Trump's showering of deregulation may just go down the drain

Rulemaking under the Administrative Procedure Act (APA) prescribes the procedural rules that federal agencies must follow to ensure the public's access to the information about a proposed rule and the opportunity to participate in the rulemaking process (5 U.S.C. §§ 551-559). The process has frequently been criticized because of its slow pace for adopting, modifying, and rescinding regulations.

President Donald Trump is administratively "fast-tracking" the rescission of federal regulations across the entire federal government. Advocacy groups, such as those committed to climate change, air and water pollution control, and energy conservation, are likely to object.

On April 9, Trump issued a presidential action entitled "Directing the Repeal of Unlawful Regulations." It directs the heads of all executive departments and agencies to "identify certain categories of unlawful and potentially unlawful (emphasis added) regulations within 60 days and begin plans to repeal them."    

The Executive Order (EO) states that the agencies shall prioritize existing regulations for "lawfulness" by considering ten recent Supreme Court decisions, including Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). In Loper Bright, the Court held that the APA requires courts to exercise their independent judgment in deciding whether an agency has acted within its authority. In doing so, the Court sharply cut back the power of federal agencies to interpret the laws they administer. Loper Bright may surprisingly turn out to aid opponents who object to Trump's fast-tracking. Courts will have the final say in deciding "lawfulness," not the federal agency.  

Rulemaking under the APA requires an agency to: 1) Give notice of the proposed rulemaking, 2) Afford interested parties the opportunity to participate through the submission of written comments, and 3) After reviewing the comments, to publish the final rule with a statement of the basis and purpose for the rule. Importantly, an agency's action rescinding (as well as sunsetting, or delaying the effective date of a prior rule) is itself a rule subject to these requirements.  

 But the APA contains a "good cause" exception to the notice-and-comment process: "When the agency for good cause finds (and incorporates the finding and the brief statement of the reasons therefore, in the rules issued) that notice and public procedure thereon are impractical, unnecessary, or contrary to the public interest (5 U.S.C. § 553(b)(B))." The legislative history clarifies that "impractical" was intended to focus on expediency, "unnecessary" pertained to minor technical changes, and "public interest" addressed situations where the process would be detrimental to the agency fulfilling its statutory duties.

The EO requires that an agency "shall be accompanied by a brief statement of the reasons that the 'good cause' exception applied." It also provides that an agency will "have ample cause and the legal authority to immediately repeal unlawful regulations" because retaining and enforcing facially unlawful regulations is contrary to the public interest. Few would disagree with the tautological proposition that unlawful regulations are contrary to the public interest. But that is the equivalent of putting the "cart before the horse."

In many cases when an agency has attempted to skirt the procedural rules by claiming "good cause," the courts have held that the exception should be narrowly applied. In Sorenson v. FCC (Sorenson I), for example, the D.C. Circuit struck down the FCC's misuse of internet protocol (755 F.3d 702 (D.C. Cir. 2014)). The court held that the invocation of the "good cause" exception to forgo the rulemaking process is reviewable de nova and that the FCC violated the APA by improperly claiming impracticability. The court reasoned that the possibility that a fiscal calamity could conceivably justify passing the notice-and-comment requirement, but the case did not provide evidence of such an exigency.

The scope of judicial review for agency action rescinding regulations is governed by Section 706 (5 U.S.C. § 706). It provides two sections important to any forthcoming legal challenge. A reviewing court "shall hold unlawful and set aside agency action, findings, and conclusions found to be - without observance of procedure required by law (5 U.S.C. § 706 (2)(D)) or arbitrary and capricious (5 U.S.C. § 706 (2)(A)). Thus, the standards for judicial review provide another potential obstacle to fast-track rescission.

On April 9, Trump sprang into action on the low-flow problem. He issued a "Fact Sheet: President Donald J. Trump Makes America's Showers Great Again" and an accompanying EO titled "Maintaining Acceptable Water Pressure in Showerheads." He directed the Secretary of Energy to rescind the "overly complicated federal rule that redefined 'showerhead' under Obama and Biden." Trump directed the former federal water conservation rule (86 Fed. Reg. 71797 (December 20, 2021)) be rescinded - "You have many places where they have water, they have so much water they don't know what to do with it." 

The direction to the Secretary of Energy to rescind the shower head regulation based on presidential direction alone is arguably a violation of the APA. The APA has never been thought to permit agencies to forgo notice-and-comment rulemaking because a President has ordered it to do so. It also requires that the agency give a reasoned explanation and not a preordained result.

Trump has long complained about low-flow showerhead regulations that make it difficult for him to coif his "beautiful hair." His complaint is hilariously reminiscent of the 1996 "Seinfeld" TV spoof titled "The Shower Head," where Jerry, Kramer, and Newman can't wash the shampoo out of their hair because of the low-flow showerheads in their apartment. Kramer ultimately picks a high-pressure showerhead used for elephants, with unfortunate results.

The appointment of individuals with limited technical experience to head the various federal agencies and the widespread chaotic firing of agency employees by DOGE does not inspire confidence that the "fast-tracking" deregulation across the entire federal government will be in the public interest. To borrow an apt phrase from William Shakespeare's play The Tempest - "Whereof what's past is prologue."