For your humble blogger,
Executive Order 562, recently issued by Governor Baker, is the
gift that keeps on giving. Receipt of a notice today
regarding MassDEP's consideration of its draft vapor intrusion
guidance document made me realize that EO 562 does not, at least on
its face, apply to the development of guidance documents.
Why does this matter?
Because the use of guidance in lieu of regulatory development is
already a significant problem. If agencies already are too
quick to use guidance when they should be going through
notice-and-comment rulemaking, precisely to avoid the burden of the
regulatory process, imagine the impact that EO 562 could have.
Of course, I understand that guidance documents don't have
the force of law. They do, however, have the force of the
issuing agency behind them. And we all know how street-level
bureaucracy in an agency can ossify what was supposed to be
flexible guidance, turning guidance into the worst of both worlds
– a
