EPA on February 28 released a web portal containing links to “all of EPA’s active guidance documents,” as required by last year’s Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” In total, EPA’s portal contains over 9,100 guidance documents, from EPA’s various Headquarters offices and each of its 10 Regions. EPA also notes that it withdrew a number of guidance documents “that were determined to be no longer relevant,” but has not provided a listing of such documents.
Beyond increasing access to guidance documents, EPA’s new portal has two other significant consequences. First, it may have significant implications regarding which EPA interpretations of its regulations will be eligible for Auer deference. Second, EPA is providing a new opportunity for interested parties to request withdrawal or modification of guidance documents, though it remains to be seen how much of a practical impact that will have.
The Guidance Portal & Deference to EPA
EPA’s database has potentially significant implications for deference to its interpretations under last year’s Supreme court decision in Kisor v. Wilkie. As this blog previously discussed, Kisor imposed a number of requirements before agencies may receive Auer deference for interpretations of their regulations, including (1) the interpretation must be one actually made by the agency, reflecting its official position, (2) the interpretation must implicate the agency’s substantive expertise, and (3) the interpretation must reflect the agency’s fair and considered judgment.
The process of compiling and publishing these guidance documents will arguably mean that the first requirement is presumptively satisfied for all listed guidance documents: the guidance documents have been specifically identified and listed as “active” interpretations by the agency. Notably, OMB guidance implementing EO 13891 states that agency portals such as EPA’s should contain “all guidance documents as defined in the EO which the agency expects to cite, use, or rely upon.” Accordingly, the United States has taken the position in litigation that where a final guidance document is listed on such a website, “[i]t is … beyond dispute that the document is not an ‘ad hoc statement not reflecting the agency’s views.’” Brief for the United States at 29, United States v. US Stem Cell Clinic, LLC, No. 19-13276 (11th Cir. filed Dec. 20, 2019).
At the same time, non-binding interpretations not located on the website are likely to fail Kisor’s test: such interpretations arguably would not use the “vehicles … understood to make policy in the relevant context,” nor would they reflect the agency’s “‘authoritative’ or ‘official position,’” as Kisor requires.
In sum, EPA’s website may have a significant effect on substantial portions of the deference analysis under Kisor. It will be important for parties subject to an EPA enforcement action or in litigation to carefully compare any claim of Auer deference to the information available on EPA’s portal, including the date when the guidance document was actually made available.
New Opportunity to Influence EPA
As required by the EO 13891, EPA has also created an online form to allow parties to request modification or withdrawal of listed guidance documents. This represents a significant departure from past practice, where EPA did not have a general formal mechanism in place to request changes to guidance.
However, it is far from clear how significant the ability to request modification or withdrawal of guidance will be in practice. There is little guidance about this petition process, other than a statement in OMB’s guidance that “[t]he agency should respond to all requests in a timely manner, but no later than 90 days after receipt of the request.” Nothing indicates that EPA’s responses must be public or provide any detail. Thus, this mechanism may ultimately have little practical impact. EPA has not yet implemented section 4 of EO 13891, which requires agencies to “finalize regulations, or amend existing regulations as necessary,” relating to various aspects of guidance documents, including “procedures for the public to petition for withdrawal or modification of a guidance document.” Those regulations, when promulgated, may provide additional clarify regarding the withdrawal and modification mechanism.