EPA proposal aims to increase public engagement with agency guidance documents

The U.S. Environmental Protection Agency (EPA) on May 19 announced a proposed rule that intends to facilitate public engagement in the development and review of the agency’s guidance documents.

The proposed rule aims to bring the agency in line with President Donald Trump’s (R) Executive Order 13891, which seeks to prohibit https://ballotpedia.org/Executive_agencyfederal administrative agencies> from issuing binding rules through https://ballotpedia.org/Guidanceguidance documents>. The rule endeavors to increase transparency in the agency’s guidance document processes by establishing an online portal for the public to access active guidance documents, creating procedures for individuals to request that the agency modify or rescind a guidance document, and establishing a public review and comment period for all proposed significant guidance documents, among other provisions. E.O. 13891 defined significant guidance documents as those that have large economic impacts or conflict with other policy priorities.

Republican members of the House Energy and Commerce Committee praised the proposed rule in a press release. “For far too long, EPA circumvented the rulemaking process through its use of guidance documents, which often led to significant burdens on American communities, businesses, and workers. … Today’s proposal creates more accountability and transparency in the guidance process.”

John Walke, a senior attorney with the Natural Resources Defense Council, criticized the proposed rule for what he perceived to be its potential to increase litigation. “While it could have benefits for the public seeking to withdraw harmful EPA guidance,” Walk told _The Hill_, “it’s far more likely to be used and abused by industry seeking to disrupt and worsen a regulatory system that has relied upon guidance for decades.”

Guidance documents advise interested parties about how agencies implement regulations. Unlike regulations promulgated through the rulemaking process, guidance documents are not legally binding. A 1992 report by the Administrative Conference of the United States, however, found that agency officials sometimes use guidance documents in ways that give those documents the same authority as legally binding rules. While some administrative law scholars claim that guidance documents provide clarity that benefits both agencies and regulated parties, others argue that agencies abuse guidance documents by using them to create legally binding rules outside of the rulemaking process.

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