Yesterday, Judge Reggie Walton issued his final decision in National Mining Association v.
Jackson. The decision is another blow to EPA's efforts
to regulate through guidance rather than notice and comment rule
Nothing in the intervening 18 months caused Judge Walton to
alter his views. EPA obviously understood the message from Judge
Walton's prior decision and other cases, such as Appalachian Power, holding that
guidance which functions as regulation will be treated as such by
the court. EPA thus states repeatedly in the Final Guidance that it
is not binding and "does not impose any obligations on private
parties." Judge Walton was having none of it.
Review of the Final Guidance itself and of the
post-implementation evidence before the Court makes clear that the
Final Guidance ... has caused EPA field offices and the state
permitting authorities to believe that permits should and will be
denied if its "suggestions" and
"recommendations" are not satisfied.
Judge Walton found Appalachian Power essentially on all
fours with this case, quoting extensively:
[W]hatever [the] EPA may think of its Guidance generally, the
elements of the Guidance petitioners challenge consist of the
agency's settled position, a position it plans to follow in
reviewing State-issued permits, a position it will insist State and
local authorities comply with in setting the terms and conditions
of permits issued to petitioners, a position EPA officials in the
field are bound to apply.
The entire decision is worth review. Although I am not a fan of
guidance and agree with the decision here, I actually found it less
persuasive than I expected. I assumed that the record would support
a conclusion that EPA is treating the Final Guidance as binding,
but the evidence Judge Walton cited was not fully compelling to me.
If EPA appeals, I'd expect the decision to be affirmed, but I
don't think it's a certainty.
I do think that the final Guidance is functionally a regulation.
Moreover, there is little doubt that EPA and state regulatory
agencies make far too much use of guidance and practically treat
guidance documents as regulation. Whatever the record here, NMA
v. Jackson stands as a useful check on agency overreaching in
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