A January 2021 rule promulgated by the Trump administration that established procedures for the White House Council on Environmental Quality’s (CEQ) guidance document procedures was rescinded by the CEQ effective April 13, 2021. The rescinded rule had originally been issued by the CEQ in furtherance of Trump’s October 2019 executive order “Promoting the Rule of Law Through Improved Agency Guidance Documents.” The Trump rule was meant to put a halt to agency guidance documents from serving as “a backdoor for regulators to effectively change the laws and vastly expand their scope and reach.” The old rule expressly stated that CEQ guidance documents “lack the force and effect of law, unless expressly authorized by statute or incorporated into a contract.” The Trump rule also required that any guidance documents must be posted on the CEQ’s website and that guidance documents must be made available to the public in an indexed, searchable online database. The rule also included a procedure by which the public could request that a guidance document be withdrawn or modified.

The Biden Administration rescinded the Trump rule after the CEQ decided the policy somehow prevents CEQ “necessary flexibility” in determining when and how best to issue guidance based on particular facts and circumstances consistent with the policy directive set forth in President Biden’s January 20, 2021, E.O. 13992, “Revocation of Certain Executive Orders Concerning Federal Regulation.” In addition to providing that, in order for agencies to be able to effectively tackle the current challenges facing the country, agencies “must be equipped with the flexibility to use robust regulatory action to address national priorities,” E.O. 13992 expressly directed federal agencies to rescind orders, rules, regulations, guidance, and policies based on certain executive orders issued during the Trump administration.

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