US President Donald Trump issued a presidential memorandum April 9 directing federal agencies to begin rescinding rules and regulations that conflict with a series of recent energy-related Supreme Court rulings.
Notably, the order instructs agency heads to sidestep the notice-and-comment rulemaking process when doing so is consistent with the Administrative Procedure Act's "good cause" exception.
The Supreme Court rulings at issue include a landmark 2022 decision in West Virginia v. EPA, a power plant-related Clean Air Act ruling that established what is known as the "major questions" doctrine as the law of the land. The conservative line of legal thinking holds that federal agencies must point to clear congressional authorization when regulating on matters of "vast political or economic significance."
The April 9 memo also lists the Supreme Court's 2024 ruling in Loper Bright Enterprises v. Raimondo, where a 6-3 conservative majority overturned a 40-year-old bedrock administrative law doctrine known as Chevron deference. In arguing against the move, former Solicitor General Elizabeth Prelogar warned that overturning Chevron could implicate "thousands" of existing agency rules and regulations.
Additional identified rulings include a 2024 decision to stay a Biden-era interstate smog plan for power plants and natural gas pipelines, a 2024 ruling that could impact tariff and rate decisions at the Federal Energy Regulatory Commission, and a 2023 ruling that nixed Clean Water Act permitting requirements for millions of acres of wetlands.
'Narrowly construed'
Under the Administrative Procedure Act, agencies are authorized to bypass notice-and-comment rulemaking procedures when that process would be "impracticable, unnecessary, or contrary to the public interest."
"Retaining and enforcing facially unlawful regulations is clearly contrary to the public interest," the April 9 memo said. "Furthermore, 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."
Max Sarinsky, regulatory policy director at the Institute for Policy Integrity, disagreed with that assessment.
"The 'good cause' exception is narrowly construed," Sarinsky said in an interview. "Courts have emphasized that it should be used rarely, and the exception is typically used in emergency situations or when immediate implementation of a rule is necessary to address some sort of immediate threat to public safety or health."
Under the April 9 memo, agencies are directed to submit a "one-page summary" to the White House Office of Information and Regulatory Affairs by May 20 for each regulation seen as conflicting with an identified Supreme Court ruling.
Andres Restrepo, a senior attorney with the Sierra Club, said legal challenges should be expected as soon as agencies begin to finalize repeal rules that claim the "good cause" exception.
"Simply because the administration has taken a different legal view on some of these regulations does not mean that that justifies doing an end-run around notice-and-comment procedures," Restrepo said in an interview. "You'll see those challenges start to rise when the unlawful rescissions happen."
