The United States Department of Justice has announced it is no longer using its civil enforcement authority to convert federal agency guidance documents into binding rules.
“Although guidance documents can be helpful in educating the public about already existing law, they do not have the binding force or effect of law and should not be used as a substitute for rulemaking,” said Associate Attorney General Rachel Brand. “Consistent with our duty to uphold the rule of law with fair notice and due process, this policy helps restore the appropriate role of guidance documents and avoids rulemaking by enforcement.”
As a result, a failure to comply with guidance documents cannot be used to establish violations of the law in enforcement actions. Alleged violations must now be based on the underlying law or on formal regulations that have been subject to proper notice and comment.
The new DOJ policy, outlined in a memorandum from Brand earlier this year, extends beyond DOJ guidance to include various sister agencies as well.
“These principles should also guide Department litigators in determining the legal relevance of other agencies’ guidance documents in affirmative civil enforcement,” wrote Brand.
Where there are guidance documents for technical issues related to meeting an environmental law or rule, the practice has been to treat these guidance documents as if they were rules. The theory has been that you would obtain regulatory acceptance if you followed the guidance. Especially during the last administration, compliance with guidance documents was assumed to be a regulatory requirement.
What This Means for all Affected Facilities
With this policy change, applicants and entities will be able to argue that strict adherence to a guidance document is not required. This will allow affected facilities with special circumstances not covered in the guidance to formulate and argue for compliance methods that are better suited to their situation or represent a different method of compliance with a similar or better result. Under this approach, such modifications or deviations from guidance documents may be accepted by the agency but could always be reversed by the Justice Department.
An Important Exception
The EPA’s Guideline on Air Quality Models does not qualify for this Guideline policy change because it is required by the Clean Air Act, is subject to notice and comment upon revision and is codified as Appendix W of 40 CFR Part 52. Following the dictates of this Guideline will remain enforceable. Fortunately, the Guideline is not as prescriptive as other guidance documents.