President Trump issued another set of Executive Orders this month claiming to make the regulatory process more transparent and “fairer” to Americans. It does neither. In fact, the whole narrative that federal agencies have “stealth” regulations, hidden away from the public, only to be seen when an EPA staff member leaps out of the bushes and slaps on the handcuffs, is as ridiculous as it sounds. Agencies just don’t work that way. Why would they? Agency staff strive to do the jobs the laws of the country require. It’s that simple.
But it is a convenient, if false, narrative, pushed by those who believe industry should not be held accountable for their actions, to pretend that evil government staff are out to get poor unsuspecting Americans.
Guidance documents are information, not stealth attacks
The Executive Order takes aim at agency “guidance” documents. These are essentially used by agencies to be clear with the public on how they interpret their legal mandates (example below). When Congress passes legislation signed into law by the President (or her/his veto is overridden) it would be nice to think that the language and requirements, including the technical details of implementing that law, are so crystal clear that everyone (and I mean EVERYONE) agrees on what it means. But, unfortunately, that is extremely unlikely.
Some would argue that if the law is unclear to everyone then Congress should clarify it. In practice, that is unrealistic as issues become more and more complex. Congress and their staffs are not experts in the technical details of every issue. But agencies are; their professional staffs are experts on the technical details of the issues that they work on every day.
An example from my own history
Back in the 1990’s I worked for NOAA’s National Marine Fisheries Service (NOAA Fisheries). The primary legislation for managing fisheries in the United States is called the Magnuson Stevens Fisheries Conservation and Management Act. That’s the law that declared that the US would manage its fishery resources out to 200 nautical miles from our coasts for the benefit of all Americans. And to benefit all Americans the US shall prevent overfishing of those resources and obtain the “optimum yield” from its fisheries. There is a bit more language about what optimum yield means in the law with respect to the concept of maximum sustainable yield, but that’s about it. And, there are a set of other standards in the law (ten to be exact) that fisheries management must meet. These are things such as minimizing unwanted catch, protecting habitat, supporting coastal communities, ensuring safety at sea and so forth.
But in practice, what does that mean when a management plan is written? NOAA Fisheries issues a guidance document that explains how it interpreted each of the standards in the law, and how it would apply those interpretations to management. In other words, “we” said what we thought the law was intended to do.
Yet, the agency was roundly criticized for issuing guidance that didn’t have the force and effect of law, but interpreted the statute. Why? Because some industry (recreational and commercial fishing businesses) preferred that the interpretation of the law, which our guidance would clear up, remain vague and therefore much harder to enforce. It is incredibly difficult to write regulations for a complex set of activities. NOAA Fisheries doesn’t manage fish, it manages fishermen. In other words, our job was to manage the human impacts on ocean resources to seek sustainability. If the interpretation of the law is vague, then basically the job of regulation becomes next to impossible. And frankly that is what some people preferred—little or no regulation which was the history of fishing regulation in the US for the first 15 years after the law was passed.
Guidance is guidance
Preventing agencies from issuing guidance documents does two things. It slows down the regulatory process, and it provides even more avenues for industry to bring litigation to stop specific regulations. In other words, if you prevent the agency from issuing formal guidance, then the agency will be sued for not being clear about their interpretation of the statutory mandate—because they are prevented from being clear!
Remember when you hear the industry and administration talking points about this—it’s not stealth regulation, it’s not circumventing public input, but an effort to provide better information for the public and avoid unnecessary litigation and delay in providing public protection.