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General Electric Company v. Environmental Protection Agency

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General Electric Company v. Environmental Protection Agency was a case decided on May 17, 2002, by the United States Court of Appeals for the District of Columbia Circuit in which the court held that a guidance document issued by the Environmental Protection Agency (EPA) concerning toxic waste disposal constituted an unlawfully promulgated regulation. The EPA claimed that the document demonstrated an interpretive rule—a form of agency guidance that seeks to clarify an existing regulation. The court disagreed and ruled that the document bound private parties with the force of law and was, therefore, a regulation that the agency had promulgated without adhering to its hybrid rulemaking requirements under the Administrative Procedure Act (APA) and the Toxic Substances Control Act (TSCA).[1][2]

HIGHLIGHTS
  • The case: The EPA issued a guidance document that the agency claimed established an interpretative rule concerning toxic waste disposal. General Electric Company (GE) argued that the guidance document implemented a new regulation and that the EPA had failed to lawfully enact the regulation through the hybrid rulemaking procedures required by the APA and the TSCA.
  • The issue: Does the EPA's guidance document constitute an interpretive rule or new regulation?
  • The outcome: The D.C. Circuit vacated the EPA's guidance document on the grounds that the agency had unlawfully implemented a binding regulation without adhering to its hybrid rulemaking requirements under the APA and the TSCA.


    • Why it matters: The D.C. Circuit affirmed that new agency regulations must be promulgated through the proper rulemaking procedures and cannot be implemented through guidance documents.[2]

    You can review the court's opinion here.

    Background

    See also: Guidance

    The EPA issued a guidance document that aimed to clarify the agency's interpretation of policies concerning the disposal of certain toxic substances known as PCB remediation waste and PCB bulk waste. GE filed a petition for review of the guidance document, arguing that the document constituted a new regulation and that the agency had fail to solicit public comments through the agency's hybrid rulemaking process under the APA and the TSCA. GE also contended that the guidance document was not supported by substantial evidence. The company filed a petition for review of the guidance document, which was granted by the D.C. Circuit.[1][2]

    Guidance is an administrative law term used to describe a variety of documents created by government agencies that aim to explain, interpret, or advise interested parties about rules, laws, and procedures. Guidance documents clarify and affect how agencies administer regulations and programs. However, they are not legally binding in the same way as rules issued through the rulemaking procedures of the APA.[3][4][5]

    Besides interpretive rules, other types of agency guidance include policy statements and contemporaneous guidance. Agencies issue guidance through a variety of documents, including memoranda, notices, bulletins, directives, news releases, letters, and blog posts.[4][6]

    Petitioner's challenge

    The petitioner, GE, challenged that the EPA's guidance document was, in fact, an unlawfully promulgated regulation. GE argued that the agency had implemented binding regulations through a guidance document rather than through the agency's required hybrid rulemaking process under the APA and the TSCA.[2]

    Question presented

    Question presented:

    Whether the EPA's guidance document on toxic waste disposal is an improperly promulgated regulation.[2]

    Outcome

    See also: Hybrid rulemaking

    The D.C. Circuit vacated the EPA's guidance document on the grounds that the agency had unlawfully promulgated new rules by implementing binding requirements through guidance rather than through the hybrid rulemaking process required by the TSCA and the APA. Hybrid rulemaking occurs when Congress mandates that an agency follow certain procedures in addition to those required by the informal rulemaking process—blending specified elements of formal rulemaking into the informal rulemaking process to create a non-standard rulemaking method for use in certain circumstances.[7][8][9] The court held that "the Guidance Document is a legislative rule because on its face it purports to bind both applicants and the Agency with the force of law."[2]

    Chief Judge Douglas Ginsburg outlined the court's reasoning in the case opinion:[2]

    “ [I]t is clear that the Guidance Document is final agency action because it marks the consummation of the EPA's decisionmaking process and it determines the rights and obligations of both applicants and the Agency. The EPA argues that the Guidance Document is not final because it is subject to change and the 'EPA has not completed its decisionmaking process regarding the non-cancer impacts of PCBs.' We rejected a similar argument in Appalachian Power Co. v. EPA, stating: 'The fact that a law may be altered in the future has nothing to do with whether it is subject to judicial review at the moment.' If the possibility (indeed, the probability) of future revision in fact could make agency action non-final as a matter of law, then it would be hard to imagine when any agency rule—and particularly one that must be updated periodically to reflect advances in science—would ever be final as a matter of law.[2][10] ”

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 Ecology Law Quarterly, "D.C. Circuit Invalidates EPA Document as Binding on Its Face," June 2003
    2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 2.7 Open Jurist, "290 F. 3d 377 - General Electric Company v. Environmental Protection Agency," accessed September 6, 2018
    3. ↑ The Regulatory Group, "Regulatory Glossary," accessed August 23, 2017
    4. ↑ 4.0 4.1 Administrative Conference of the United States, "Guidance in the Rulemaking Process," June 10, 2014
    5. ↑ Administrative Conference of the United States, "Recommendation 92-2: Agency Policy Statements," June 18, 1992
    6. ↑ Forbes, "An Inventory of Federal Agency Guidance Documents," March 20, 2018
    7. ↑ Congressional Research Service, "A Brief Overview of Rulemaking and Judicial Review," March 21, 2012
    8. ↑ Center for Effective Government, "Hybrid Rulemaking," accessed August 23, 2017
    9. ↑ The Regulatory Group, "Regulatory Glossary," accessed August 23, 2017
    10. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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