The Nickel Report

The Environmental Protection Agency (EPA) will be 50 years old this year.  Over the past half-century, EPA has issued literally tens of thousands of documents explaining its extensive regulatory programs.  These guidance documents come in a wide variety of forms.  Some may be signed by the EPA Administrator. Many more are signed by officials in program offices, in the Regions, or even by technical staff.  Some may provide broad national guidance, while others interpret rules in source-specific factual settings.  Guidance may appear in preambles to rules, in response to “frequently asked questions” (FAQS), in applicability determinations, in Environmental Appeals Board decisions, in General Counsel opinions, and in many other ways.  And of course, as Administrations change, guidance may change to reflect new policies.  Anyone who has had to manage environmental compliance is familiar with the challenges of identifying operative agency guidance.

On October 9, 2019, the President signed Executive Order 13891, entitled Promoting the Rule of Law Through Improved Agency Guidance Documents. This Executive Order (“EO”) seeks to promote regulatory transparency and fairness by requiring each federal agency to make its regulatory guidance available to the public on an electronic, searchable database. The EO also requires agencies to establish regulations with procedures for issuing, amending, or rescinding guidance.  On October 31, 2019, OMB issued a guidance memorandum on implementing this Executive Order.

EO 13891 defines “guidance document” as “an agency statement of general applicability, intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation.” As OMB explains, guidance documents subject to the EO are those “designed to guide the conduct of the broader regulated public.”  Guidance of course cannot itself impose binding requirements on regulated entities but may only “clarify existing obligations.” The EO goes a step further, providing that guidance documents as defined in the EO that are not on the agency’s searchable database are “rescinded,” meaning that the Agency may not “cite, use, or rely on” them for purposes other than to establish “historical facts.”

On February 28^th, EPA made public its “web portal” with its initial, searchable list of active agency guidance, organized by program office and Region. EPA has until July 10th to complete its list of active guidance, after which significant guidance can be added to the portal only after public notice and comment.  On May 22d, EPA issued a Proposed Rule to establish procedures for the issuance, modification, and withdrawal of guidance documents. Numerous regulated parties, citizen groups, and others commented, seeking clarification of the scope and applicability of the EO and its impact on existing guidance. EPA’s response to these comments will provide important clarifications regarding the role of the web portal in managing agency guidance.

In this regard, a key question raised by commenters concerns the status of guidance not on the web portal.  As noted above, as a historical matter, EPA’s regulatory guidance has taken a variety of forms and has often varied over time. EPA makes clear on its web portal that this database contains only “guidance documents” as defined by the Executive Order.  As a result, EPA explains, “their omission from this portal,” of documents that do not meet the EO definition—e.g., legal or advisory opinions directed to particular parties —“does not imply that they are deemed rescinded under…the Executive Order.”

Moreover, as the EO makes clear, a document presenting the agency’s views on the meaning of a rule—whether in the context of a particular source or more generally—is still a “historical fact” regardless of its inclusion on the agency’s database.  By its plain terms, the focus of EO 13891 is on preventing agencies from misusing guidance: “No agency may cite, use, or rely on guidance documents that are rescinded, except to establish historical facts.”  The EO does not purport to preclude non-agency parties from continuing to use and to rely on what the Agency has told them historically are reasonable ways of reading its rules. Regulated parties therefore should be able to continue to consult agency documents explaining the meaning of its rules in order to inform their compliance, regardless of whether the document is found on the guidance portal.

Finally, in the words of the Supreme Court’s recent Kisor decision, where an agency has offered alternative readings of its rules over time, this may reflect that there is no “genuine ambiguity” and that there are multiple ways of complying with the rule. The EO ensures transparency and predictability by requiring that, before one of a number of historical interpretations can be cited by the Agency as its nationally-applicable interpretation guiding the compliance of the broader regulated public, the guidance document presenting that interpretation must be on the web portal. As OMB explains, even if “a document [was] ostensibly directed to a particular party,” if EPA in fact “designed [it] to guide the conduct of the broader regulated public,” EPA must include it on the web portal before the Agency can cite or rely on it.