Statements of Policy or Disguised Rulemakings: Bedford v. Commonwealth DEP Revisited
Agencies of the Commonwealth of Pennsylvania regularly publish regulations and policy statements in the Pennsylvania Bulletin. The Departments of Human Services, Health and Environmental Protection are among the agencies that are the most prolific document publishers. Administrative law practitioners have long been aware that some agencies choose to issue policy statements, the process for promulgation of which has little oversight, and thereby avoid the more rigorous process of promulgating regulations. The problem arises when the policy statements as drafted or as applied go beyond providing guidance and create mandatory obligations – something which only regulations can do. The article, Statements of Policy or Disguised Rulemakings: Bedford v. Commonwealth DEP Revisited, analyzes this problem and proposes solutions. Has a state agency issued a document identified as a policy statement that is in fact regulatory in nature, intended to be mandatory but issued without regulatory review? Or is the document instead only a nonbinding policy statement? Clients faced with this issue can use the article as a legal framework for understanding the import of documents issued by Pennsylvania state government in contexts relevant to their businesses.