EPA, in limiting guidance, undermines past administration policy, critics say

The Environmental Protection Agency (EPA) on Monday finalized a rule that gives the public the ability to weigh in on guidance documents from the agency that further outline how it is implementing various rules — something critics say is a new avenue for gutting the work of prior administrations.

It’s the latest move from the agency to limit guidance documents, which the Trump administration fought with an executive order last October, arguing they can be an end-run around the rulemaking process that allow agency heads to push ahead policy decisions without going through the lengthy formal process.  

“This rule sheds light on guidance document development and provides for public participation in the process for the first time,” EPA Administrator Andrew Wheeler said while announcing the new rule at a Federalist Society event. 

He called the new rule a transparency measure that is “probably the biggest change in a generation” for how the agency conducts its administrative procedures. 

Critics, however, see the measure as one that could give industry groups more avenues to challenge policies they don’t like.

Guidance documents, though technical in nature, can fill in gaps for those regulated by EPA, giving more specific advice on how a regulation will be implemented and what is expected of industry and others.

The EPA has already withdrawn more than 1,000 guidance documents from prior administrations, but the new rule tees them up for removing even more. 

The rule requires the EPA to respond to requests to withdraw a guidance within 90 days, an unusual case of an agency — rather than Congress — imposing a legally enforceable deadline. 

“While it could have benefits for the public seeking to withdraw harmful EPA guidance, 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,” John Walke, a senior attorney with the Natural Resources Defense Council, said when the rule was first proposed in May.

“EPA is establishing a process where industry could drag EPA and all EPA regulations into court for new opportunities to challenge those rules.”

Jeff Holmstead, a former deputy administrator at the EPA under the George W. Bush administration who emceed the Federalist Society event, also questioned Wheeler on whether the new rule would leave the agency tied up in court.

“Maybe it’s because I’m a lawyer, I think of bringing lawsuits, but I assume that if EPA doesn’t follow that [90-day deadline] regulation then someone could attempt to bring a lawsuit,” he said, adding that the EPA could be “inundated with petitions.”

“I’m just anticipating a workload issue.”

Wheeler responded that the deadline was “the subject of much internal debate.” 

“It’s not an opportunity to nitpick on individual lines of a guidance document. So it’s the overall guidance document that people would have to petition. And so I believe after maybe an initial flurry of petitions that we will end up with a manageable workload over time,” he said.

Wheeler also discussed his plans to stay with the agency if President Trump is elected to a second term.

“[Trump] did call me this past spring and told me to start working on my plans and the agenda for the second term,” Wheeler said. “And I certainly intend to remain here. You know, I’m personally committed to remain at least another two years. There’s a number of things I want to see to completion.”