Rushing Repeal: Why the ‘Good Cause’ Shortcut Could Backfire on Agencies and the Environment
Maya Granderson
From his first term in office, President Donald Trump has made it his mission to rid American industries of “the never-ending growth of red tape.”[1] His quest began with Executive Order 13771, which stated that “for every one new regulation issued, at least two prior regulations [must] be identified for elimination.”[2] This objective of the Trump administration has ramped up in his second term. These rapid changes to the administrative state have left industries uncertain about which “red tape” will remain and which will no longer need consideration. In President Trump’s first 100 days of his second term as Commander in Chief, he has undertaken this mission with unprecedented speed and breadth of executive authority.[3] On January 31, 2025, President Trump signed Executive Order 14192 to “significantly reduce the private expenditures required to comply with Federal regulations.”[4] Through this Executive Order, Trump mandated that for each new regulation issued, 10 prior regulations must be eliminated in their place within that agency. Less than a month later, Trump signed Executive Order 14215, requiring all independent agencies to submit proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs for review.[5] This Order significantly increased the control and Presidential supervision of agency decisionmaking.[6] Finally, on April 9, 2025, President Trump released the Memorandum for the Heads of Executive Departments and Agencies Directing the Repeal of Unlawful Regulations (Memorandum), which encourages agencies to use the “good cause” exception outlined in the Administrative Procedure Act (APA) to repeal regulations without public notice that are not aligned with recent Supreme Court decisions, including Loper Bright Enterprises v. Raimondo.[7] The combination of these Orders has left industries uncertain about their compliance requirements and causes conflicts with rulemaking compliant with the APA.
One issue that arises from the Memorandum is that it potentially allows regulations to be repealed without public input. When an agency repeals a rule, under the APA, it is considered rulemaking and requires agencies to undertake notice-and-comment procedures.[8] The APA allows agencies to skip this requirement only for “good cause,” which is defined as a time when notice and public procedures are “impracticable, unnecessary, or contrary to the public interest.”[9]Previously, courts have construed this exception narrowly, limiting its use to matters concerning emergency health or safety standards.[10] The Memorandum for the Heads of Executive Departments and Agencies Directing the Repeal of Unlawful Regulations turns this exception on its head.
The administration’s focus on expeditiously repealing regulations especially threatens environmental regulations that were previously upheld by agency expertise. The Trump administration directs departments and agencies to review rules and repeal those that do not comply with recent Supreme Court decisions. One of these decisions is Loper Bright Enterprises v. Raimondo, which overturned Chevron. To ensure that regulations comply with this decision, agencies are to repeal any regulation that was promulgated in reliance on the Chevron doctrine and that could only be defended by reliance on Chevron deference.[11] Most environmental regulations enforced by the United States Environmental Protection Agency (EPA) require the agency to apply its expert knowledge to make regulatory decisions that best protect human health and the environment. Chevron deference has been the key to letting decisions like these withstand judicial scrutiny and has allowed agencies like the EPA to be more ambitious in setting policies.[12] Chevron deference has played an instrumental role in environmental protection and has been cited in over 18,000 federal court decisions.[13]
Applying the APA exception as broadly as the administration suggests may expose Agency repeals to immense and costly “arbitrary and capricious” challenges if the Agency fails to respond to or consider comments and unjustifiably changes policy. In recent years, the Supreme Court has issued numerous landmark decisions striking down agency policies under this standard and strengthening the force of arbitrariness review.[14] Under these circumstances, a situation may arise in which an agency repeals a regulation under the good cause exception, but then challengers successfully reinstate the rule and the agency refuses to enforce it. Now, industries will be left questioning whether they should invest the extra time and energy to comply with the rule or to ignore it as the agency does and risk opening themselves up to liability. Especially for environmental regulations, this may result in the removal of environmental and health considerations by industries in rules usually enforced by the EPA. By repealing numerous regulations in favor of a single new rule, agencies like the EPA may also struggle to draft regulations specific and comprehensive enough to capture the many nuances and scientific technicalities that come with regulating complex areas like the environment. Another issue with the administration’s approach to repealing regulations under the good cause exception is that it contradicts the very decisions mentioned in the Memorandum for the Heads of Executive Departments and Agencies Directing the Repeal of Unlawful Regulations. Under Loper Bright, the Supreme Court held that courts are the proper authority to decide which regulations are lawful and which are not.[15] Repealing regulations without public or judicial input will return deference to agencies to determine which regulations should continue to be enforced.
Some benefits of rolling back agency regulations include streamlining infrastructure projects and increasing job opportunities. If projects have fewer restrictions placed on them and fewer hoops to jump through between each phase of construction, it may mean that projects can be completed more efficiently in terms of time and cost. More projects may also mean more job opportunities since companies can take on more work to distribute among employees. Excessive regulation can also stifle innovation and competitiveness within industries, especially in rapidly evolving sectors. Where companies are heavily regulated, it may leave little room for them to be creative in how they achieve their objectives. If industries continue to adhere to the status quo, there will be no breakthroughs or advances, and the businesses that start at the top stay there. Larger companies with extensive resources and an established customer base can also better shoulder the compliance costs associated with more regulations. The Trump administration cites increasing compliance costs and misallocating resources as two obstacles to economic growth and as barriers to entry for new companies that have to comply with costly regulations before they begin incurring profits.[16] Instead of allocating resources and capital to regulatory compliance, companies can invest in research and development to develop more innovative products and lower consumer costs.
It has been suggested that the Memorandum for the Heads of Executive Departments and Agencies Directing the Repeal of Unlawful Regulations may be against the law and may likely
be challenged in court under an arbitrary and capricious review.[17] This remains yet to be seen, but some agencies have begun the repeal process in accordance with the memorandum. The EPA announced it is proposing to repeal all greenhouse gas emission standards for light-duty, medium-duty, and heavy-duty vehicles and engines to effectuate the best reading of Clean Air Act §202(a).[18] Additionally, the EPA is proposing to amend the Greenhouse Gas Reporting Program (GHGRP) to remove program obligations for most source categories.[19] If EPA is successful in repealing these rules, it will give industries more flexibility in choosing manufacturing processes with less consideration for environmental and health impacts. On the one hand, it may help companies become more efficient since they face less restrictions but on the other hand those economic benefits may be outweighed by the environmental and impacts these new developments cause.
[1] Donald Trump, Remarks by President Trump on Deregulation, THE WHITE HOUSE, December 14, 2017, https://trumpwhitehouse. archives.gov/briefings-statements/remarks-president-trump-deregulation.
[2] Exec. Order No. 13,771, 82 Fed. Reg. 9339 (Jan. 30, 2017).
[3] Richard J. Pierce, Jr., On Direct Exercises of Presidential Power, The Regulatory Review (May 5, 2025), https://www.theregreview. org/2025/05/05/pierce-on-direct-exercises-of-presidential-lkdnfdpower.
[4] Exec. Order No. 14,192, 90 Fed. Reg. 9065 (Jan. 31, 2025).
[5] Exec. Order No. 14,215, 90 Fed. Reg. 10447 (Feb 18, 2025).
[6] Id.
[7] Memorandum for the Heads of Executive Departments and Agencies Directing the Repeal of Unlawful Regulations (Apr. 9, 2025) https://www.whitehouse.gov/presidential-actions/2025/04/directing-the-repeal-of-unlawful-regulations/.
[8] 5 U.S.C. § 553.
[9] Id.
[10] See e.g., Am. Fedn. of Govt. Emp., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981); see e.g., State of N. J., Dept. of Envtl. Protec. v. U.S. Envtl. Protec. Agency, 626 F.2d 1038, 1046 (D.C. Cir. 1980); see e.g., Util. Solid Waste Activities Group v. E.P.A., 236 F.3d 749, 754 (D.C. Cir. 2001).
[11] Fact Sheet, THE WHITE HOUSE, President Donald J. Trump Directs Repeal of Regulations That Are Unlawful Under 10 Recent Supreme Court Decisions (Apr. 9, 2025). https://www.whitehouse.gov /fact-sheets/2025/04/fact-sheet-president-donald-j-trump-directs-repeal-of-regulations-that-are-unlawful-under-10-recent-supreme-court-decisions/; see e.g., Natl. Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (providing an example of deference being given based on the Chevron framework); see e.g., Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735 (1996) (providing an example of deference being given based on the Chevron framework).
[12] Dr. Freya Doughty-Wagner, Chevron Overruled: A Devastating Blow to the Environmental Protection Agency, The Global Network for Human Rights and the Environment (Jul. 4, 2024) https://gnhre.org/?p=18086
[13] Sidley Austin LLP, U.S. Supreme Court Overrules Chevron, Reshaping the Future of Regulatory Litigation, Sidley Austin LLP (Jun. 28, 2024) https://www.sidley.com/en/insights/news updates/2024/06/us-supreme-court-overrules-chevron-reshaping-the-future-of-regulatory-litigation#:~:text=Over%20time% 2C%20Chevron%20had%20been,approaches%20to%20countless%20other%20decisions.
[14] Governing For Impact, Arbitrary-and-Capricious Challenges (May 2025). https://governingforimpact.org/wp-content/uploads/2025/05/ Arbitrary-and-Capricious-Challenges.pdf; see e.g., Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
[15] Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 369 (2024).
[16] Fact Sheet, THE WHITE HOUSE, The Economic Benefits of Current Deregulatory Efforts, (Jun. 19, 2025). https://www. whitehouse.gov/research/2025/06/the-economic-benefits-of-current-deregulatory-efforts.
[17] Economic Policy Institute, Presidential Memorandum on Directing the Repeal of Unlawful Regulations, Economic Policy Institute (Apr. 10, 2025) https://www.epi.org/policywatch/presidential-memorandum-on-directing-the-repeal-of-unlawful-regulations/.
[18] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36288 (Aug. 1, 2025).
[19] Reconsideration of the Greenhouse Gas Reporting Program, 90 Fed. Reg. 44591 (Sep. 16, 2025).