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.