No Substitute for Doing It Right (“Guidance” Documents v. Rule-making)

The EPA has recently run into troubles because of its reliance of “Guidance” documents that have not been though the administrative rule-making process under the Administrative Procedure Act (5 U.S.C. § 701, et seq.) This most recent trouble, in the case of Natural Resources Defense Council (“NRDC”) v. EPA, F.3d 2011 WL 2601560 (D.C. Cir. 2011).
In this decision, the court considered the effect of the guidance, particularly, whether the Guidance “announces a binding change in the law”. The court ultimately concluded that the Guidance did reflect a “binding change”, specifically pointing to the fact that, before issuing the Guidance, no other authority (e.g., statute or case law) allowed the EPA to accept alternatives to the Section 185 fees at issue. (Id at 7).
The language of the Guidance document was found to support the conclusion that the EPA has “definitively” interpreted Sec. 172(e) of the Clean Air Act. (Id at 7).
The Court also observed that the Guidance “altered the legal regime” by resolving the question “Is it legally permissible under either section 185 or 172(e) for a State to exercise the discretion identified in the [U.S. EPA Clean Air Act Advisory Committee Task Force letter]?” in the affirmative. The Guidance was found to bind the EPA regional directors and “thus qualifie(d) as final agency action”.(Id at 8).

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