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15 states appeal to Congress to limit reach, impact of federal 'guidance'

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15 states appeal to Congress to limit reach, impact of federal 'guidance'

Attorneysgeneral from 15 states issued an appeal for congressional action to limit thereach of federal agencies that create and enforce regulations, alleging thatthey often circumvent the law, fail to consider related costs and override thelegal systems of the state.

In aletter submitted to Senate and House leaders of both parties, the 15 stateofficials asked that the U.S. Congress step in and pass laws that would limitagencies from their current approach to legal guidance and regulatoryoversight.

"Weurge Congress not simply to consider legislation but to take action,"wrote West Virginia Attorney General Patrick Morrisey. "We have fought,and will continue to fight, this problem on a case-by-case basis in the courts.But the time for broader action by Congress is long overdue."

Theofficials took specific issue with the practice of legal "guidance"on the part of federal agencies, arguing that this allows them to shape policieswithout adhering to the Administrative Procedures Act, which would requirepublic notice and comment.

Whileguidance is traditionally intended to be non-binding, the officials argue thatin practice, they are often enforced with "lawsuits, fines, and sanctionsfor noncompliance."

"Federalagencies have been avoiding this process with so-called guidance documents,which are meant to offer non-binding advice, but are increasingly being used tocreate new binding regulations and sanctions for those who don't comply,"Morrisey's office said in a statement.

Insupport of their appeal, state officials cited a ruling by the U.S. Court ofAppeals for the D.C. Circuit that held that a 2010 guidance issued by the U.S.EPA regarding the National Ambient Air Quality Standards for ozone requiredpublic notice and comment despite being prepared as non-binding.

Inaddition to the application of non-binding guidance, the officials challengedwhat they saw as federal overreach on state laws and a failure to consider "relevantfactors, notably the costs imposed on regulated entities, when deciding onregulatory alternatives."

Theofficials closed the letter with a direct appeal for congressional action.

"Thethree categories we have discussed here are just examples of the significantand growing problem posed by unlawful federal regulations," they wrote. "Wehave fought, and will continue to fight, this problem on a case-by-case basisin the courts. But the time for broader action by Congress is long overdue."

Anexample of federal guidance that might be impacted by congressional action isthe White House Council on Environmental Quality's revision of draft guidancein December 2014 onhow agencies should weigh climate change and greenhouse gas emissions when theyconsider possible environmental impacts, alternative options and viablemitigation steps for projects proposed on federal lands. In fact, the guidancehas already been targeted by congressional action. In September 2015, Rep. Paul Gosar, R-Ariz.proposed an amendment bill intended to streamline infrastructure permittingthat would have prohibited the use of the CEQ's guidance when considering newprojects.

Inaddition to West Virginia, attorneys general from Alabama, Arizona, Arkansas,Georgia, Kansas, Michigan, Montana, Nevada, North Dakota, Ohio, South Carolina,Texas, Utah and Wisconsin signed on to the letter.