President Donald Trump signed a pair of executiveorders Wednesday that the White House said were meant to curtail what it views as “abuses” of American citizens by federal agencies.
The orders deal with what the administration said is a federal bureaucracy that is “running roughshod” over individuals’ and companies’ legal and constitutional rights: they demand that agencies increase transparency in their regulatory and enforcement processes and reduce what the White House said is an overreliance on informal rulemaking.
Both executive orders address the Administrative Procedure Act. The administration said agencies too often use informal guidance as a work-around to the notice and comment processes the APA demands. So going forward, agencies will have to treat all guidance documents they issue, or have published before, as non-legally-binding.
Until now, the White House said, agencies have sometimes used guidance as a stand-in for formal regulations.
“Even when accompanied by a disclaimer that it is non-binding, a guidance document issued by an agency may carry the implicit threat of enforcement action if the regulated public does not comply,” according to one of the orders. “Moreover, the public frequently has insufficient notice of guidance documents, which are not always published in the Federal Register or distributed to all regulated parties.”
The order says it’s now the policy of the executive branch that agencies only treat guidance documents as binding when they’re part of a contract.
The orders also address what the administration said are “unlawful” and “secret” interpretations of existing law that agencies purportedly use to abuse their authority and impose “unfair surprises” on the industries and people they regulate.
They tell agencies they must provide opinion letters to individuals and companies who ask for an interpretation of how the law applies to their circumstances. All agencies will also need to compile an index of all the guidance documents they’ve issued on a single, searchable website. The Office of Management and Budget will give agencies more specific instructions on how to comply with that particular mandate by early February.
In a fact sheet accompanying the orders, the White House said the actions were meant to prevent a recurrence of cases like those of Joseph David Robertson, a Montana rancher who was convicted and jailed for violating environmental regulations.
According to the Justice Department, Robertson caused widespread damage to tributaries in the Beaverhead-Deerlodge National Forest when he excavated land to build ponds over an existing stream on U.S. Forest Service property, after being repeatedly warned by the Forest Service that he had no legal right to do so. The EPA also said the waterways he was convicted of damaging with sediment were protected by the Clean Water Act.
The White House sees the situation differently.
“A 77-year-old United States Navy veteran was imprisoned and ordered to pay $130,000 after the EPA — under the Clean Water Act — declared several small ponds the veteran created to fight wildfires as federally protected navigable waters,” administration officials said in the fact sheet, which said the case is an example of agencies “threatening families and businesses with unfair and unexpected penalties.”
Russel Vought, the acting OMB director, previewed the administration’s orders earlier in the day in an op-ed published on the Fox News website. He said they were intended to force agencies to stick strictly to the public review and transparency requirements the APA and the Freedom of Information Act already require.
“Large government agencies often allow political agendas to improperly influence their interpretation of the law and how it applies to you. Worse still, they deny you a seat at the table when they do it,” he wrote. “Rogue agencies have for too long used innocuous-sounding ‘guidance documents’ to curtail the freedoms of American farmers, homeowners and small businesses, to name only a few impacted groups.”