The U.S. Environmental Protection Agency (EPA) has announced an ambitious deregulatory agenda targeting most of the prior administration's major environmental initiatives and regulations. The targets range from emissions standards for power plants; greenhouse gas (GHG) reporting requirements for large emitters and fuel suppliers; GHG emissions standards for motor vehicles; and the "Good Neighbor Plan" targeting interstate air pollution. EPA has already announced its proposed repeal of GHG and air toxics standards for power plants.1 The agency has also stated its intention to reconsider the 2009 Endangerment Finding, which laid the foundation for the agency's regulation of GHG emissions under the Clean Air Act.
It remains to be seen whether EPA will reach all of the regulations it has targeted and whether the agency will revise and narrow them or rescind them entirely. Going through the notice-and-comment process for a major rulemaking ' even one aimed at removing regulatory burdens ' can take EPA years to complete. Meanwhile, the administration has announced significant cuts to EPA's staffs, which could further delay the process of assembling a record, weighing public comments, and ultimately moving from proposal to final rule.
As a result, it is unsurprising that the Trump administration has begun to preview methods by which it could attempt to accelerate its deregulatory efforts. Each of these approaches could allow EPA to avoid the lengthy notice-and-comment process. However, the legality of each as applied to major environmental regulations will undoubtedly be challenged in and decided by the courts.
Good Cause Exception
The Administrative Procedure Act (APA) provides that notice and comment is not required "when the agency for good cause finds" that notice and comment are "impracticable, unnecessary, or contrary to the public interest."2 Agencies under the Trump administration have already relied on the good cause exception as a means to immediately implement directives contained in the president's executive orders.
In one notable example, the president ordered the Secretary of Energy to rescind the regulatory definition of "showerhead" without undertaking notice and comment, contending that it was "unnecessary because I am ordering the repeal." The U.S. Department of Energy followed suit, reasoning in a short final rule that its duty was "nondiscretionary" in light of the executive order.3 Agencies have similarly cited the good cause exception to immediately implement delays in accordance with the president's Regulatory Freeze Pending Review order.
Courts have interpreted the good cause exception narrowly.4 They have also held that ' although executive orders are not themselves reviewable under the APA ' agency actions implementing an executive order are reviewable. So, a decision to forgo notice and comment solely based on presidential directive will be subject to challenge.
A presidential memorandum from April, Directing the Repeal of Unlawful Regulations, previewed another rationale that EPA and other agencies might employ when invoking the good cause exception. That memorandum directed agencies to prioritize evaluating existing regulations' "lawfulness" under 10 Supreme Court decisions, including: Loper Bright v. Raimondo (overruling Chevron deference); West Virginia v. EPA (major questions...
