The fight about guidance and rules is in the news again. Yesterday, EPA finalized its guidance on Clean Water Act permitting with respect to mountaintop mining.
As most of our readers know, EPA issued Interim Guidance in April 2010. In January 2011, in National Mining Association v. Jackson, Judge Reggie Walton, while denying plaintiff's preliminary injunction, signaled that he thought that EPA's Interim Guidance probably was a legislative rule that should have gone through notice and comment rule-making.
Judge Walton's decision did not deter EPA, which finalized the guidance without significant changes. As the Legal Planet blog – a supporter of the guidance – noted, "the only differences between the interim guidance and this final one are cosmetic." What are the nature of those cosmetic changes? They emphasize the flexible, non-binding nature of the guidance, hoping to fare better in the next round of judicial review than the agency did in defending the Interim Guidance.
The real trick about guidance is that it is not what EPA says in the document that matters; it is how EPA actually utilizes the guidance in practice. It is in some respects similar to the distinction between a facial constitutional challenge to a regulation and an "as applied" challenge. If EPA actually implements this document as a guide to its decision-making, then it is guidance. If EPA line staff implement it by rote, then it's a rule. In other words, if it walks like a duck, it's a duck, even if it does not talk like one.
Time will tell whether the courts believe EPA's protestations that this really is just guidance. Time will also tell whether EPA implements this as guidance or implements it as a rule.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.