On Jan. 25, 2018, the Associate Attorney General issued a memorandum limiting use of agency guidance documents in affirmative civil enforcement cases brought by the U.S. Department of Justice (DOJ). In a move which could have wide-ranging impact, the “Department may not use its enforcement authority to effectively convert agency guidance documents into binding rules” and “may not use noncompliance with guidance documents as a basis for proving violations of applicable law.” The Memorandum does permit the use of guidance for proper purposes to explain or paraphrase regulations or statutory legal requirements, but it may not be used to establish that a party violated the applicable statute or regulation.
This move follows on the heels of a memorandum issued by the Attorney General to all DOJ components on Nov. 16, 2017, prohibiting the creation of guidance which effectively binds private parties without undergoing the rulemaking process, a practice the Attorney General indicated had occurred in the past. Additionally, the DOJ will no longer issue advisory letters or similar documents that purport to create rights or obligations binding on persons outside the Executive Branch, including private parties, state and local governmental entities or tribal entities. Rather, notice and comment rulemaking must be undertaken or if a guidance is issued, specific requirements must be followed, including a prohibition on the use of words like “must,” “shall,” “required,” or “requirement.”
Together, these documents will change the way the DOJ enforces many federal laws and regulations. While environmental enforcement is not the only area impacted by these statements, it certainly is an area where guidance documents are regularly relied upon by agencies such as the U.S. Environmental Protection Agency. Only time will tell how this change will play out, but it will be important for regulated entities to keep an eye out for any “improper” use of agency guidance in enforcement.