Regulating Guidance As Though It Were Regulation

Posted on September 18, 2020 by Seth Jaffe

I’ve been complaining about guidance for most of the 33 years I’ve been in practice.  The summary of the issue provided in Appalachian Power v. EPA in 2000 still has not been bettered:

Congress passes a broadly worded statute.  The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations. An agency operating in this way gains a large advantage. “It can issue or amend its real rules, i.e., its interpretative rules and policy statements, quickly and inexpensively without following any statutorily prescribed procedures.” The agency may also think there is another advantage-immunizing its lawmaking from judicial review.

Furthermore, much guidance is like that reviewed in Appalachian Power.  “The entire Guidance, from beginning to end-except the last paragraph-reads like a ukase.   It commands, it requires, it orders, it dictates.”

I defy anyone who has dealt with government regulations on a daily basis to say that, in their heart of hearts, they don’t know this to be an accurate description of how guidance comes to be created and used.  Because it is accurate – and as much as it pains me to say so – I support the rule issued by EPA on Monday that regulates EPA’s issuance of guidance documents.

To my friends who are either regulators or in the environmental community, let me suggest that reining in guidance is a good thing for those who believe in government regulation.  While I acknowledge that I am sometimes prone to rhetorical excess, l think it fair to say that the overuse of guidance – and the bureaucratic tendency to implement guidance as though it were a “ukase” – is one reason why government has increasingly been seen as illegitimate.  When those who are regulated see government bureaucrats as modern day Judge Roy Beans – the law north, south, east, and west of the Pecos – then many of us develop deep skepticism about government.

I believe in government.  I want others to do so as well.  That’s why I support regulating guidance as though it were regulation – because it functionally is regulation.

“Purple Haze … Is It Tomorrow, Or Just the End of Time?”

Posted on September 14, 2020 by Samuel I. Gutter

We are in Yosemite, midway through our month-long RV trip out west.  We planned this trip long before the world heard of Covid-19, but decided it was the lowest risk vacation we might take in 2020, so off we went.  After two weeks of hot sun and blue skies in the stunningly beautiful national and state parks of Southern Utah, we headed toward our planned stops in California and Oregon.  And then we hit the wall – the fire wall.

Coming into California through Death Valley and driving north, the normally majestic Sierra Nevada range on our left was barely visible.  At our next stop in June Lake, air quality was determined by the direction of the wind.  When the wind blew from the west, the mountains disappeared and the smell of smoke was everywhere.  There was no hiking – all National Forests in California are closed, with stringent fines for violators, out of concern that even the stray cigarette butt could add to the conflagration.  Further north, huge areas of Oregon that have never experienced wide-scale fires are burning, with devastating consequences.

Driving west into Yosemite on State highway 120, we had to be escorted by Park Service vehicles through areas where local fires are burning trees right up to the edge of the road.  Now at midday, the sky is Martian-orange with heavy smoke from the Creek Fire.  The scene is eerie and apocalyptic.

So instead of heading north to California and Oregon as we had planned, we’re backtracking to Utah and Arizona, before returning home to the East Coast.  For us, it’s a route change and an inconvenience.  For many others, it’s a human and economic tragedy on top of the unprecedent crush of the pandemic.

And it’s an environmental disaster.  The embedded map is from the U.S. government’s AirNow site, www.airnow.gov, and shows unhealthy and dangerous air quality blanketing California and Oregon.  Make no mistake; the fires are the direct consequence of climate change.  Standing among the embers in Oroville, California Governor Newsom said, “This is a climate damn emergency.  This is real and it’s happening.”  www.latimes.com/california/story/2020-09-11/california-wildfires-climate-change-gavin-newsom-trump

To those of us who have spent decades involved in clean air regulations, what is happening now on the West Coast viscerally dwarfs the impacts from controlled stationary and mobile sources.  While hopefully transient in time, this seems worse than any day in the history of Southern California’s smog alerts in the latter half of the last century.  I don’t mean to belittle the long-term importance of emission regulations – they are essential to public health and welfare – but this tragedy is a stark reminder that unless we vigorously deal with global climate change, we will continue to experience very real and immediate consequences, including public health and safety emergencies, on an immense scale.

Not Quite the Same as Making Mexico Pay For the Wall

Posted on September 9, 2020 by Seth Jaffe

As the New York Times has documented, President Trump stated numerous times that Mexico would pay for the border wall. With this context, it was hard not to appreciate the delicious irony when EPA announced last week that it would be financing two separate measures to reduce pollution migrating from Mexico to Southern California.

In other words, not only is Mexico not paying for the wall (and neither is Steve Bannon), but the United States is paying for pollution controls in Mexico! I actually happen to think that this is good news, but I doubt that President Trump is going to be trumpeting this accomplishment to his base. There’s a pretty persuasive argument to be made that avoiding pollution controls is one way that Mexico is able to produce goods more cheaply than the United States. And we’re now financing Mexico’s ability to undercut the price of US manufactured goods?

Instead of requiring Mexico to internalize the externality caused by loose environmental controls in Mexico, we’re subsidizing the externality.

Will wonders never cease?