President Trump this week directed 10 federal agencies — including the Environmental Protection Agency, the Energy Department and the Nuclear Regulatory Commission — to implement a novel procedure to scrap a wide array of longstanding energy and environmental regulations.
He told agencies that oversee everything from gas pipelines to power plants to insert “sunset” provisions that would cause regulations to automatically expire by October 2026. If the agencies wanted to keep a rule, it could only be extended for a maximum of five years at a time.
Experts say the directive faces enormous legal hurdles. But it was one of three executive orders from Mr. Trump on Wednesday in which he declared that he was pursuing new shortcuts to weaken or eliminate regulations.
In another order, he directed a rollback of federal rules that limit the water flow in shower heads with a highly unusual legal justification: Because I say so.
“Notice and comment is unnecessary because I am ordering the repeal,” Mr. Trump’s order said.
Legal experts called that sentence astonishing and contrary to decades of federal law. The 1946 Administrative Procedure Act requires federal agencies to go through a lengthy “notice and comment” process when they issue, revise or repeal major rules, giving the public a chance to weigh in. Agencies that do not follow those procedures often find their actions blocked by the courts.
“On its face, all of this is totally illegal,” said Jody Freeman, the director of the Harvard Law School Environmental and Energy Law Program and a former White House official under President Barack Obama. “Either the real lawyers have left the building or they just don’t care and want to take a flier on all these cases and see if the courts will bite.”
The regulatory process is often criticized as onerous and time-consuming and the idea of letting all government regulations expire periodically has been promoted in conservative circles for years. It’s known as zero-based regulatory budgeting, a twist on zero-based financial budgeting, a system in which a budget is built from scratch every year instead of carrying over historical spending amounts.
The idea may have gotten a recent boost from Elon Musk, the billionaire adviser to Mr. Trump. “Regulations, basically, should be default gone,” Mr. Musk said on a public call in February on his social media site, X. “Not default there, default gone. And if it turns out that we missed the mark on a regulation, we can always add it back in.”
“We’ve just got to do a wholesale spring cleaning of regulation and get the government off the backs of everyday Americans so people can get things done,” Mr. Musk added.
It is unclear how many regulations the sunset order would affect. Legal experts pointed out that the executive order says it “shall not apply to regulatory permitting regimes authorized by statute,” which describes most major regulations that are authorized by laws like the Clean Air Act, the Clean Water Act and the Endangered Species Act.
“That’s a huge loophole that could make the rest of the order completely ineffectual,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “Most environmental laws would seem to fall under that category.”
Taylor Rogers, a White House spokeswoman, said in a statement, “The president is right to ensure that Americans are not beholden to state overreach stifling American energy and competitiveness that are unconstitutional or contradict federal law.”
In another order, titled “Directing the Repeal of Unlawful Regulations,” Mr. Trump gave his cabinet secretaries 60 days to identify federal rules they considered unlawful and to make plans to repeal them. The order stated that agency heads could bypass the notice-and-comment process by making use of an exception that experts say is normally reserved for emergencies.
Yet legal experts said that the laws written by Congress that govern how federal agencies can get rid of regulations are quite strict.
Normally, when a federal agency like the E.P.A. issues or changes a regulation, it first publishes a proposed rule and gives the public time to comment. Then agency officials read and respond to the comments, providing detailed evidence to support the changes they want to make and showing that they addressed public concerns. Then, the agency publishes the final rule.
“The Administrative Procedure Act is a boring-sounding law that no one cares about, but we treat it in the legal profession as foundational,” Ms. Freeman said. “It tells the federal government that it is required to do things deliberately, to take public input and to defend its actions as rational. It’s a promise that government can’t be arbitrary.”
There are certain conditions where an agency might be able to bypass certain steps. If, say, it needs to issue emergency regulations on airplane safety.
But the Trump administration appears to be pushing to use this so-called good cause exception to rescind a much wider array of federal rules.
In the past, courts have had little patience when federal agencies try to sidestep the regulatory process. During Mr. Trump’s first term, officials sometimes announced they had erased a regulation only to be reversed by the courts because they had skipped important steps. The administration lost 76 percent of cases in which its environmental policies were challenged, a much higher loss rate than previous administrations, according to a database kept by New York University’s Institute for Policy Integrity.
This time around, Trump administration officials may be hoping that the courts are more sympathetic. With three Supreme Court justices appointed by Mr. Trump, the court now has a conservative supermajority that has shown a deep skepticism toward environmental regulation.
In some cases, the administration’s actions could be legally defensible. For instance, in moving to repeal the limits on water flow in showers, Mr. Trump called for redefining “shower head.” In that case, the White House could try to argue that it is repealing something called an interpretive rule, rather than a major regulation, and doesn’t need to go through the same legal procedures. But, experts said, agencies couldn’t argue they are allowed to skip those steps just because Mr. Trump said so.
“It’s possible that notice and comment is unnecessary,” said Jonathan Adler, a conservative legal scholar at Case Western Reserve University. “Not because Trump is ordering a repeal, but because if the only thing that’s being repealed is a definition, there is a question of whether it’s an interpretive rule.”
Some say that Mr. Trump’s plan to allow regulations to expire every five years could make it difficult for businesses to plan for the future.
The Federal Energy Regulatory Commission, for instance, has rules on everything from transmission lines to utility accounting, said Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. In theory, the new order would require them to expire periodically.
“The very first section of that order talks about how businesses need certainty,” said Lisa Heinzerling, a law professor at Georgetown University. “But the whole order is a recipe for perpetual uncertainty.”
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