Update on EPA Fracking Guidance - Legal Challenges
Despite requests from industry and environmental groups to initiate formal notice-and-comment rule-making, EPA continues to proceed with its plans to address potential environmental impacts of fracking through guidance documents rather than through rule-making. In theory, use of guidance permits EPA to state its position on an issue more quickly and may thereby assist the regulated community to comply with existing laws more quickly. However, from the perspective of the regulated community, and sometimes the environmental community, guidance that does more than merely explain existing agency regulations or describe how EPA applies those regulations in specific situations can be problematic.
As a matter of due process, guidance should not substitute for regulations adopted through a formal notice-and-comment rule-making. The procedures required under the Administrative Procedure Act (APA) for formal rule-making are essential to provide due process. Following those procedures is also regarded by many courts as a critical prerequisite for judicial review of EPA’s action. Many courts find that guidance is not “final agency action” and therefore is not reviewable under the APA.
EPA reliance on guidance documents to address fracking is legally vulnerable. EPA’s similar reliance on guidance to address mountaintop coal mining was recently held to exceed EPA’s authority under the APA and the Clean Water Act. See National Mining Ass’n v. Jackson, Case No. 10-1220 (RBW) (D.C. Cir.). It is also possible that EPA’s guidance advising states on imposition of ozone fees may have a similar fate. A case challenging the ozone fee guidance, Natural Resources Defense Council v. EPA, Case No. 10-1056 (D.C. Cir.), is currently pending. The rulings in those two cases may be instructive regarding the ultimate decision in IPAA et al. v. EPA, Case No. No. 10-1233 (D.C. Cir.), where industry has challenged EPA’s guidance regarding use of diesel fuel in fracking.
