The U.S. Environmental Protection Agency has developed dozens of guidance documents over the years for air, compliance and enforcement, pesticides and toxic substances, waste, and water. (See EPA’s website listing guidance documents.) These guidance documents were prepared under the premise that industry needs additional information to be able to comply with the requirements placed on them by various environmental statutes and regulation. The problem, of course, is that these guidance documents are not law, i.e., they have not been passed by Congress and have not been promulgated by the EPA through the regulatory procedure of notice to, and comment by, the public.
While the Trump Administration has been busy cutting regulations, they have also been actively placing limits on federal agencies’ use of guidance documents. For example, on November 16, 2017, Attorney General Sessions issued a memorandum prohibiting Department components from issuing additional guidance documents. The Trump Administration went a step further on January 25, 2018, when the Department of Justice issued a memoranudm entitled “Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases.” Under the memorandum, effectively immediately, “the Department [of Justice] may not use its enforcement authority to effectively convert agency guidance documents into binding rules. Likewise, Department litigators may not use noncompliance with guidance documents as a basis for proving violations of applicable law in” affirmative civil enforcement cases. This means that the Department of Justice cannot treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated a rule or regulation. Moreover, it means that the fact “that a party fails to comply with agency guidance expanding upon statutory or regulatory requirements does not mean that the party violated [the] underlying legal requirements.”
This memorandum should provide a possible defense for industry in cases in which a guidance document attempted to clear up a statutory or regulatory requirement that is vague, or in which a guidance document provides additional requirements not set forth in the statute or regulation. It is unclear, however, how this memorandum will affect the use of penalty guidance, which usually provides charts showing how environmental penalties are calculated (and are often used in settlement negotiations for enforcement actions). But this memorandum confirms that, if the EPA wishes to impose a new environmental requirement on industry, they will have to do so via regulations, not guidance documents.
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