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents, which directs federal agencies to finalize regulations that “set forth processes and procedures for issuing guidance documents.”

“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 statement. “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.”

Guidance documents, which can take the form of frequently asked questions, memos or advisories, are meant to provide insight on how agencies interpret laws or are implementing legal requirements, but they do not actually impose new requirements.

EPA guidance documents will continue to be legally non-binding, but the proposed rule could alter how the EPA issues and uses guidance. For instance, the rule would require that before issuing a significant, new guidance document by EPA Regional Office, EPA is proposing that  approval would be needed by the EPA administrator or from a presidentially appointed EPA official.  

A “significant guidance” document is defined as a guidance document that may reasonably be anticipated to: lead to an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles of EO 12866.

The new rules would “improve the ability of members of the public to more easily identify all the guidance documents that the EPA uses and relies upon, resolving any concerns over the difficulty assessing the final and effective guidance of the Agency,” the proposed rule states.

Critics say federal agencies have been more frequently leaning on informal guidance documents to do an end-run around formal notice-and-comment rulemaking. Historically guidance documents have been hard to find and effectively impossible to challenge in federal court. Federal courts do not view a guidance document as a “final agency action” that is subject to judicial review.

The proposed rule seeks to ensure all applicable and relevant guidance documents are easily accessible and reviewed prior to becoming effective.  The proposed rule would establish a public review and comment opportunity for all significant guidance documents, whether that document is new or a modification or withdrawal of an active guidance document. The proposal would provide a 30-day comment period prior to issuance of a final significant guidance document and for any modification or withdrawal of such a document.