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Appalachian Power Company v. Environmental Protection Agency
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Appalachian Power Company v. EPA is a case that was decided on April 14, 2000, by the United States Court of Appeals for the District of Columbia Circuit in which the court ordered the removal of a guidance document issued by the Environmental Protection Agency (EPA) because the document instituted a regulatory change without following the required rulemaking procedures.[1]
Why it matters: The court’s holding created an administrative law standard for evaluating guidance documents. Under the standard, a guidance document with practically binding implications must be subject to rulemaking requirements.[2][3][4]
Background
The Clean Air Act of 1990 declared that states must issue permits subject to EPA rulemaking and guidance to particular industrial sources of air pollution. The statute required that the EPA establish minimum elements for the permits such as monitoring and reporting requirements. In 1992 the EPA’s pollution monitoring rules required specific sources of pollution, unable to be monitored periodically, be monitored “sufficient to yield reliable data.”[1] After years deferring to the states’ monitoring standards, the EPA issued a guidance document, entitled “Periodic Monitoring Guidance for Title V Operating Permits Programs” that in effect rewrote the states’ standards. For example, the guidance document requested information previously reported once or twice a year at considerable expense to the power companies, be reported to once a month.[1]
Facing an increase in compliance costs coupled with complications with pending permit applications, the Appalachian Power company joined with other power companies and trade associations to challenge portions of the guidance document.[1]
The EPA argued that the guidance document was within the scope of the original monitoring requirements and, as non-binding guidance, was not subject to judicial review.[1]
What are guidance documents?
- See also: Guidance document, Rulemaking
Guidance is an administrative law term, which describes documents created by government agencies to explain, interpret, or advise interested parties about rules, laws, and procedures. Guidance documents are not legally binding in the same way as rules issued through the administrative rulemaking process.
Oral Argument
Oral arguments were held on February 8, 2000. The case was decided on April 14, 2000.[1]
Outcome
The court of appeals unanimously decided in favor of the Appalachian Power Company. Judge Randolph wrote the opinion joined by judges Williams and Henderson.
Opinion
The court disagreed and held that the guidance in this case reflected a “settled agency position which has legal consequences both for State agencies ... and for companies.”[1] The court also found that the guidance document in effect illegally amended the original rule, and was beyond its scope. Because the parts of the document went beyond the rule’s scope were essentially entwined with the rest of the document, the court set aside the entire guidance document. The court applied the basic rule from Paralyzed Veterans v. D.C. Arena L.P.,[5] to determine if the guidance document was an impermissible rule extension. Here, the court added criteria to better assess the EPA’s actions and created a new test to determine whether a guidance document carries the force and effect of law:
| “ | an agency may not escape the notice and comment requirements by labeling a major substantive legal addition to a rule a mere interpretation…[the court] must still look to whether the interpretation itself carries the force and effect of law, or rather whether it spells out a duty fairly encompassed within the regulation that the interpretation purports to construe.[1][6] | ” |
On applying the test, the court found that the guidance document carried the force of law. "The entire Guidance [document] from beginning to end—except the last paragraph—reads like a ukase. It commands, it requires, it orders, it dictates," wrote Judge Randolph. "Through the Guidance, EPA has given the States their ‘marching orders’ and EPA expects the States to fall in line."[1]
The court held that the guidance document "cannot stand” and ordered its removal.[1]
Impact
Although not decided by the U.S. Supreme Court, this case has held binding precedent on subsequent cases concerning agency guidance.[3][4]
In the 2017 case Sierra Club v. EPA, the United States Court of Appeals for the District of Columbia Circuit ruled that guidance that is not “applied with unyielding rigidity” it is allowed to change how a rule is enforced.[7] The holding did not overrule Appalachian Power Company v EPA, but it did provide an example of the appropriate use of guidance by administrative agencies.[8]
See also
External links
Footnotes
- ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 Justia, “Appalachian Power Company,et al., Petitioners v. Environmental Protection Agency, Respondent, 208 F.3d 1015 (D.C. Cir. 2000),” accessed July 23, 2018
- ↑ Sunstein, Cass, “Practically Binding: General Policy Statements and Notice-and-Comment Rulemaking,” ABA Administrative Law Review, 68 (2016): 491-516.
- ↑ 3.0 3.1 Lexology, “Practitioner Insights: Is Agency Guidance the Low-Hanging Fruit for Regulatory Reform?” March 23 2018
- ↑ 4.0 4.1 JDSUPRA, “Agency Efforts to Circumvent Rulemaking Requirements Proliferating,” September 25, 2012
- ↑ D.C. Circuit Court of Apeals, Paralyzed Veterans v. D.C. Arena L.P., July 1, 1997
- ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Justia, “Sierra Club v. EPA, No. 16-1097 (D.C. Cir. 2017)”, accessed July 23, 2018
- ↑ JDSUPRA, “Sometimes Guidance Actually Provides Guidance,” October 31, 2017
