Environmental law practitioners are required to be familiar with a wide range of administrative actions by federal, state and local environmental agencies. These actions span what one court called a "sometimes murky spectrum" from formal agency adjudications and rulemaking, to purely informal advice and input provided by individual agency employees such as case managers overseeing a site undergoing remediation.
While formal rulemaking follows well-established procedures, companies or individuals faced with informal agency action can be put in an awkward situation unsure of whether, or even how to, challenge an agency position they feel is wrong. In this regard, the line between agency rulemaking and informal agency interpretations or guidance becomes an important one that can determine both the validity of an agency’s action and the availability of judicial review for parties affected by the action.
