I May Agree With This EPA On Most Issues, But I Still Don’t Like Guidance

Foley Hoag LLP - Environmental Law
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Foley Hoag LLP - Environmental Law

One of the results of the November election that makes me happiest is that I can now go back to being part of the loyal opposition.  In other words, I know that the Administration and I share a common mission and common goals.  We also often share common approaches to achieving those goals, but not always.  And now, in the spirit of friendly cooperation, I know that I can sometimes disagree with the Biden administration on implementation of those goals without undermining my confidence that we are generally on the same page.

And so we come to EPA’s announcement yesterday that it was rescinding the Trump EPA rule on promulgation of guidance.  I bit my cheek hard when that rule was promulgated, stuck to my principles, and supported it – and I still do.

One line in EPA’s promulgation particularly caught my eye, because it represents everything that I object to about the way large bureaucracies handle guidance:

EPA has concluded that the internal rule on guidance unduly restricts the EPA’s ability to provide timely guidance on which the public can confidently rely.

The problem with this sentence is that the regulated community knows that it cannot ever confidently rely on EPA guidance.  Guidance is the dictionary definition of a “heads I win, tails you lose” game.  If the guidance would lead to a result that the agency likes, then it treats the guidance as regulation and requires the regulated community to comply.  If not, then the guidance gets thrown out the window and EPA does what it damn well pleases.

I still think that my analogy of the bureaucratic use of guidance to Judge Roy Bean remains apt, and the discussion of guidance in Appalachian Power v. EPA remains the most cogent explanation of the problem with guidance.

I’m loyal to the current EPA, but I’m in the opposition on this one.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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