New EPA Rule Boosts Transparency, Stops Informal Regulation

Earlier this month, the Environmental Protection Agency announced a new policy aimed at stopping informal regulation. While this new rulemaking was not headline news amid the pandemic, Americans should praise this action by the EPA.

ALEC CEO Lisa B. Nelson offered the following statement:

“President Trump’s Executive Order to promote transparency at the Environmental Protect Agency creates a clear framework for when the agency should create a new regulation versus clarify an existing one. Too often, agencies use guidance documents to create new policy instead of simply providing more information on current regulations. This action by the Trump Administration promotes transparency and protects the public from potential overreach by the administrative state.”

Informal regulation happens when a government agency changes policy through unofficial means. Informal documents such as guidance documents or memos are meant to help explain an existing government policy. However, intentionally or not, agencies sometimes make major policy changes through these documents.

Perhaps the most well-known example of informal regulation was the 2011 Dear Colleague Letter sent from President Obama’s Department of Education about the requirements of Title IX. The letter fundamentally changed how colleges handle allegations of sexual assault despite never receiving public input as required by the Administrative Procedures Act.

The major problem with informal regulation is that it does not allow the public to comment on policy changes from the federal government. Normally, new regulations from the federal government go through a notice and comment period. A government agency will give notice that it is going to issue a regulation, known as a rulemaking, and then give the public the chance to submit comments.

Public comments on rulemakings can dramatically improve the final regulations. Businesses and trade associations can give technical knowledge about how the regulation will impact their industries and the economy. Non-profit organizations like think tanks can make suggestions to improve the outcomes of a rulemaking or point out costs. When an agency informally regulates, it misses out on this vital feedback.

Under the EPA’s new rulemaking, the EPA must ensure that the public has access to guidance documents. These documents must also be developed with appropriate review. The public can also petition the EPA to modify or change existing guidance documents through the EPA’s new webpage.

“For the first time ever, EPA is proposing a rule that codifies procedures to ensure the public can engage in the development and review of agency guidance,” said EPA Administrator Andrew Wheeler. “Historically, EPA has issued many more guidance documents than most federal agencies. Today’s action is a major step toward increasing transparency in EPA processes and ensuring that EPA is not creating new regulatory obligations through guidance.”

Dozens of elected officials and public policy leaders praised the EPA’s new rule, including Senators Lankford (OK) and Wicker (MS), as well as U.S. House Representatives Shimkus (IL-15) and Graves (MO-6).

The EPA’s rulemaking is hopefully just the beginning. Last October, President Trump issued Executive Order 13891, which states that guidance documents should only clarify existing obligations and that they should not be a vehicle for implementing new, binding requirements on the public. The EPA has provided a great example of transparency for other agencies to follow.