Last year, following President Trump’s executive order directing EPA to rewrite its disastrous 2015 regulation which magically redefined millions of acres of dry land across the nation as federally protected navigable waterways, PLF offered EPA some advice, not only on how to rewrite the rule to make it conform to the limits of the Clean Water Act, but also how to make it stand the test of time through strategic use of the Congressional Review Act. As reported yesterday by E&E News (subscription required), EPA never responded to our advice, and now the agency is in a quandary over how to carry out the President’s instructions to make the definition of “waters” more like actual, you know, “water.”
We had encouraged EPA to submit a 2008 guidance memorandum, which adopted an illegally expansive view of the scope of Clean Water Act power and formed the basis for the land-grabbing 2015 Rule, to Congress under the Congressional Review Act. Congress would then have an opportunity to disapprove the guidance, which would prevent the agencies from using it in any future rules. EPA’s discretion to define “navigable waters” without reference to navigation (or even water) would then be restricted, and Administrator Pruitt could adopt a narrower rule that conforms to the actual text of the Clean Water Act. Best of all, the American public could rest easy that future administrations of the other party could not return to the absurdly broad 2015 regulation, and this issue would stop being a political football which the parties use to sway votes and influence. But, as reported, EPA has not acted on PLF’s recommendation to use the CRA in this way.
Of course, a few law professors make spluttering claims to E&E News that guidance documents are not subject to the CRA, and even that the suggestion violates the “stupidity rule:”
“It would be a stupid way to get rid of a guidance document. [PLF’s proposal] is piling one layer of stupidity on another layer of stupidity.”
I never learned about the “piles of stupidity” doctrine in law school, but I guess we learn new things every day. Professor Richard Pierce (apparently the father of the stupidity doctrine) should know better, though. PLF’s point is not that the CRA was necessary for EPA to rescind the guidance memo. It is that submitting it to Congress under the CRA is a sound strategy to prevent future administrations from reviving the guidance.
As for whether the guidance is subject to the Congressional Review Act, Vermont Law professor Pat Parenteau opines that “policy statements and guidance just don’t qualify under the Congressional Review Act.” But he is wrong: the Act broadly covers “the whole or part of an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy.” See 5 U.S.C. sections 551(4), 804(c). Professor Parenteau’s assertion that this definition never includes guidance documents is baseless. We have previously demonstrated in numerous places that the guidance is subject to the Review Act, and the General Accounting Office, with implementation responsibility over the Review Act, has opined that guidance documents are subject to the Act.