In my opinion, the quote of the week last week came from Chicago Tribune reporter Steve Chapman, who wrote, “Trying to point out the mistakes, transgressions and failures of the Trump administration is like trying to load frogs into a wheelbarrow. For every one you get, a dozen get away.” A particularly poisonous frog that the Administration just hatched is a seemingly obscure change in Department of Justice policy with regard to civil lawsuits brought by the government to enforce our fundamental laws.
The Justice Department has now said that their attorneys “may not use noncompliance with guidance documents as a basis for proving violations of applicable law.”
The fundamental task of every federal “mission” agency (e.g. EPA, NOAA, US Fish and Wildlife Service, etc.) is it implement the statutes that Congress has passed and that have become the law of the land. Pollution protections are put in place pursuant to the Clean Air Act, or Clean Water Act or another statute. And the same goes for environmental protections, worker safety rules, fair labor standards and on and on. Suffice it to say that nothing happens when Congress passes a law until one or more agencies and their state, tribal and local partners implement and enforce it.
I doubt many people are shocked when I say that Congress is not always clear on exactly how implementing of the law should be carried out. Most legislation is a negotiated solution to a difficult societal challenge. Whether one likes the solution or not is beside the point. There are still many issues that need to be clarified. It is common practice for agencies to issue guidance documents that essentially say, “this is how we intend to interpret our task under the law.” Without question, such guidance doesn’t have the force and effect of law, but it does what the name implies, guide agency actions, the public, and regulated industry.
Here is a concrete example from my time working at NOAA. Congress passed revisions to the Fishery Management and Conservation Act (FCMA), in fact several times. Each time Congress would instruct the agency to “end overfishing” or “minimize unwanted bycatch” (the catch that is incidental to fishing and is usually thrown away for various reasons), or “take the needs of communities dependent on fishing into account.” Those are important tasks that reflect societal choices that Congress has made on behalf of the nation. But what do they mean in practice? NOAA Fisheries issued guidance essentially informing the public how the agency would interpret these congressional mandates in its regulatory and enforcement actions. And, these guidance documents were shaped by scientific information as well as guiding future scientific analyses and monitoring of the nation’s fisheries.
And after the guidance is issued or revised, fishery management plans, fishery enforcement actions and, yes, civil lawsuits use the guidance, as does the public, to make clear the agency’s interpretation of the law. In large part, guidance documents are critical to government transparency across a huge range of issues from natural resource management such as fisheries to civil rights, consumer protection and public health and safety.
By directing Justice Department divisions and attorneys not to use agency guidance documents as a basis for enforcing the law, the Department has not clarified anything. Quite the opposite.
Many of the guidance documents that agencies have developed are in response to requests for clarification by industry, state, tribal or local agencies or the public. For example, the EPA has a large number of guidance documents related to the Clean Air Act that clarify how testing for air pollution should be done. Another is on requirements for response and enforcement during an air pollution emergency. A third is on the data requirements for states to report Clean Air Act violations. In each of these cases and many more, the guidance is intended to provide greater clarity and more specific standards than the language of the statute. But if the Justice Department won’t use these documents in bringing cases, the alternative is not less or simpler regulation, is it unclear or unenforceable rules.
This is a fair boon to attorneys defending regulated industry because it is another barrier to enforcement of public interest laws. Those barriers to enforcement signal an ongoing tilt of the playing field, toward industry—and particularly bad actors in industry—and away from the public. And ironically this was done by….wait for it….guidance from the Justice Department.