‘Official Action of the Agency Concerned’?

Why didn’t the final GHG guidance just signed by Christy Goldfuss appear in the Federal Register? The answer may be more interesting than you think.

The Council on Environmental Quality (CEQ) is becoming curioser and curioser, legally, as the Obama Administration has progressed.  Not so much a “council” any longer as an “office” (in the loosest sense), CEQ is currently run by an appointee who arguably has no authority to take any official actions at all.  And that makes the final GHG guidance into more story than meets the eye.

A Council that Isn’t a Council?

CEQ stopped being a proper council and became an office led by a “chair” (not a “director” or “administrator,” etc.) decades ago.  And as we reported last year, the Obama Administration and Senator James Inhofe are now locked in a battle of wills over the Senate’s power to bottle up CEQ entirely by not confirming a nominee to chair it.  Thus, Goldfuss isn’t just an “acting” head: she’s a legal curiosity.  If she were appointed acting chair, the Vacancies in Office Act might apply and limit her service, severely complicating the Administration’s use of CEQ’s statutory authority.

Nevertheless, Goldfuss gave an interview to Chris Mooney of the Washington Post touting the force and effect of the GHG guidance—the piece was published August 3—in which she was referred to as CEQ’s “managing director” and CEQ was referred to as the White House’s “chief environmental office.”

But instead of publishing the full document in the Federal Register, CEQ published a notice of its “availability” to the public on the White House’s website.  That appeared in the Federal Register on August 5.  But why would they do that?  Toner and space in the Federal Register are cheap—essentially free to CEQ.  The upside to publication is not insignificant.  So, as this post explains, nonpublication raises some interesting questions.

What is the Federal Register and Why Wasn’t the Guidance Published There?

Being the federal government’s publication of record, the Federal Register doesn’t permit publication of a document unless it is official.  See 1 C.F.R. § 5.4(a) (“The Director of the Federal Register may not accept any document for filing and publication unless it is the official action of the agency concerned.”).  Is the GHG guidance official in this sense?

The question arises because, as anyone familiar with CEQ guidance knows, the Federal Register is home—it’s where CEQ has put almost all of its guidance for 40+ years and for good reason.  Publication in the Federal Register answers the charge that “secret” law is out there binding people without them knowing it.  Publication in the Federal Register charges everyone with knowledge of its existence.

Admittedly, concerns of the kind have receded in our internet age.  And, a long time ago when CEQ communicated with agency heads for very different purposes, some of its guidance didn’t see the light of day.  Ever since 2007 when OMB established its own “good guidance” practices, though, CEQ has been the model citizen.  It publishes a notice of a proposal, takes comments and publishes the final version—in the Federal Register.

Legal formalities are what they are and agencies like CEQ avail themselves of such formalities precisely because courts pay attention to them.  {See our study on CEQ’s deft use of the Federal Register “notices” section over the decades here.}

Finally, here’s the thing about publication in the Federal Register: there are four categories of actions that appear.  And the GHG guidance surely fits into at least one of them:

(a) The President. This category contains each Executive order or Presidential proclamation and each other Presidential document that the President submits for publication or orders to be published.

(b) Rules and regulations. This category contains each document having general applicability and legal effect, except those covered by paragraph (a) of this section. This category includes documents subject to codification, general policy statements concerning regulations, interpretations of agency regulations, statements of organization and function, and documents that affect other documents previously published in the rules and regulations section.

(c) Proposed rules. This category contains each notice of proposed rulemaking submitted pursuant to [the APA], or any other law, which if promulgated as a rule, would have general applicability and legal effect. This category includes documents that suggest changes to regulations in the Code of Federal Regulations, begin a rulemaking proceeding, and affect or relate to other documents previously published in the proposed rules section.

(d) Notices. This category contains miscellaneous documents applicable to the public and not covered by paragraphs (a), (b), and (c) of this section. This category includes announcements of meetings and other information of public interest.

1 C.F.R. § 5.9.

Assuming the guidance doesn’t have “legal effect” within the meaning of subsection (b), subsection (d) is the appropriate catch-all: “miscellaneous documents applicable to the public.”  Unless the Administration is going to argue its guidance doesn’t concern the public, if it’s taking the time to publish a “notice of availability,” it should’ve published the whole guidance in the “notices” section on August 5.

In closing, it seems more than a bit odd for Washington’s paper of record to have headlined CEQ’s memo under the title From Now On, Every Government Agency Will Have to Consider Climate Change, when what really happened is a far more subtle, far less certain step by the waning Obama Administration CEQ.

**UPDATE: Earlier this week, the Congressional Research Service published a “legal sidebar” taking note of CEQ’s guidance, of some uncertainties surrounding its legal effect given the Vacancies in Office Act issues raised here, and declining to speculate further about potential judicial responses to the issues.

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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  • David
    31 August 2016 at 23:15 -

    I think it is very important to understand that NEPA’s Title II, Section 202, sets out what the CEQ shall be. First, it is intended to be a three-member council, not just a chairman/woman, which is all we have seen. Secondly, “Each member shall be a person who, as a result of his training, experience, and attainments, is exceptionally well qualified to analyze and interpret environmental trends and information of all kinds; to appraise programs and activities of the Federal Government in the light of the policy set forth in title I of this Act; to be conscious of and responsive to the scientific, economic, social, aesthetic, and cultural needs and interests of the Nation; and to formulate and recommend national policies to promote the improvement of the quality of the environment.” In order for CEQ to be truly effective as the keeper of NEPA, it needs more staff, more funding, and to live up to the mandates of Section 202.