President’s Memo Orders Immediate Abrogation of Regulations without Public Notice or Comment
In keeping with the Trump administration’s deregulatory agenda the White House released a Presidential Memorandum titled Directing Appeal of Unlawful Regulations on April 9. The directive builds on Executive Order 14219 and the broader “Department of Government Efficiency” initiative, and calls for a sweeping review and repeal process. The directive builds on Executive Order 14219 and the broader “Department of Government Efficiency” initiative and calls for a sweeping review and repeal process.
Most notably, the memorandum encourages agencies to invoke the “good cause” exception under the Administrative Procedure Act (APA) to bypass notice-and-comment rulemaking, stating that public participation is “unnecessary” or “contrary to the public interest” where repeal is compelled by the cited Supreme Court precedent.
Ten Supreme Court Decisions at the Core
The memorandum and accompanying fact sheet identify 10 recent Supreme Court decisions that have effectuated material shifts in administrative or constitutional law as the basis for repealing existing regulations. The fact sheet directs agencies in accordance with the cases to repeal or revise regulations. (Click here to view, or below to expand). This process is the cornerstone of administrative laws, promoting transparency and giving the public a chance to shape federal regulations. The notice-and-comment process begins with the publication in the Federal Register of a proposed regulation, followed by an opportunity for individuals, groups, and other stakeholders to submit comments. The agency reviews the comments and makes any necessary changes before publishing the final rule. SS 553(b)(3)(B). Federal courts have held for many years that this exception should be “narrowly construed” and “only reluctantly acknowledged”. Mack Trucks, Inc. v. EPA, 682-F.3d 87, 93-94 (D.C. Cir. 2012). In practice, courts have applied the exception in few circumstances:
“Impracticable”
Emergencies:
National security threats or public health crises requiring immediate action.
- Deadlines:
- Where notice and comment would prevent compliance with a statutory or judicial deadline.“Unnecessary”
- Technical Corrections: Non-substantive changes unlikely to draw public concern.
- No Discretion:
- Where the agency is executing a clear statutory mandate with no policymaking judgment.“Contrary to the Public Interest”
- Harm from Delay: Where time lost to comment periods would cause significant public harm.
- Preventing Circumvention:
- Avoiding preemptive regulatory evasion.Market Disruption:
- Preventing economic manipulation or instability resulting from advance notice.The April 9 memorandum contends that the good-cause standard is categorically met for regulations deemed “facially unlawful” under the cited Supreme Court cases, making public comment both unnecessary and contrary to the public interest.
- Implications and Legal RisksIt remains to be seen how executive agencies, including the EPA, plan to implement the executive memorandum. It appears to open the door to sweeping agency actions that aim at deregulation. This is especially true given the inclusion of the Loper Bright case as a core Supreme Court case. In a majority of APA rulemaking cases, the issue of deference is raised. This could allow EPA to reverse a number of controversial recent regulations. These include, among others, recent hazardous substance designations, and maximum contaminant limits established for PFAS. The approach has already been challenged by advocacy groups. Critics argue that the administration may be overreaching–particularly by attempting to apply decisions like Loper Bright retroactively, citing the Supreme Court’s express statement that its holding is prospective.
Litigation may not proceed uniformly, given the lack of consensus among federal courts on how to evaluate good-cause claims:
The D.C. and Second Circuits apply de novo review, independently determining whether the statutory criteria are satisfied.
The Fifth, Eighth, and Eleventh Circuits apply arbitrary and capricious review, deferring to agency reasoning if it appears reasonable and supported by the record.
The First, Third, Fourth, Sixth, Seventh, Ninth and Tenth Circuits have not adopted a clear or consistent standard, often applying mixed or fact-specific approaches.
This divergence increases the risk of inconsistent outcomes across jurisdictions. The Judicial Panel on Multidistrict Litigation could consolidate challenges to the same repeal of regulations filed in multiple circuits. This could result in the matter being assigned to the D.C. Circuit, where de novo review would apply.
- Conclusion
- Agencies are being directed to swiftly repeal a broad portfolio of regulations the Trump administration deems inconsistent with recent Supreme Court rulings without following the APA’s notice-and-comment process on the basis that “good cause” obviates it. It remains to be determined whether and to what extent this approach will stand up to judicial scrutiny. The results could be mixed, given the patchwork of “good reason” jurisprudence. Pillsbury attorneys are continuing to closely monitor this development and will provide updates as it unfolds.
