Despite the government shutdown, EPA officials continue their progress on the deregulatory agenda. EPA regulatory staff continue to work on the Trump administration’s policy priorities, while many of the nonregulatory staff have been furloughed. For example, the government shutdown appears to have little effect on many climate change deregulatory initiatives, including the goal of finalizing the reversal of the greenhouse gas (GHG) endangerment finding and associated GHG vehicle rules.

In an effort to speed up and streamline deregulatory actions, The White House Office of Information and Regulatory Affairs (OIRA) issued an Oct. 21 memorandum that offers guidance to federal agencies to repeal “facially unlawful” regulations without notice and comment rulemaking. The memorandum cites the “good cause” exemption of the Administrative Procedure Act (APA) as legal authority for such deregulatory actions. 

Pursuant to the APA, proposed regulatory (and deregulatory) actions must be subject to public notice and comment (thus allowing input from interested stakeholders on the potential impact of the regulation) before the regulation can be finalized. This can include burdens on small businesses and state and local government, duplicative regulatory requirements, actions inconsistent with existing policy, unnecessary or excessive costs, or lack of legal authority.

The APA’s “good cause’ exemption allows agencies to bypass traditional notice and comment rulemaking when an agency for any good cause finds that notice and comment rulemaking would be “impractical, unnecessary, or contrary to the public interest.”  The OIRA memorandum suggests that the “good cause” exemption would apply to most deregulatory actions because delaying the easing of regulatory burdens would be contrary to the public interest.

In instances where EPA cannot use the “good cause” exemption, it is likely to implement strategies to speed up its response to public comments. For example, EPA may try to abbreviate the process by relying primarily on legal arguments for repealing the GHG endangerment finding and related GHG vehicle rules.

In addition, to help streamline the deregulatory process, OIRA recommends shortening the OIRA 90-day review process for regulatory actions to 28 days for deregulatory actions that are executed with good factual records and to 14 days for “facially unlawful” rules. The stated justification for the streamlined review process is that the more extensive regulatory review process is needed before new regulatory burdens are imposed, but the same process would not apply to deregulatory actions. The guidance in the memorandum is designed to help accelerate the deregulatory actions that are currently underway.

Environmental advocacy groups have expressed strong opposition to the memorandum, claiming that it based on a flawed interpretation of the APA. They have promised to challenge this novel administrative procedural process in court at the first opportunity. Keep in mind that pursuant to the U.S. Supreme Court’s decision in Loper Bright, courts no longer have to give deference to agencies’ interpretation of statutory language such as that in the APA. This will allow federal courts to provide their own opinion if the application of the “good cause” exemption is appropriate for each deregulatory action.

Regardless of these recent and other future developments with the streamlining of the deregulatory process, the Trump administration will continue its aggressive deregulatory agenda. The deregulatory road may be bumpy and subject to numerous legal challenges, but the AFS environmental committees will continue to work with regulators on the potential impacts to the metalcasting industry and provide updates to AFS members.