CHAPTER 12 GOVERNANCE THROUGH GUIDANCE: ADMINISTRATIVE RULEMAKING BY INTERPRETATION
| Jurisdiction | United States |
(Sep 2004)
GOVERNANCE THROUGH GUIDANCE: ADMINISTRATIVE RULEMAKING BY INTERPRETATION
Lindquist & Vennum P.L.L.P.
Denver, Colorado
Howard Kenison is a partner in the Denver office of Lindquist & Vennum and a member of the firm's Environmental Law Group. He represents and counsels clients in all areas of environmental law and litigation.
Mr. Kenison served as Deputy Attorney General for the State of Colorado managing the Attorney General's Superfund Litigation Section. He was in charge of prosecuting several Superfund lawsuits including the Rocky Mountain Arsenal Superfund site. While with the Attorney General's office he represented Colorado in an environmental group's NEPA challenge to construction of the Glenwood Canyon Project on I-70.
In private practice, Mr. Kenison has represented a major PRP at the Lowry Landfill Superfund Site and serves as Special Environmental Counsel to the Northwest Parkway Public Highway Authority. Mr. Kenison represented several utility clients in a Clean Air Act enforcement action brought by Colorado alleging visibility impairment in the Mt. Zirkel Wilderness Area. He also represented the City and County of Denver in litigation seeking to recover costs for contamination of the former Stapleton International Airport.
He has presented lectures and papers on environmental law topics including authoring a chapter of Valuing Natural Assets: The Economics of Natural Resource Damage Assessment. Mr. Kenison is Chair of the Environmental, Natural Resource and Energy Law Committee of the American Bar Association's General Practice, Solo and Small Firm Section and is a liaison to the ABA's Standing Committee on Environmental Law. He is a past member of the ABA's Standing Committee on Environmental Law and Superfund Re-Authorization Working Group. He co-chaired the Task Force on Environmental Sustainability for the City and County of Denver's 1999 Comprehensive Plan Update and currently serves on the Board of Advisors for the Colorado Journal of International Environmental Law and Policy. He is a member of the Board of the Sand Creek Regional Greenway Partnership and a past member and Vice-Chair of the State Board of the Great Outdoors Colorado Trust Fund and the Colorado State Board of Parks and Outdoor Recreation. Mr. Kenison served on the National Transportation Research Board's Committee on Environmental Issues in Transportation Law.
He earned his B.A. (1968) from the University of Washington and his J.D. (1972) from the University of Denver. He was admitted to the Colorado Bar in 1972.
I. INTRODUCTION
II. THE ADMINISTRATIVE PROCEDURE ACT
A. What constitutes a "Rule" under the APA?
1. Legislative and Nonlegislative Rules
B. The APA Rulemaking Process.
1. Informal Rulemaking: Legislative (Substantive) Rules.
2. Exempt Nonlegislative Rules.
3. Formal Rulemaking.
III. Legislative Rules, Interpretive Rules and Policy Statements.
A. Distinguishing Legislative Rules and Interpretive Rules.
1. Generally.
2. The Primary Distinctions between Legislative Rules and Interpretive Rules.
a. Legislative Rules are binding on the public and courts; Interpretive Rules are not.
b. Legislative Rules must follow APA notice and comment requirements; Interpretive Rules are exempt.
c. Legislative rulemaking authority delegated by Congress; Agencies have inherent power to issue Interpretive Rules.
d. Legislative Rules can impose new rights and duties; Interpretive Rules cannot.
3. The Binding Nature of Legislative Rules Revisited: Judicial Deference to Legislative and Interpretive Rules.
a. Legislative Rules promulgated within Agency's delegated authority are given Chevron-type deference.
b. Interpretive Rules receive weaker Judicial Deference.
c. Interpretive Rules may, however, persuade courts.
4. Key Judicial Decisions Distinguishing Legislative and Interpretive Rules.
5. Summary of differences between Legislative Rules and Interpretive Rules.
B. Distinguishing Legislative Rules and Policy Statements.
1. Generally.
2. Primary distinctions between Legislative Rules and Policy Statements.
a. Policy Statements are exempt from APA rulemaking; Legislative Rules must follow APA rulemaking procedures.
b. Policy Statements are not binding on citizens or courts; Legislative Rules are binding.
c. Policy Statements are not subject to Judicial Review; courts may review Legislative Rules.
d. Policy Statements receive a weaker form of Judicial Deference; Legislative Rules are accorded Chevron-type deference.
3. Key Judicial Decisions Distinguishing Legislative Rules and Policy Statements.
a. Judicial Decisions applying the "Legally Binding" Test.
b. Judicial Decisions applying the "Practically Binding" Test.
4. Summary of differences between Legislative Rules and Policy Statements.
IV. CONCLUSION
The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation and without publication in the Federal Register or the Code of Federal Regulations ... An agency operating in this way gains a large advantage. 2
I. INTRODUCTION
Hundreds of federal administrative agencies 3 control, command, regulate, administer and enforce a continually expanding range of our nation's business activities through administrative rulemaking. As the quote above indicates, administrative rulemakings are not limited to rules and regulations promulgated through traditional notice and comment procedures. In practice, rulemakings are almost universally followed by an agency's "interpretation" of its rules. Taken together, an agency's organic statute(s), its promulgated rules and regulations, along with its innumerable interpretive documents and policy statements, form a vast, complex regulatory program through which we, as practicing lawyers, must find and plot a safe legal course for our clients.
The United States Environmental Protection Agency (EPA) is but one example, from innumerable possible examples, of an agency that manages and implements a complex regulatory program. EPA, of course, is charged with protecting the nation's environment pursuant to numerous federal statutes. For example, the United States Congress has delegated authority to EPA to administer and enforce statutes 4 as varied and complex as the Clean Air Act, 5 the Clean Water Act, 6 the Resource Conservation and Recovery Act, 7 Superfund, 8 and the Toxic Substances Control Act. 9 These and other organic statutes are the source of EPA's power to command and control the immense federal environmental protection program.
By delegation, Congress has empowered EPA to issue rules and regulations to implement and enforce the environmental programs established in these and other organic statutes. These "legislative" rules must be, and are, promulgated in accordance with APA "notice and comment" rulemaking procedures. Rules issued pursuant to these procedures result in published rules that have binding effect on our clients and their business activities. EPA regulations currently consume thirty volumes of the Code of Federal Regulations, dwarfing the federal Tax Code 10 long credited with being the most complex federal regulatory scheme.
Like all other federal agencies, EPA routinely and regularly issues documents that interpret its organic statutes and legislative rules. These pronouncements, which may be issued without complying with the APA notice and comment requirements, are of ten referred to as "nonlegislative" rules. 11 Among these "nonlegislative" rules are guidance documents, manuals, interpretive rules, 12 regulatory guidance letters, policy statements, memoranda, and similar interpretive and informational documents intended to explain what is meant by, or to fill gaps missing from, the organic statutes and the agency's promulgated regulations. These nonlegislative documents, issued in the thousands each year by federal agencies, are often more critical and important to our client's regulated activities than either the organic statute or the agency's "legislative" regulations. Although not necessarily binding on our clients, the effect of these interpretive rules, guidance documents and policy statements is often as practically binding and effective as if passed by Congress and signed into law by the President.
While well meaning and often helpful, an unending flow of new interpretive documents can, paradoxically, leave our clients without the clarity intended by the agency. Needless to say, where an agency's rules and supporting interpretations and policy statements are issued in the thousands and quite often change previously established norms and standards, it can be quite difficult, at best, for a practicing lawyer to provide meaningful advice to a concerned client.
The purpose of this paper and presentation is to attempt to help the practicing lawyer understand and identify the distinctions that define the legal affect of legislative rules, interpretive rules, policy statements, guidance documents, manuals and similar documents. Knowledge of the distinctions among the different types of rules, interpretations and policy statements may assist counsel in navigating the elaborate regulatory programs of federal administrative agencies and to provide more effective legal counsel to their clients.
This...
To continue reading
Request your trial