The Environmental Protection Agency could be turning more guidance into legally reviewable regulations under a rule announced this week.
In a virtual address to The Federalist Society, EPA Administrator Andrew Wheeler said the agency’s new rule on guidance documents is primarily designed to increase transparency by allowing the public to view all of its guidance documents online.
But he also said he anticipated the agency would be transforming more of its guidance into regulations, which could make it easier for court challenges to be brought, although Wheeler noted that in some cases courts have treated guidance as final agency action that is reviewable.
The rule, which has yet to be published in the Federal Register, will allow submission of petitions to reinstate rescinded guidance documents. It limits petition availability to those documents “due to concerns about the potential administrative burden associated with processing petitions of unknown scope and number to reclassify other categories of documents as guidance documents.”
The rule gives EPA 90 days to respond to petitions. Moderator Jeffrey Holmstead, a former EPA Assistant Administrator for Air and Radiation, wondered whether that deadline would be difficult for EPA to meet.
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Wheeler said “there was considerable discussion” between him and the agency’s assistant administrators on the 90-day deadline, which if missed would allow outside parties to sue. But he said he expected the petitions would be “a manageable number.”
The rule allows the public to comment on “significant guidance documents,” anticipated to have economic effects of $100 million or more.
Also in the address, Wheeler said the agency is working on guidance to implement the Navigable Waters Protection Rule issued earlier this year that narrows federal jurisdiction over “waters of the U.S.” in the Clean Water Act.
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