How EPA May Accelerate Its Deregulatory Agenda

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 doctrine); Michigan v. EPA (EPA must consider costs in regulating mercury and toxic air emissions from power plants); Sackett v. EPA (narrowing scope of Clean Water Act); and Ohio v. EPA (granting stay of EPA’s Federal Implementation Plan for certain states).

The order directed agencies to “effectuate the repeal of any regulation, or the portion of any regulation, that clearly exceeds the agency’s statutory authority or is otherwise unlawful.” For example, in its proposed repeal of power plant GHG standards, EPA asked for comment on how Loper Bright and West Virginia should inform its interpretation of Section 111 of the Clean Air Act.

The executive order further instructed that, “[i]n effectuating repeals of facially unlawful regulations, agency heads shall finalize rules without notice and comment, where doing so is consistent with the ‘good cause’ exception in the Administrative Procedure Act.” The order reasoned that the statutory elements of “good cause” would be satisfied because “[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest” and “notice-and-comment proceedings are ‘unnecessary’ where repeal is required as a matter of law to ensure consistency with a ruling of the United States Supreme Court.”

EPA has, of course, relied on the good cause exception to remove regulations from the Code of Federal Regulations that a reviewing court has vacated.⁵ But revoking an existing regulation, without notice and comment, based on the agency’s conclusion that it contradicts existing caselaw would constitute a significant expansion of this mechanism. Moreover, critics of this approach will likely argue that expanding agency authority to expedite deregulatory decisions is in tension with some of the same Supreme Court caselaw cited in the executive order. Indeed, the Court’s stay of Federal Implementation Plans under the Clean Air Act in Ohio v. EPA was predicated on EPA’s failure to address concerns raised by commenters during rulemaking.⁶

Sunsetting Regulations

On the same day that President Trump issued the order directing reconsideration of “illegal” regulations, he directed an array of agencies responsible for environmental and energy policy — including EPA — to install a “Conditional Sunset Date” in innumerable regulations under their respective statutes. Those sunset clauses would cause the rules to become ineffective one year after the effective date of the sunset rule. On the sunset date, the agency must treat the relevant regulation “as ceasing to be effective … for all purposes” and refrain from taking “any action to enforce such an ineffective regulation and, to the maximum extent permitted by law, … remove it from the Code of Federal Regulations.”

The implication of the president’s order is that the relevant rule will be effectively revoked without notice and comment. Instead, a covered agency like EPA “will offer the public an opportunity to comment on the costs and benefits of each regulation … prior to a rule’s expiration” and may extend the expiration date if “warranted.”

Enforcement Discretion

President Trump’s day-one Unleashing American Energy executive order directed all agencies to “assess whether enforcement discretion of authorities and regulations can be utilized” to advance the president’s energy policy. Similarly, the president’s Ensuring Lawful Governance executive order from February instructed agencies to “preserve their limited enforcement resources by generally de-prioritizing actions to enforce regulations that are based on anything other than the best reading of a statute and de-prioritizing actions to enforce regulations that go beyond the powers vested in the Federal Government by the Constitution.”

The Supreme Court has long held that APA review does not deprive agencies of their enforcement discretion unless Congress has said otherwise.⁷ And exercising such discretion is a normal tool of resource management for agencies.⁸ However, EPA has already made clear that it will be using its discretion to effectuate several of the new administration’s policy goals by ensuring “that enforcement does not discriminate based on race and socioeconomic status” or “shut down energy production and that it focuses on the most pressing health and safety issues.” The administration may seek to use enforcement discretion to impose de facto deregulation, as well. And challengers may contest that certain deregulatory policies can be protected from judicial review as discretionary enforcement decisions.⁹

Emergency Authorities

President Trump’s Unleashing American Energy executive order also directed agencies to use emergency authorities to expedite adjudication of federal permits. The use of emergency authorities could further other aspects of the president’s energy policy. For example, the Clean Air Act grants EPA the authority to issue temporary waivers of fuel controls or prohibitions in “extreme and unusual fuel or fuel additive supply circumstances” or where “it is in the public interest.”¹⁰ Both the Biden and Trump administrations have relied on this emergency authority to lift restrictions on the sale of higher-ethanol gasoline blends during the summer. EPA most recently issued such a waiver last month. EPA might seek to use this and other emergency authorities to quickly change regulations.

Congressional Review Act

The Congressional Review Act (CRA) allows Congress to reverse recently issued rules and prevent agencies from issuing a substantially similar rule in the future.¹¹ The CRA provides a “lookback” window to allow a new Congress to review rules promulgated at the end of the last legislative session.¹² That period for Congress to act on regulations finalized at the end of the Biden administration is closing, but EPA has found one way to extend the window and potentially reach further back in time. Specifically, EPA submitted for CRA review a preemption waiver issued for California’s Advanced Clean Truck’s rule — which was originally issued in April 2023. EPA’s reasoning is that the waiver was not originally submitted for review based on the agency’s prior, erroneous conclusion that it did not constitute a “rule” subject to the CRA. Now that a majority of the Senate has agreed that such waivers are subject to CRA clawback — overruling the Senate parliamentarian and the Government Accountability Office — and voted through the disapproval of three California waivers, EPA might attempt to submit other historical actions to Congress for review, as well. California has filed a lawsuit challenging the disapprovals. It remains to be seen whether courts will weigh in on this process given the CRA’s bar on judicial review.¹³

Social Cost of Carbon

President Trump and EPA have also identified the social cost of carbon as a target for reconsideration. The social cost of carbon — as a measure in dollars of the damage done by carbon emissions and the value of emission reductions — plays a pivotal role in various environmental regulations. The president’s Unleashing American Energy executive order described a list of critiques aimed at the measure, and EPA announced in March that it would be revisited. Additionally, a May 5, 2025, memorandum issued by the Office of Information and Regulatory Affairs stated that “it is no longer Federal government policy to maintain a uniform estimate of the monetized impacts of greenhouse gas emissions.” The elimination of the social cost of carbon from regulatory analyses would tend to shift regulatory analyses in favor of the president’s deregulatory agenda. But some courts have previously faulted agencies for failing to properly weigh climate harms in their decision-making,¹⁴ so abandoning tools for quantifying those impacts is not without risk.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.