A coalition of state attorneys general (AG) sent a letter to House and Senate leadership asking them to stop the Obama administration from keeping states out of the loop by using agency “guidance” documents to impose costly regulations.
“We write today to urge Congress to go further and take concrete action to ensure that federal agencies are in fact providing opportunity for notice and comment for all binding regulatory requirements, acting within their delegated authority, and always rigorously assessing the costs of their regulations,” reads a letter signed by 15 state AGs led by West Virginia AG Patrick Morrisey.
Morrisey and his colleagues are concerned federal agencies, like the Environmental Protection Agency (EPA), are using guidance documents as a way of imposing regulations, which allows agencies to issue a rule without having to consider the costs. The AGs say this violates the Administrative Procedures Act (APA).
“As the chief legal officers of our States, we are concerned that agencies often avoid compliance with the protections Congress established in the APA,” they wrote. “With seemingly increasing frequency, federal agencies are: issuing guidance documents as a way to circumvent the notice-and-comment process; regulating without statutory authority; failing to consider regulatory costs; and failing to fully consider the effect of their regulations on States and state law.”
Morrisey and his colleagues talked about how the EPA issued guidance documents in 2010 to “accept alternative state programs to comply with the National Ambient Air Quality Standards for ozone.”
“EPA styled the document as non-binding guidance to avoid notice and comment, but the U.S. Court of Appeals for the D.C. Circuit disagreed, holding that the document was in practice a binding legislative rule that required notice and comment,” the AGs wrote.
The AGs also mentioned the 2015 Supreme Court decision striking down the EPA’s mercury rule for power plants because it failed to consider the costs it was imposing on the power sector. That rule was damaging because coal plants had already complied or been forced to shut down by the time the Supreme Court had ruled.
The Supreme Court refused to rehear the case against EPA in June when a group of states, led by Michigan, sued the agency after a lower court kept the rule in place.
The Small Business Administration (SBA) has also twice slammed the EPA for not fully considering the costs of its rules.
“We urge Congress not simply to consider legislation but to take action to ensure that agencies engage in transparent rulemaking consistent with separation of powers principles and the laws enacted by Congress,” they wrote.
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