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Agency Guidance CP

Agency Guidance CP ........................................................................................................................ 1 Explanation Page ............................................................................................................................. 3 Agency Guidance CP 1NC................................................................................................................. 4 Solvency Extensions ............................................................................................................... 5 CP Solvency- Nuclear ....................................................................................................................... 6 CP Solvency- Natural Gas ................................................................................................................. 7 CP Solvency- Coal ............................................................................................................................. 8 CP Solvency- Oil ............................................................................................................................... 9 A2: Not Transparent Enough ......................................................................................................... 10 A2: Rollback ................................................................................................................................... 11 A2: Uncertainty .............................................................................................................................. 12 A2: Delay ........................................................................................................................................ 13 A2: Links to Politics ........................................................................................................................ 14 Perms/ Theory ..................................................................................................................... 15 A2: Perm do the CP ........................................................................................................................ 16 A2: This CP is Cheating ................................................................................................................... 17 Aff Answers ......................................................................................................................... 18 Aff: CP Links to Politics ................................................................................................................... 19 Aff: Solvency Deficit- Uncertainty.................................................................................................. 20 Aff: Solvency Deficit-Delay............................................................................................................. 21 Aff: Solvency Deficit- Rollback ....................................................................................................... 22

Explanation Page
This Counterplan functionally has the EPA issue what is called a guidance document to circumvent the enforcement of the regulation that affirmatives will eliminate. The result then is that the regulation that the affirmative has already said is bad is functionally no longer enforced despite its legal existence. For example against the Natural Gas Fracking Affirmative the CP text would look something like this: The United States Environmental Protection Agency should issue a guidance document about the enforcement of hydraulic fracturing in natural gas production. This guidance document should state that fluid disclosure the disclosure of fluids used in natural gas hydraulic fracturing are not necessary for permit issuance. The net benefit to this approach then is that it avoids the political ramifications of official rulemaking because guidance documents are subject to significantly less review than official rulemaking. ***Against Nuke Power Affs you should write the CP text in a similar manner except instead of using the EPA you should have the Nuclear Regulatory Commission be the one to issue the guidance document.****

Agency Guidance CP 1NC


The United States Environmental Protection Agency should issue a guidance document about the enforcement of <area of the plan>. This guidance document should state that <insert relevant deregulation from the plan>. Energy policy guidance documents are enforced Nelson 2011 *Gabriel March 23, Greenwire Bush's Rulemaking Czar Blasts EPA's Use of
'Guidance' New York Times http://www.nytimes.com/gwire/2011/03/23/23greenwire-bushsrulemaking-czar-blasts-epas-use-of-guida-47538.html?pagewanted=all] "The whole idea of guidance not being a rule -- there has to be an arrow shot right through the heart of that," Graham said, adding that Congress should pass legislation "to make sure that things that look like a duck
and quack like a duck are a duck." Graham cited EPA's guidance for its new climate regulations, which tells state agencies how to decide whether new industrial plants are using the best available technology to cut down on emissions that are causing climate change. But other recent memos from EPA, mainly on water quality issues, have prompted lawsuits from the National Mining Association, Kentucky Coal Association and state of West Virginia. After the agency released new guidance on the acceptable impacts of mountaintop-removal mining on nearby streams, federal officials would not approve permits that were similar to ones that were given out before, the mining groups have argued in federal district court in Washington, D.C. The National Mining Association scored an early victory in January when District Judge Reggie Walton said he was likely to reject the guidance for the reasons outlined by Graham and other critics. Officials are

using the 2009 and 2010 memos to make decisions on about 190 applications for coal-mining projects, and "it appears that the EPA is treating the guidance as binding," Walton wrote (E&ENews PM, Jan. 18).

Guidance documents avoid politics- especially true in divided government Raso 2010 [Connor N. J.D., Yale Law School expected 2010; Ph.D., Stanford University
Department of Political Science expected 2010 Note: Strategic or Sincere? Analyzing Agency Use of Guidance Documents The Yale Law Journal January, 119 Yale L.J. 782] Agency leaders facing a Congress and President in agreement on their issue area have a relatively simple means of minimizing political pressure: obey their political principals. This is not to suggest that agencies hold no discretion during unified government. 100 Nonetheless, agencies hold greater slack when Congress and the President are divided. This situation is more likely when different political parties control the two branches. 101 Such division increases the cost of issuing a legislative rule. By contrast, a guidance document is less likely to draw the attention of Congress and the President because it is exempt from the numerous procedural requirements that alert the political branches to agency rulemakings. 102 In short, this Note argues that the advantage of avoiding this attention increases when Congress and the President are divided because the agency cannot please both of its superiors.

Guidance documents have a practical legal effect despite not being actual rules Hunnicutt 1999 [James JD Boston College Law School NOTE: Another Reason to Reform
the Federal Regulatory System: Agencies' Treating Nonlegislative Rules as Binding Law Boston College Law Review December, 41 B.C. L. Rev 153] Rules created without process--interpretative rules, general statements of policy, rules of agency organization and other nonlegislative rules--generally cannot have legally binding effects. 117 In administrative and judicial proceedings, nonlegislative rules are not treated as law, but as influential agency
thought that may factor into a proceeding's outcome. 118 According to the courts, nonlegislative rules cannot be the decisive factor in a court proceeding or enforcement action. 119 For example, in 1986, in Thomas v. New York, the Court of Appeals for the District of Columbia Circuit held that a letter written by the Administrator of the Environmental Protection Agency could not have binding legal effects because it had not been subjected to notice-and-comment process. 120 Several eastern states--including New York, national environmental groups, American citizens owning property in Canada and a Congressman brought suit against Lee Thomas, Administrator of the EPA under President Reagan in the early 1980s, for not revising certain air pollution standards. 121 Prior to Thomas taking the helm of the EPA, Douglas Costle had been the EPA's Administrator under President Carter. 122 Days before Reagan took office, Costle wrote a letter to then Secretary of State Edmund Muskie indicating that based on the findings of an official joint American-Canadian commission, he believed pollution emitted by the United States was responsible for causing acid rain in Canada. 123 According to the 1977 amendments to the Clean Air Act, if the Administrator of the EPA determines that American air pollution is causing significant harm in Canada, the EPA must order the states causing the acid rain to reduce [*172] air pollution. 124 Then, those states would be obligated to intensify the regulation of the private parties contributing to air pollution within the states' jurisdictions. 125 The new Administrator, Thomas, chose to ignore the letter. 126 Intent on reducing acid rain in Canada, the plaintiffs brought suit, arguing that the letter obliged the EPA to force the generating states to revise their air pollution controls. 127 The court found that the letter constituted a rule within the meaning of the APA and that it had not been created as a result of any rulemaking process. 128 The court reasoned that the rule did not fall within any of the 553(b)(A) exceptions because it affected individual rights and obligations by causing the states to heighten their regulations, which would result in the termination or restriction of numerous utilities and manufacturers. 129 Because the EPA had not followed the notice-and-comment process to create the rule, the EPA was not required to constrain its discretion by abiding by the letter. 130 The holding in Thomas evidences the principle that nonlegislative rules cannot have binding legal effects. 131 Reality, however, may differ from this principle. 132 B. Agencies May Try to Apply Nonlegislative Rules as Law Against Private Parties When

agencies treat a nonlegislative rule as law, those rules will have the practical effect of binding law because people tend to acquiesce to that which the government informs them constitutes the law. 133 Most members of the public assume all agency rules constitute legitimate law, so they simply conform to all rules. 134 By treating nonlegislative [*173] rules as law, agencies can convince the public into following nonlegislative rules. 135
Occasionally, agencies rely upon nonlegislative rules for enforcement actions. 136 For example, in 1989 in United States v. Picciotto, the Court of Appeals for the District of Columbia reversed a conviction based upon a nonlegislative rule because, by virtue of prescribing unlawful conduct, the rule imposed binding obligations on the public. 137 In 1981, Concepcion Picciotto began a six year, twenty-four-hour-per-day protest against nuclear war across the street from the White House in LaFayette Park. 138 In 1988 the Park Service issued an "additional condition" without performing any notice-and-comment procedures. 139 The additional condition prohibited the storage of property in LaFayette Park beyond that which is reasonably necessary to stage a twenty-four hour protest. 140 A Park Service police officer arrested Picciotto for violating the additional condition. 141 The United States District Court for the District of Columbia found her guilty and gave her a ten-day suspended prison sentence and six months unsupervised probation. 142 The Court of Appeals reversed the conviction, holding that the additional condition was substantive because it imposed obligations enforceable by criminal penalty, even though the Park Service had created it without notice-and-comment. 143 Although Picciotto won her appeal, this case demonstrates how agencies may create rules without notice-and-comment and treat them as binding law. 144 Besides initiating or threatening enforcement actions based on nonlegislative rules, agencies often rely on them to grant or deny applications and permits. 145 Similarly, federal [*174] agencies can utilize nonlegislative rules to influence programs administered by the states. 146 As the trial court did in Picciotto, courts sometimes agree with the agencies and treat nonlegislative rules as binding law. 147 For instance, in 1993, in United States v. American National Red Cross, the District Court for the District of Columbia issued an injunction against the Red Cross, as part of a settlement, ordering the Red Cross to conform with all of the FDA's nonlegislative rules regarding blood. 148 Concerned with the integrity of the blood supply, the FDA passed numerous legislative and

nonlegislative rules regarding how blood was to be handled. 149 Finding that the Red Cross had failed to meet the standards imposed by the FDA, the court specifically differentiated between the FDA's legislative rules and nonlegislative rules, and ordered the Red Cross to abide by both. 150 Therefore, rules created without notice-and-comment became binding law for the Red Cross. 151 [*175] C. Analysis of the Legal Effects of Nonlegislative Rules The situation in Red Cross must be avoided because it robs the public of the opportunity to offer input on nonlegislative rules. 152 Because the Red Cross, the FDA and the court agreed to this settlement, the FDA's nonlegislative rules regarding blood bind the Red Cross, even though the rules create new law, impose legal obligations, have immediate effects, are not necessarily published in the Federal Register and may have significant effects on the public. 153 Moreover, the public lost the opportunity to participate in the creation of laws that will affect many people, including patients in need of blood transfusions. 154 When courts allow nonlegislative rules to have substantive effects on the public, they undermine the foundation underlying the APA and the notice-and-comment procedures therein. 155 Nonlegislative rules should not impose obligations or immediate effects on the public, and courts and agencies should strive to avoid using them in such a manner. Too often, nonlegislative rules

have a practical binding legal effect because people do not realize those rules are not binding. The parties affected by the rules choose to acquiesce to the rules rather than attract agency attention, they lack the resources to challenge the rules, or they have already fought the rule in court and have given up on the appeals process. 156

Solvency Extensions

CP Solvency- Nuclear
Guidance documents are used to determine the scope of regulations on nuclear power Hashemian 2011[H.M. Hashemian, PhD, DE, founder and president, AMS Corporation 21
January 2011 Nuclear Engineering International USA's first fully digital station http://www.neimagazine.com/story.asp?sc=2058654]
In part, this lengthy process stemmed from the fact that NRCs formal approval process had never been tested by a full digita l I&C upgrade before; Oconee is the first complete RPS/ESPS replacement that the NRC has ever reviewed. Despite

the passage of time since NRCs generic approval of various digital I&C control systems in 2000, NRC review guidance for digital I&C upgrades had remained current (and in fact had been updated in 2007 [SPR revision 5]). Moreover, NRC was developing additional guidance in the form of interim staff guidance documents as the Oconee upgrade proceeded to provide additional clarification to support the Oconee review. Although Duke was forced to juggle new guidance from NRC simultaneous to its submittal efforts for
Oconee, it continually reviewed its submission data with the NRC to ensure that it was providing the type of information the NRC needed to perform a review.

CP Solvency- Natural Gas


EPA guidance documents create policy on natural gas fracking Gehan 2012 [Shaun M. Kelley Drye & Warren LLP May 15 EPA issues new guidance on
fracking with diesel fuels http://www.lexology.com/library/detail.aspx?g=d67a341e-7c294b8b-aa3f-a1d3495d039f]
Action is hot and heavy on the regulatory front. Just

this past week, EPA announced its proposal for permit guidance for fracking operations utilizing some form of diesel in injection fluids, and the Bureau of
Land Management proposed regulations for operations occurring on public lands and Indian territory. Meanwhile, states such as Tennessee and Ohio have announced tighter new rules. These initiatives have received widespread publicity and are far too complex to detail here. We do have some thoughts and observations worth sharing, starting today with the EPAs new guidelines. The EPAs Guidance Issued under its Safe Drinking Water Act (SDWA) authority, the EPAs guidance document, runs to 54 pages and is accompanied by a Federal Register notice requesting extensive information and comments. EPA

purposefully uses the term guidance, rather than rule, as guidance documents do not need to go through required rulemaking procedures. These include notice and comment and processes required by the Regulatory Flexibility Act, the Paperwork Reduction Act, and others.

CP Solvency- Coal
Guidance documents are used to clarify coal regulations Nelson 2011 *Gabriel March 23, Greenwire Bush's Rulemaking Czar Blasts EPA's Use of
'Guidance' New York Times http://www.nytimes.com/gwire/2011/03/23/23greenwire-bushsrulemaking-czar-blasts-epas-use-of-guida-47538.html?pagewanted=all]
But other recent

memos from EPA, mainly on water quality issues, have prompted lawsuits from the National Mining Association, Kentucky Coal Association and state of West Virginia. After the agency released new guidance on the acceptable impacts of mountaintop-removal mining on nearby streams, federal officials would not approve permits that were similar to ones that were given out before, the mining groups have argued in federal district court in Washington, D.C. The National Mining
Association scored an early victory in January when District Judge Reggie Walton said he was likely to reject the guidance for the reasons outlined by Graham and other critics. Officials are

using the 2009 and 2010 memos to make decisions on about 190 applications for coal-mining projects, and "it appears that the EPA is treating the guidance as binding," Walton wrote (E&ENews PM, Jan. 18).

CP Solvency- Oil
Guidance decisions determine regulations on oil drilling Marcellus Shale Coalition 2010 *White Paper Source Determination for the Oil and Gas
Industry submitted to Pennsylvania Department of Environmental Protection, Bureau of Air Quality September http://marcelluscoalition.org/wp-content/uploads/2010/10/MSC-AirQuality-Position-Fall-2010.pdf]
As the BAQ is aware, EPA

has recently addressed the issue of CAA source determinations in the oil and gas industry in a guidance document from the EPA Office of Air and Radiation (McCarthy
Memo). 6 The McCarthy Memo withdrew earlier guidance from EPA which concluded that the three prong aggregation analysis for oil and gas activities should begin by looking at and focusing more heavily on the proximity of the surface locations. 7 The

McCarthy Memo recognized that source determinations in the oil and gas industry will continue to be complex, and re-emphasized that the regulations list three criteria to be used in the analysis. The McCarthy Memo then acknowledged that there will be cases in which proximity is the overwhelming factor, but the agency is not going to prejudge that by using a simplified approach, and that reasoned decision-making of each of the relevant factors needs to occur on a case-by-case basis. 8

A2: Not Transparent Enough


Guidance documents have significantly increased transparency- new OMB bulletin Schillaci 2007 *William C. author of the book Most Misunderstood Regs March 27, Reining in
Guidance Documents http://enviro.blr.com/whitepapers/ehs-management/epaenvironmental-protection-agency/reining-in-guidance-documents/] The proliferation of guidance documents released by EPA and other U.S. agencies has created a layer of crypto-regulations that may inappropriately expand the power of the agencies and substantially increase the compliance burden on regulated business. To help clarify the role of guidance documents and the manner in which they are to be developed and made available, the federal Office of Management and Budget (OMB) has published a bulletin called Agency Good Guidance Practices (GGP). The publication contains requirements that agencies must meet to "increase the quality and transparency of agency guidance practices," according to OMB.

A2: Rollback
Guidance documents dont get rolled back- even when there is a change in leadership at the EPA Raso 2010 [Connor N. J.D., Yale Law School expected 2010; Ph.D., Stanford University
Department of Political Science expected 2010 Note: Strategic or Sincere? Analyzing Agency Use of Guidance Documents The Yale Law Journal January, 119 Yale L.J. 782+
Several interesting patterns emerge from these data. Agencies that used

significant guidance documents more often than average, such as the EPA and the Department of Labor, revised their guidance infrequently. For instance, the [*818] Bush EPA declined to revise several of its guidance documents detailing proper procedures for conducting risk assessments. 157 Such guidelines have significant implications for the projected net benefits of particular regulations and therefore may influence the stringency of environmental regulation. Although the leaders of the Bush EPA may have been expected to hold different views on this subject from their predecessors in the Clinton Administration, they declined to revise a number of their guidance documents As previously noted, a number of the revisions to significant guidance were highly technical and did not
fundamentally alter policy. For instance, virtually all Federal Aviation Administration (FAA) (housed within the Department of Transportation) revisions focused on airplane safety standards. Most of these changes were motivated by findings from FAA inspectors or the airlines. 158 Including such technical revisions therefore overstates the extent to which agency leaders modified guidance documents to move policy toward their ideological preferences. Guidance

documents appear to be

modified less frequently than legislative rules. Calculating the proportion of legislative rules modified by agencies
is complicated by the lack of data counting the number of outstanding rules for each agency. Moreover, no official count of rule revisions exists. The best available data come from a recent Government Accountability Office (GAO) report summarizing rule revisions for eight agencies over a one-year period. 159 These revisions are compared to the total number of rules issued by agencies in the preceding eleven years (see Table 5). 160 This analysis uses the best available data, but it likely understates the frequency of legislative rule revisions because it captures only one year of revision. Nonetheless, the

results show that the Consumer Product Safety Commission, Department of Justice, Department of Labor, and Small Business Administration all revised legislative rules more frequently than the average revision rate for guidance documents. This was true for a number of the individual agencies for which data were available, [*819] including the Environmental Protection Agency, Department of Labor, and
Department of Transportation.

A2: Uncertainty
CP implementation is sufficiently certain for investors Anthony 98 (Robert A., Foundation Professor of Law George Mason University School of
Law, Unlegislated Compulsion: How Federal Agency Guidelines Threaten Your Liberty, Cato Policy Analysis No. 312, 8-11, http://www.cato.org/publications/policy-analysis/unlegislatedcompulsion-how-federal-agency-guidelines-threaten-liberty)
All too often, though, agencies try to lay down binding rules without observing the procedures required by Congress. Those are called "nonlegislative rules." Agencies

put forth memoranda, circulars, bulletins, guidance, manuals, press releases, policy statements, staff instructions, and similar informal documents. Even though those documents do not have legally binding effect, they have practical binding effect whenever the agencies use them to establish criteria that affect the rights and obligations of private persons. Except to the extent that
such documents merely interpret existing law, it is improper to impose them with binding effect. Indeed, it is nothing short of autocratic or despotic for officials to take the unauthorized action of placing obligations on citizens without honoring the procedural requirements. The courts should strike down such actions, which have no place in our system of limited government under the rule of law.

A2: Delay
There is no reason there would be a delay in not enforcing a regulation- force them to explain a timeframe and an impact to that differential- the CP solves sufficiently fast Nelson 2011 *Gabriel March 23, Greenwire Bush's Rulemaking Czar Blasts EPA's Use of
'Guidance' New York Times http://www.nytimes.com/gwire/2011/03/23/23greenwire-bushsrulemaking-czar-blasts-epas-use-of-guida-47538.html?pagewanted=all] Officials are using the 2009 and 2010 memos to make decisions on about 190 applications for coal-mining projects, and "it appears that the EPA is treating the guidance as binding," Walton wrote (E&ENews PM, Jan. 18).

A2: Links to Politics


The CP changes the way that energy regulations are enforced but doesnt link to politics Schillaci 2007 [William C. author of the book Most Misunderstood Regs March 27, Reining in
Guidance Documents http://enviro.blr.com/whitepapers/ehs-management/epaenvironmental-protection-agency/reining-in-guidance-documents/] "The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The Agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the Agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the Agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations."

Informal rulemaking ensures less Congressional backlash Hamilton and Schroeder 1994 [James T. Hamilton is an assistant Professor of Public Policy,
Economics and Political Science at Duke University, Christopher H. Schroeder is a Professor of Law at Duke University School of Law Strategic Regulators and the Choice of Rulemaking Procedures: The Selection of Formal vs. Informal Rules in Regulating Hazardous Waste http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4229&context=lcp]
3. As the regulatory costs imposed on parties increase, the more likely the parties will resist and, hence, the more likely the agency is to use informal rulemaking. Industry interest groups may attempt to weaken costly formal rules by commenting on them during the formal rulemaking process or by challenging them in court. Similarly, environmentalists may attempt to strengthen provisions through submissions and court challenges. Regulatory costs for industry include expenditures arising from compliance and enforcement actions, while costs for environmentalists may relate to the potential environmental damages posed by the activity regulated. The more at stake for regulated parties and other intervenors, the more likely the agency may be to issue the rule informally. Issuing

a costly rule through the informal process has several advantages for the agency: it makes input from interest groups less likely than under the formal process; reduces the ease with which Congress may monitor agency performance and hence lessens the ability of interest groups to "pull the fire alarm" on agency actions; lessens the probability that an interest group will
be able to challenge the rule in court as informal rules lack the long administrative records of formally published rules; and enables the agency to alter costs of compliance for particular parties since informal rules may be applied with more discretion than formal rules.

Empirical data proves agencies use informal rulemaking to circumvent controversy Hamilton and Schroeder 1994 [James T. Hamilton is an assistant Professor of Public Policy,
Economics and Political Science at Duke University, Christopher H. Schroeder is a Professor of Law at Duke University School of Law Strategic Regulators and the Choice of Rulemaking Procedures: The Selection of Formal vs. Informal Rules in Regulating Hazardous Waste http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4229&context=lcp]
An alternative explanation for the over 19,500 pages of OSWER documents is that they are simply clarifications that spell out the requirements of the formally published rules. If this were the case, however, there would be few differences between those CFR rules with and without OSWER documents, except perhaps in terms of which rules were more technical and thus required elaboration. We

have presented hypotheses about why the agency may strategically choose to issue requirements informally and tested these with data from the rules implementing RCRA. Our results are consistent with a strategic agency that chooses informality when it wishes to provide for greater discretion in agency actions, to establish rules that entail major costs, to promote standards that involve controversy, to provide for individual negotiations over issues that involve smaller numbers of facilities, and to avoid congressional and judicial scrutiny and constraints as signaled by actions such as
court remands.

Perms/ Theory

A2: Perm do the CP


If we prove the CP is theoretically acceptable that should frame the issue of competition Guidance documents are meaningfully distinct from rulemaking Raso 2010 [Connor N. J.D., Yale Law School expected 2010; Ph.D., Stanford University
Department of Political Science expected 2010 Note: Strategic or Sincere? Analyzing Agency Use of Guidance Documents The Yale Law Journal January, 119 Yale L.J. 782+ The term "guidance document" suggests a wide variety of regulatory materials. Examples of such materials include general agency interpretations of existing legislative rules, statements outlining how an agency intends to regulate an evolving policy area, training manuals written for internal agency staff, compliance guides directed to the general public, advisory opinions tailored to individual case facts, and memoranda from agency leaders providing direction to agency staff members. As these examples suggest, agencies use guidance documents both to manage internal operations and to communicate with outside parties. "Legislative rules" 13 are the administrative equivalent of public laws passed by Congress. Like public laws, legislative rules are legally binding, generally applicable, and nonretroactive. 14 Before issuing a legislative rule under the Administrative Procedures Act's (APA) informal rulemaking process, agencies are required to provide notice of the proposed text and to accept public comments. 15 Agencies must also complete a number of lesser-known procedural requirements before issuing a legislative rule. 16 Guidance documents are not subject to any of these requirements, however. 17

This is specifically true in the context of the EPA Gehan 2012 [Shaun M. Kelley Drye & Warren LLP May 15 EPA issues new guidance on
fracking with diesel fuels http://www.lexology.com/library/detail.aspx?g=d67a341e-7c294b8b-aa3f-a1d3495d039f] The point is that EPA, and other agencies, tend to prefer guidance documents because they can be issued quickly and without the procedural give-and-take and analysis accompanying rulemaking. Also, guidance documents cannot be challenged under the Administrative Procedure Act or otherwise, because, by definition, they impose no legally binding requirements. That is not to say that courts will simply take an agencys word that a particular set of guidance is
There are other similar examples. not a stealth rule. But the barriers to challenging something like this particularly when issued in draft form are extremely high.

There is no way the plan could be interpreted as the CP- Guidance documents are not a law- practical effect is irrelevant- the perm severs the certainty of administrative law Hunnicutt 1999 [James JD Boston College Law School NOTE: Another Reason to Reform
the Federal Regulatory System: Agencies' Treating Nonlegislative Rules as Binding Law Boston College Law Review December, 41 B.C. L. Rev 153]
To distinguish whether a rule is nonlegislative or legislative, courts consider whether the rule is "substantive" in nature. 77 If a rule has substantive effects, it should have been promulgated as a legislative rule, and therefore, the agency should have performed notice-and-comment to create it. 78 The courts have examined the following factors: * Nonlegislative

rules do not create law, while legislative rules may impose or remove legal rights and obligations or produce other significant effects on private parties. 79 * If evidence shows an agency intended for a rule to have substantive effects or to legally bind the public, then it is probably a legislative rule. 80 [*166] * Nonlegislative rules leave agency decisionmakers free to exercise discretion, while legislative rules constrain agency discretion. 81 * Nonlegislative rules employ tentative language, such as "may," while legislative rules use mandatory language, such as "will." 82 * Agencies should publish legislative rules in the Federal Register, whereas agencies need not publish nonlegislative rules. 83 * An agency's contention that a rule is nonlegislative shall
carry some weight, but will not be dispositive in a court's determination whether or not the rule should have been subjected to notice-and-comment rulemaking. 84 [*167] * Interpretative rules interpret law while legislative rules create law. 85 * General statements of policy operate prospectively and speak to future contingencies, but legislative rules have immediate impacts. 86 * Rules of agency organization apply only to internal agency machinations. 87 The United States Court of Appeals for the District of Columbia Circuit considered several of these factors in 1987, in Community Nutrition Institute v. Young, where the court held that certain rules which the FDA had labeled as nonlegislative were actually substantive, and thus should have been adopted as legislative rules. 88 The court found the rules to be substantive because they imposed immediate legal obligations on food producers, they constrained agency discretion and the FDA had referred to them as having the force of law. 89 The Community Nutrition Institute ("CNI"), a public interest group, and other public interest organizations, brought action against the Commissioner of the FDA for granting "action levels" the force and effect of law, even though the FDA produced them without conducting noticeand-comment process. 90 The FDA had been initiating enforcement proceedings against food producers if their goods exhibited levels of aflatoxins--unavoidable contaminants found in foods such as corn--greater [*168] than the action levels. 91 Concerned that the action levels were too low and failed to adequately protect public health, the CNI contended that the action levels should have been adopted only after following notice-and-comment procedures. 92 The FDA argued the action levels fell within the nonlegislative rule exception of 553(b)(A). 93 The

court reasoned that the rule establishing the action levels used mandatory language and created immediate and binding effects. 94 Specifically, the rules
declared that if a food product met an action level, the food "will be deemed" to be contaminated. 95 Also, the court found it compelling that the FDA had occasionally intimated that action levels established binding norms. 96 The FDA would not initiate enforcement proceedings against food producers that had amounts of contamination less than the action levels. 97 Thus, the court held that the action levels constrained agency discretion. 98 Also, the court found that the rules were substantive because the FDA required food producers to seek exemptions to the action levels. 99 The court found that if private parties must obtain exemptions to circumvent an agency's rules, then the agency intends for those rules to be substantive. 100 Therefore, the court held that the action levels were substantive and should have been produced only after notice-and-comment, and thus were invalid. 101 [*169] 2. Some Courts Still Use "Substantial Impact" as a Factor Some courts--including the Fourth and Fifth Circuits--use "substantial impact" as a factor to determine whether a rule should have been promulgated following notice-and-comment procedure. 102 If a rule has a substantial impact on private parties, then it is a legislative rule. 103 The courts do not provide extensive explanation as to what qualifies as "substantial impact," but the case law suggests that if a rule imposes upon private parties dramatic economic changes, the rule has a substantial impact. 104 Since the Supreme Court's decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council in 1978, however, the test has fallen into disfavor and most courts ignore it. 105 3. The "Public Good" Should Not Be a Factor Litigants have argued that public policy should enter into courts' decision-making, but courts generally rule only on process and do not [*170] incorporate the "public good" into their analyses. 106 Most courts rule that they have only the authority to review whether agencies followed prescribed procedures and whether agencies violated the law, but not whether agencies have formulated flawed opinions. 107 An agency is, ideally, composed of experts in the particular field over which it

regulates, and a judge is, ideally, an expert in the field of law. 108 In principle, judges do not substitute agency thinking with their own opinions. 109 Instead, courts generally review agency process, not agency judgment. 110 Hence, courts tend to analyze the agency's procedure rather than the real world policy effects of agency judgment. 111 As a result, the duty to provide for the public good remains with Congress and the agencies. 112 II. THE LEGAL EFFECTS OF RULES Depending on whether a rule is adopted with or without notice-and-comment process, the rule will have different legal effects. 113

Legislative rules produced after notice-and-comment procedures constitute substantive law and legally bind both agencies and private parties in future legal and administrative proceedings. 114 Conversely, nonlegislative rules generally may not have binding legal effects. 115 Nonlegislative rules, however, sometimes have practical legal effects. 116

The aff should have to defend the functional mandates of the plana. Teaches decisionmaking which is the most portable skill that debate teaches- purely textual competition encourages semantic debates and scramble perms b. Most real world- if one policy is functionally distinct from another and there is a net benefit to that change then real world decisionmakers would consider them separately c. Most fair- the alternative is textually competitive CPs that really actually do the plan- the aff always has a fallback functional difference from which they can garner offense

A2: This CP is Cheating


The CP is a logical opportunity cost- the decision to do the plan as a rule forgoes the option of doing it as a guidance document Guidance documents are key debates in the lit Raso 2010 [Connor N. J.D., Yale Law School expected 2010; Ph.D., Stanford University
Department of Political Science expected 2010 Note: Strategic or Sincere? Analyzing Agency Use of Guidance Documents The Yale Law Journal January, 119 Yale L.J. 782+ Scholars and policymakers alike have devoted increasing attention to a seemingly obscure question: do federal agencies improperly issue "guidance documents" 1 in place of legally binding "legislative rules" on a widespread basis? 2 This attention has been motivated by concern that agencies
frequently use guidance documents to avoid procedures 3 intended both to facilitate public participation in the regulatory process and to enable the elected branches of government to monitor agencies more easily. 4 The

scope of this loophole is potentially vast. Guidance documents greatly outnumber legislative rules, 5 [*786] which in turn are approximately ten times more common than enacted legislation. 6 As a result, agency use of guidance documents is an important issue in administrative law. This Note provides the first
large-scale empirical analysis of this issue, probing newly available data to determine whether agencies commonly issue guidance to avoid the notice and comment process.

Education and literature should define what are acceptably fair CPs - we should accurately attempt to simulate the debates to make decisions on policy issues- decisionmaking is the most portable skill of debate- helps in all walks of life The CP is not unfair- solid literature exists to say that the CP would not be enforced- The Aff should be prepared to defend actual implantation of a rule rather than tacit agreements We only have to defend the CP that we read- forcing us to defend all process CPs obscures the question of whether THIS CP is acceptable The CP is necessary to counteract Aff bias- they get away with myriad UQ tricks and try or die framing- having a CP to counteract that is essential to ensure negative debating success

Aff Answers

Aff: CP Links to Politics


New regulations on guidance documents ensure it links to politics Schillaci 2007 *William C. author of the book Most Misunderstood Regs March 27, Reining in
Guidance Documents http://enviro.blr.com/whitepapers/ehs-management/epaenvironmental-protection-agency/reining-in-guidance-documents/] The proliferation of guidance documents released by EPA and other U.S. agencies has created a layer of crypto-regulations that may inappropriately expand the power of the agencies and substantially increase the compliance burden on regulated business. To help clarify the role of guidance documents and the manner in which they are to be developed and made available, the federal Office of Management and Budget (OMB) has published a bulletin called Agency Good Guidance Practices (GGP). The publication contains requirements that agencies must meet to "increase the quality and transparency of agency guidance practices," according to OMB. Guidance
documents come in many forms in addition to materials that are specifically labeled as "guidance." Examples include interpretive memoranda, policy statements, manuals, circulars, bulletins, advisories, and letters of interpretation. In fact, any agency document that is not a rule but is generally applicable to requirements that must be met by categories of regulated sectors would qualify as guidance. A letter or other form of communication that is intended to apply to a specific site or facility would not be considered guidance under the definition of the GGP bulletin, and therefore would not need to meet the conditions set forth therein. The

major concern addressed by the GGP is that guidance documents sometimes slip into regulatory programs without having undergone public notice and comment required for formal rulemaking by the Administrative Procedures Act (APA). Some agencies have employed guidance documents to "interpret" obscure statutory language. Lacking implementing regulations, such interpretations by agencies do not necessarily carry any more weight than anyone else's interpretation. However, in some cases, guidance documents have been wielded by agencies with the same force normally
reserved for regulations.

Guidance documents link to politics- people hate the Obama ones Nelson 2011 *Gabriel March 23, Greenwire Bush's Rulemaking Czar Blasts EPA's Use of
'Guidance' New York Times http://www.nytimes.com/gwire/2011/03/23/23greenwire-bushsrulemaking-czar-blasts-epas-use-of-guida-47538.html?pagewanted=all] As businesses and states challenge U.S. EPA's new regulations on greenhouse gas emissions, coal mining and water pollution, they are putting increasing pressure on the agency's use of "guidance" to explain the rules of the road. Agencies have used guidance documents for decades to explain how they will interpret existing laws, often while they are working on new regulations. But some of the Obama administration's memos have been maligned by businesses, which say that the guidance documents are being used to change the rules without taking public comment or
consulting with the rest of the administration.

They will be published online Fraser 2010 [Thomas J.,( J.D., Boston University School of Law, 2010; B.A., Boston College,
2007), Boston University Law Review, Vol 90:1303, INTERPRETIVE RULES: CAN THE AMOUNT OF DEFERENCE ACCORDED THEM OFFER INSIGHT INTO THE PROCEDURAL INQUIRY, http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/FRASER.pdf]
Although nonlegislative rules are, by definition, not binding on private parties, they can have the practical effect of binding.37 Only legislative rules may legally bind parties, and to the extent that nonlegislative rules do so, regulated entities and the public are deprived of an opportunity to participate in the rulemaking process through notice and comment. The

D.C. Circuit has criticized agency use of guidance documents in the form of interpretive rules and policy statements, recognizing the potential problem that [l]aw is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations.38 Especially with the advent of the Internet, agencies can issue such guidance documents containing these exempt rules on their websites to ensure widespread circulation.39 For instance, the SEC issues no-action letters40 in response to inquiries from regulated entities and posts these
documents on its website for public viewing.41 Courts have held that such no-action letters are in fact interpretive rules exempt from notice-and-comment procedures.42 While other more formal, yet still nonlegislative, SEC releases might appear in the Federal Register and the C.F.R.,43 no-action letters get no such treatment.

Aff: Solvency Deficit- Uncertainty


Temporary nature of guidance documents creates uncertainty for energy companies Walz 2012 [Ms. Barbara Senior Vice President for Policy and Environmental Tri-State
Generation and Transmission, Inc. Testimony for the Committee on Energy and Commerce Subcommittee on Oversight and Investigations Regulatory Reform Series #8 Private-Sector Views of the Regulatory Climate One Year After Executive Order 13563. 16 February http://democrats.energycommerce.house.gov/sites/default/files/image_uploads/Testimony_He aring_OI_Walz_02.16.12.pdf] Tri-State supports and is committed to good environmental stewardship, but has observed the U.S. Environmental Protection Agency (EPA) propose and finalize an unprecedented number of regulations and significant guidance documents that will greatly affect Tri-States ability to provide affordable electricity to our member systems.. As a not-for-profit cooperative, the cost to comply with these
rules and other requirements are rolled directly into our consumers rates. As a cooperative, Tri-State does not make any profit from the implementation of these rules. The costs we absorb from these regulations are ultimately passed onto our member systems consumers, who are the families and individuals at the end of the electric lines. Regulatory Uncertainty EPAs

regulatory actions are substantially undermining the ability of States to make effective decisions to adopt and implement environmental programs in a manner that addresses the needs and interests of individual states. Many of our states Clean Air, Clean Water and Solid and Hazardous Waste Programs are adopted from EPA and implemented by the individual states. EPAs actions of late have made it difficult for states, and the business and industry that operate in those states, to know that the programs adopted by the state will survive review by this EPA.

That uncertainty causes lack of investment Raso 2010 [Connor N. J.D., Yale Law School expected 2010; Ph.D., Stanford University
Department of Political Science expected 2010 Note: Strategic or Sincere? Analyzing Agency Use of Guidance Documents The Yale Law Journal January, 119 Yale L.J. 782] Guidance documents are more difficult to enforce because they are nonbinding. 113 Agencies obtain voluntary compliance much more easily in certain contexts. Some agencies, such as the FDA and FCC, hold gatekeeping power over private parties. This power gives regulated entities a strong incentive to cooperate with the agency. Such parties are therefore generally extremely receptive to guidance documents. For instance, a television station seeking FCC renewal of its license has its entire business at stake. 114 Therefore, the station's first inclination is to accommodate FCC requests, including those expressed in the form of guidance documents. Similarly, a company manufacturing medical devices has strong incentives to accommodate FDA requests. 115 [*804] On the other hand, a regulated party has a much greater incentive to resist complying with a guidance document issued by an agency threatening only a fine or an inspection. For instance, the EPA may issue a guidance document detailing requirements for

power plants to install new pollution abatement equipment. The power plant operator has little incentive to refrain from challenging the guidance document's legality, as even a failed court challenge forestalls an unfavorable change to the status quo.

Aff: Solvency Deficit-Delay


CP isnt enforced fast enough- new guidance takes a while to become accepted Gehan 2012 *Shaun M. Kelley Drye & Warren LLP May 15 EPA issues new guidance on
fracking with diesel fuels http://www.lexology.com/library/detail.aspx?g=d67a341e-7c294b8b-aa3f-a1d3495d039f] It will take years of operation under these draft guidelines (and we would not be surprised if they never go final) to see if the recommendations become de facto permit requirements. In the end, however, it will
likely make little difference. Businesses will either conform or eliminate the use of diesel in fracking fluids. If the conditions prove too onerous and unworkable or permits become too hard to obtain, avenues other than litigation will likely prove more fruitful.

The guidelines may never go final, but there is a chance that EPA will issue a revised draft based on public input.
Indeed, providing comments may be the best initial course.

Aff: Solvency Deficit- Rollback


All EPA guidance documents are suspect after National Mining Association v Jackson Raby, staff, 2011
(John, EPA Coal Mine Water Rules Struck Down By Federal Judge, Huff Post Green, http://www.huffingtonpost.com/2012/07/31/epa-coal-mine-water-rules_n_1725316.html)
CHARLESTON, W.Va. (AP) The Environmental Protection Agency overstepped

its powers by setting up waterquality criteria for coal mining operations in Appalachia, a federal judge ruled Tuesday. U.S. District Judge Reggie B. Walton in Washington ruled that the EPA infringed on the authority given to state regulators by
federal clean- water and surface-mining laws. A coal mining industry coalition sued the EPA and Administrator Lisa Jackson, and the lawsuit was joined by West Virginia and Kentucky. The ruling represents the latest setback to the Obama administration's attempts to crack down on mountaintop removal coal mining. Last year, the

EPA revised standards issued in April 2010 by tightening guidelines on the practice of dumping waste from surface mine blasting into Appalachian valley waterways. Critics say that practice destroys the environment. The mining industry defends it as an
efficient way to produce cheap power and employ thousands in well-paying jobs. The EPA had written that the fundamental premise of its new guidelines was that "no discharge of dredged or fill material may be permitted" under any of three conditions: if the nation's waters would be "significantly degraded"; if it causes or contributes to violations of a state's water quality standard; or "if a practicable alternative exists that is less damaging to the aquatic environment." The National Mining Association, one of the plaintiffs, denounced the guidelines as a "jobs destroyer" and hailed Walton's decision as a way to get miners back to work "by allowing the state permitting agencies to do their jobs." "This

is really the sort of ax that has fallen on EPA's entire guidance regime with respect to coal permits," said Luke Popovich, a spokesman for the association.
Last year, Walton sided with the National Mining Association in its challenge of a 2009 decision in which the EPA and the U.S. Army Corps of Engineers agreed to coordinate reviews of backlogged permit applications for waste disposal at Appalachia mountaintop mining operations that raised serious environmental concerns. And in March, another federal judge declared valid water pollution permits that the EPA had revoked for one of West Virginia's largest mountaintop removal coal mines. The U.S. Army Corps of Engineers had issued the permits for the 2,300-acre Spruce No. 1 mine in Logan County. A message left with the EPA wasn't immediately returned. Cindy Rank, chair of the West Virginia Highlands Conservancy's Mining Committee, said Tuesday's decision "continues to put us living in Appalachia in the unconscionable position of having to document our own communities' sickness, disease and other unexplained health impacts as reasons to finally stop the devastating practice of mountaintop removal coal mining." Even Walton recognized the dilemma, saying the court "is not unappreciative of the viable interests asserted by all parties to this litigation." "How to best strike a balance between, on the one hand, the need to preserve the verdant landscapes and natural resources of Appalachia and, on the other hand, the economic role that coal mining plays in the region is not, however, a question for the Court to decide," he wrote. U.S. Sen. Joe Manchin, who had filed a similar lawsuit against the EPA when he was West Virginia governor, called it "a great day for West Virginia." "I remain hopeful that this court decision will put us on the path of getting the permits that we need to provide energy and jobs not just for West Virginia, but for this entire country," the Democrat said. "Looking ahead, I will work to make sure the EPA understands that it needs to work as an ally, not an adversary." Kentucky Gov. Steve Beshear, a Democrat, called the ruling "a victory for coal miners who have seen mines close and their jobs put in jeopardy due, in part, to the actions of the federal EPA." Beshear said the regulations had essentially halted three dozen pending coal permits in Kentucky. West Virginia Environmental Protection Secretary Randy Huffman said that prior to EPA's most recent guidelines, West Virginia was issuing up to 400 mining permits per year. But that trickled to about 100 in 2011 and nearly 700 additional permits are in limbo. Huffman commended the judge "for doing the right and obvious thing." "We

knew when this first draft guidance document came out that it was wrong, that it was an illegally promulgated document," Huffman said. "We had no doubt we were going to win from the very beginning. We're not down
here high-fiving one another. We knew that there was no other decision to be made." Huffman said he fully expects EPA to continue reviewing permit applications and "that's not a problem."

Courts will roll back the CP empirically proven Jaffe, environmental compliance lawyer, 8-1-12
(Seth, A partner at Foley Hoag, Seth Jaffe is recognized by Chambers USA, The Best Lawyers in America and Massachusetts SuperLawyers as a leading practitioner in environmental compliance and related litigationhttp://www.lawandenvironment.com/articles/regulations/)
Yesterday, Judge Reggie Walton issued his final decision in National

Mining Association v. Jackson. The decision is another blow to EPAs efforts to regulate through guidance rather than notice and comment rule making. The decision is not a surprise to anyone who has been following the case. As I noted early last year, Judge Walton telegraphed his views
when he stated that even EPAs Interim Guidance qualified as final agency action because ... it is ... being applied in a binding manner. Nothing in the intervening 18 months caused Judge Walton to alter his views. EPA obviously understood the message from Judge Waltons prior decision and other cases, such as Appalachian Power, holding that guidance which functions as regulation will be treated as such by the court. EPA thus states repeatedly in the Final Guidance that it is not binding and does not impose any obligations on private parties. Judge Walton was havin g none of it. Review of the Final Guidance itself and of the post-implementation evidence before the Court makes clear that the Final Guidance has caused EPA field offices and the state permitting authorities to believe that permits should and will be denied if its suggestions and recommendations are not satisfied. Judge Walton found Appalachian Power essentially on all fours with this case, quoting extensively: [W]hatever [the] EPA may think of its Guidance generally, the elements of the Guidance petitioners challenge consist of the agencys settled position, a position it plans t o follow in reviewing Stateissued permits, a position it will insist State and local authorities comply with in setting the terms and conditions of permits issued to petitioners, a position EPA officials in the field are bound to apply. The entire decision is worth review. Although I am not a fan of guidance and agree with the decision here, I actually found it less persuasive than I expected. I assumed that the record would support a conclusion that EPA is treating the Final Guidance as binding, but the evidence Judge Walton cited was not fully compelling to me. If

EPA appeals, Id expect the decision to be affirmed, but I dont think its a certainty. I do think that the final Guidance is functionally a regulation. Moreover, there is little doubt that EPA and state regulatory agencies make far too much use of guidance and practically treat guidance documents as regulation. Whatever the record here, NMA v. Jackson stands as a useful check on agency overreaching in this area.

Trying to make rules through nonlegislative means ensures court rollback Johnson 2012 [Stephen M. Associate Dean and Professor, Walter F. George School of Law The
University of Kansas Law Review March, The University of Kansas Law Review 60 Kan. L. Rev. 495 In Defense of the Short Cut+ Nevertheless, regulated entities and regulatory beneficiaries frequently challenge nonlegislative rules before the agency applies them, arguing that the policy decisions are really legislative rules and thus invalid because they were adopted without notice-andcomment procedures. 5 In response, courts have fashioned a variety of unworkable [*496] tests to distinguish between legislative and nonlegislative rules, and they have frequently struck down nonlegislative rules by characterizing them as invalid legislative rules that the agency should have promulgated through notice-and-comment procedures. 6

Rules solve better- they actually have to be enforced Raso 2010 [Connor N. J.D., Yale Law School expected 2010; Ph.D., Stanford University
Department of Political Science expected 2010 Note: Strategic or Sincere? Analyzing Agency Use of Guidance Documents The Yale Law Journal January, 119 Yale L.J. 782+

Once successfully enacted, legislative rules are generally more durable than guidance documents. This is no small concern, as political appointees have an average tenure of eighteen to twenty-four months. 111 Agency leaders must worry that a successor will reverse a policy decision expressed as a guidance document because the cost of modification is so low. By contrast, legislative rules are more costly to modify and are therefore more durable. 112 Thus, agency leaders concerned over the durability of their policy decisions should favor legislative rules.