In the past year, the Trump administration has curtailed public participation in agency rulemaking in broad and novel ways. The administration has used tactics that involve all three branches of government, and many of these efforts involve environmental regulatory issues. This paper evaluates some of those strategies, analyzing how the administration has diverged from historical practice as it seeks to achieve quick deregulatory results with limited process or expertise, data, and feedback from stakeholders.
Our analysis explains how the administration has restricted public participation by: (1) using statutory exceptions, (2) asking courts to intervene, and (3) collaborating with Congress; and identifies legal risks those tactics raise. It also evaluates some of those strategies, analyzing how the administration has diverged from historical practice as it seeks to achieve quick deregulatory results with limited process or expertise, data, and feedback from stakeholders.
These approaches share a common feature — many take immediate legal effect, achieving deregulatory outcomes before courts can review them. Even if courts ultimately find that the process is unlawful, the administration’s actions may have already caused on-the-ground effects, including, for example, extending compliance deadlines that benefit some regulated industries or undermining regulatory certainty that is necessary for projects to continue.