When farmers plead for targets to stop moving, it doesn’t mean they’re bad hunters.
On the contrary. The fact that farmers keep hunting for a way to obey the law, produce high-quality food and protect the environment is encouraging, said John Kran, national lobbyist with Michigan Farm Bureau.
“If farmers were bound and determined to pollute air and water, abuse their animals and thumb their noses at the law for the sake of money, as some anti-farming groups claim, they wouldn’t concern themselves with regulations and interpretations,” he said. “The fact that they’ve been fighting for regulatory reform as a priority in both state and national Farm Bureau policy for years shows their level of frustration with moving regulatory targets. All they want is certainty that the laws they obey and the regulations they have made investments to comply with will be the same tomorrow as they are today and won’t be changed by someone other than elected officials who make the laws,” he said.
Farmers will continue to fight unreasonable regulations, of course. When a law inhibits their ability to do business, they can fight with grassroots lobbying and interaction with their legislators. The target they can’t seem to sight in is interpretation of laws that come through so-called “guidance” documents.
Regulatory reform is one of the top four Farm Bureau national priority issues for 2018, Kran said, and farmers may just be able to see the target a little more clearly after U.S. Attorney General (AG) Jeff Sessions changed the Department of Justice’s (DOJ) policy to stop his own department from using agency guidance documents against farmers as if they were binding rules.
At this point, the directive is more than just a suggestion. On Jan. 25, the Office of Management and Budget published the “Final Bulletin for Agency Good Guidance Practices” in the Federal Register.
“Guidance documents, used properly, can channel the discretion of agency employees, increase efficiency and enhance fairness,” the document reads.
Unfortunately, that’s not how things have been done to this point, said Laura Campbell, manager of Michigan Farm Bureau’s Agriculture Ecology department.
“This is the kind of thing our members have advocated for in a lot of regulatory programs,” she said. “There is a procedure to develop new rules for a reason, because it needs involvement of experts, comments by the public, and a level of review demonstrating that the agency implementing the rule understands and clearly communicates both the expectations and the potential consequences those rules may have.
“Guidance documents go through none of those procedures,” she said, “and while they can be helpful for agency staff thinking about how to apply existing rules to specific situations, in some cases those guidance documents go too far.”
A good example, she said, is at the root of the now-defunct Waters of the U.S. rule.
“Before the WOTUS rule was written, the EPA issued guidance after the Rapanos court case that established the notion of connectivity, and that interpretation – which is really what ‘guidance’ is – was unrelated to our interpretation.”
The Rapanos Guidance, put forth in 2008, “clarified” that “a wetland is adjacent (to traditional navigable waters) if it has an unbroken hydrologic connection to jurisdictional waters, or is separated from those waters by a berm or similar feature, or if it is in reasonably close proximity to a jurisdictional water.”
Such guidance, however, filled with openings for more interpretation, set up a bullseye of opposition from farmers, who disagreed with guidance that essentially made every ditch and puddle a jurisdictional water, and thus under the control of the Environmental Protection Agency (EPA).
“This is about far more than just one rogue field staffer trying to follow the letter of the law as he interprets it,” Campbell said. “We’re talking about written guidance that starts to twist the law into something a bureaucrat in a city someplace wants it to be.”
What bothers farmers the most about such guidance, she said, is that in many cases there’s not much connectivity to reality.
“When a guidance document sets up new compliance requirements or expectations for performance that were not contemplated in the rule, they become defacto rules themselves – rules that never went through the formal procedures required to make sure they do what is intended,” Campbell said. “It provides too much authority to agency staff who may not be able to see the full picture of what they’re trying to enforce.”
Perhaps ironically, doing away with such practices came through AG Sessions’ guidance policy.
“This is a guidance policy that says ‘don’t enforce guidance policy,” said Tyler Ernst, an attorney with Michigan Farm Bureau.
Hopefully, Kran said, the Sessions-crafted policy provides a little more transparency, but this is only a first step toward a target that inherently moves because of the nature of laws and regulations.
“I think the whole (guidance) process came out of necessity to begin with,” he said. “When Congress passes a law, an agency or department has authority to form a rule. Obviously the law can’t answer every question, so someone has to make a decision. But what starts as a way to fill in the gaps can become a way to further someone’s ideology.”
If a bureaucrat can interpret the gray areas, Ernst said, so can a farmer, or any member of the “regulated community.”
“If interpretations of the gray area are looked at differently, that’s where the member of the regulated community has the ability to sue the government and challenge its interpretation,” he said. “Then we leave it to the courts. If laws and statutes were always black-and-white, we wouldn’t have that many court cases. That’s why judges are filling in the gaps and interpreting the gray areas.”
The bullseye farmers can shoot for, Ernst said, comes from the courts in many cases. And even though it’s widely accepted that guidance does not have the force of law, that knowledge doesn’t always help a farmer who believes the law is on his side.
“Guidance does not have the force of law, but that’s not going to save me from anything in and of itself if an agency official tags me with a citation under the Wetlands Protection Act because dirt fell off a tree root and is viewed as filling a wetland,” he said. “I can say ‘that’s not the law,’ and the agency can say ‘if you don’t like it, sue us.’”
That’s not always the best way to find the target, though.
“If every potential scenario were in law, it would be so cumbersome that it would be nearly incomprehensible,” Ernst said. “So guidance is unavoidable. Where guidance becomes problematic is when the third branch of government (the courts) give as much weight to guidance and interpretation as the written law itself. With technical laws, courts have traditionally shown deference to the agency action because the agency has the expertise. But (AG) Sessions is saying here that the Department of Justice is no longer supposed to enforce guidance as law. So when the DOJ represents the government in court, it will no longer argue its case on the basis of guidance, but on written law.”
DOES THIS HELP?
What does all this mean for the farmer caught within interpretations that can be disputed?
“The cynical view is that it won’t do anything,” Ernst said. “The street-level bureaucrat will continue to do what he’s done, and he, in many cases, is the one who has the ability to cause the most pain for a member of the regulated community. Those people will always interpret the world and the law through their own personal lens, regardless if they have written guidance or not.”
That personal agenda is not what’s being addressed in the DOJ guidance in the federal register, though. But when it curtails some of that personal opinion, it’s a step in the right direction.
Most importantly, Campbell said, is that absolutes are being softened. The Sessions guidance “clarifies that, given their legally nonbinding nature, significant guidance documents should not include mandatory language such as ‘shall, must, required or requirement.’”
There are still many steps to take until transparency leads to a well-defined target, though. The Federal Register document notes that “agencies can appropriately bind their employees to abide by agency policy as a matter of their supervisory powers…”
What will end all the confusion? It won’t necessarily be satisfactory to all farmers, because giving them a target to hit won’t always be a good solution.
“We have to be careful in saying ‘just give me certainty,’” Ernst said. “I can give you certainty that’s unworkable. What we need is certainty that works. We can get laws off the books so there is less for an agency to interpret. A lot of this comes back to Congress. If the regulated community feels a certain load is too burdensome, there is only so much a certain administration can do. But there is a lot Congress can do if we cry loud enough.”
While Ernst, Campbell and Kran agree that the new attitude from the AG is a good first step, there are a lot of steps between the target and the one trying to hit it.
“I like the gesture,” Ernst said. “I prefer this to him saying the DOJ will go to the wall with guidance, but I wouldn’t want this to become a distraction from the more important factors to getting relief from regulatory burdens.”
“The tangible benefit is that we now have a Department of Justice that is a little more open to reason, and not seeking to enforce interpretations to the nth degree,” he said. “But this won’t solve all our problems. We need to stay engaged for a long-term solution. Congress is not thinking about two or three administrations from now. It’s thinking about votes for the next election.”
That’s a target that moves every two years.