By: Kevin M. McGuire
“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.” – Associate
Attorney General Rachel Brand.
On January 25, 2018, Rachel Brand, Associate Attorney General, issued a memorandum (“Brand Memo”) evidencing new a policy that prohibits the Department of Justice (“DOJ”) from using its civil enforcement authority to convert federal agency guidance documents into binding rules. DOJ litigators are now prohibited from using guidance documents prepared by other federal agencies– or noncompliance with such guidance documents – to establish violations of law in affirmative enforcement actions.
The new policy, consistent with Trump Administration directives for wholesale regulatory reform, will have a significant impact in the enforcement of requirements under the Clean Water Act and other environmental programs where the Environmental Protection Agency has relied on guidance documents to impose requirements and assess liability where statutes and rules are ambiguous or silent. Enforcement actions must now be based on alleged violations of the underlying law, or formal regulations after they have been subject to proper notice and comment.
The Brand Memo expressly addresses concerns that past DOJ and other federal agencies have used the guidance process to circumvent due process. Federal agency guidance documents are issued without notice and comment because they are not intended to be binding. Rather, they are intended to provide information to regulated entities to assist them understand and comply with regulations. Such guidance is often used, however, to affect a de facto expansion of regulatory burdens without proper notice and comment. Moreover, federal agencies may assert a regulatory violation for failure to follow a guidance document, even though the regulation may be ambiguous or silent on the issue. Finally, even where the federal agency does not intend to use its guidance in contravention of due process, the regulated entity may feel compelled to comply in as a result of advance permitting planning or to avoid the unknown expense of litigating agency rules and interpretations. The coal industry is well acquainted with the costs of challenging the improper application of guidance documents. See, e.g., National Mining Ass’n v. McCarthy, 758 F.3d 243, 251-52 (D.C. Cir. 2014).
Building on the internal due-process strengthening policies of Attorney General Jeff Sessions’ memorandum of November 17, 2017, the Brand Memo mandates that DOJ “may not use its enforcement authority” to convert other federal agency guidance documents into binding rules. Moreover, DOJ litigators may not use “noncompliance with guidance documents” as the basis for proving a violation of law. Henceforth a party’s failure to “comply with agency guidance expanding upon statutory or regulatory requirements does not mean that the party violated those underlying legal requirements.”
The Brand Memo goes on to note, however, that guidance documents may still be used for proper purposes such as explaining or paraphrasing existing statutes and regulations. As such, regulated entities could be able to rely on their compliance with guidance to defend the validity of their conduct or position where a regulation is ambiguous or silent.
At the end of the day, it appears that while guidance documents can no longer be used as a sword, their utility as a shield remains intact.
This article was authored by Kevin M. McGuire, Jackson Kelly PLLC.