In a series of separate Executive Orders, administrative memoranda, and Federal Register notices, the Trump Administration has substantially curtailed the role of public comment in federal governmental decisions. Public notice and comment have improved government decisions—not treating government agencies as smarter than the public. Exclusion of public comment from both environmental reviews and rulemaking will undermine this important value.
Governmental Actions and Project Decisions
In January, the Administration directed the Council on Environmental Quality (CEQ) to rescind CEQ rules implementing the National Environmental Policy Act (NEPA). In an early February Federal Register notice, the CEQ revoked those rules via an “interim final rule” effective six weeks later, on April 11, 2025. While the notice solicited public comment, it stated that such comments would have no effect on the President’s decision. In just 30 days CEQ received more than 88,000 public comments on the docket, but the interim final rule became effective as scheduled and CEQ has not published any summary, analysis, or review of the substance of any comments it received.
While the revocation procedure itself reveals little regard for the usefulness of public comments, the absence of a CEQ rule will have even more profound effects on federal decisionmaking. For nearly 50 years, the revoked regulations (in successive iterations) have defined detailed requirements for: public notice of proposed federal actions; public scoping procedures; preparation of draft and final environmental impact statements (EISs) with defined opportunities for public comment; public comment on environmental assessments (EAs) at the option of federal agencies; the duty of agencies to respond in final EISs to the substance of any comments received; and preparation of records of decision after a defined period of time following a final EIS. The rules also described types of public notice, communications, and opportunities for public engagement.
With the elimination of all of these regulatory provisions, public notice and comment on proposals for major federal actions may be limited in the future to whatever individual agencies have adopted in their “NEPA procedures,” plus whatever provisions are in their specific permitting statutes and regulations. For example, the Forest Service NEPA Procedures don’t prescribe a public comment period independent of the now-revoked CEQ regulations.
In sum, there is no longer a government-wide requirement that an agency prepare a draft EIS for public review, nor that an agency accept, consider, and respond to public comments. (Scoping procedures will remain for EISs, however, as Congress added public “scoping” to the text of NEPA §107(c) in 2023).
We have already seen some implications of this general approach to public involvement in NEPA. In March, the Bureau of Land Management offered only a 5-day comment period (over a weekend) on the EA for a proposed large-scale lithium exploration operation on federal lands in Oregon. In early May, the Department of the Interior released its “alternative arrangements” for NEPA implementation when approving leases and plans of operations for energy projects, invoking President Trump’s declaration of a national energy “emergency.” Those procedures prescribe completion of EAs within 14 days, with no opportunity for public comment. They prescribe that EISs for energy projects that are major federal actions with significant impacts must be completed within 28 days, with no draft EIS for public review and no opportunity for public comment except for a 10-day period offered concurrently with the 28-day document preparation period (apparently to comply with NEPA §107.) On May 12, the Interior Department announced it would apply the 14-day EA process (without public comment) to the proposed reopening of a long-closed uranium and vanadium mine in Utah. The elimination of public comment may be overturned as arbitrary and capricious by courts reviewing federal agencies’ NEPA compliance. Requirements for draft EISs and public comments were based on courts’ statutory interpretations (as well CEQ guidelines) in the years before the CEQ regulations were adopted in 1978. Moreover, Congress’ 2023 amendments to NEPA §107(g) in the Fiscal Responsibility Act clearly contemplate agency interdisciplinary EIS processes extending up to two years, and EAs up to a year, legislatively reinforcing the idea that public engagement would continue. Cutting the public out of these opportunities and reading §107(c) so narrowly as to give the public little to comment upon would be inconsistent with the basic design of the statute.
Regulatory Decisions
Public participation in federal rulemaking is prescribed by the 1946 Administrative Procedure Act (APA). The APA requires agencies to provide public notice of proposed rules and opportunity for public comment, except for rules that are devoted to military or foreign affairs, agency management, or personnel matters; rules that are entirely interpretive or general statements of policy; or when the agency “for good cause” finds and publishes a determination that notice and comment are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. §553.
However, the Trump Administration has recently launched a diverse set of efforts to exclude public comment from its regulatory initiatives. These include actions to: eliminate rules that are asserted to contravene recent U.S. Supreme Court doctrines; sunset existing rules across multiple agencies; and implement presidential declarations.
1. Conformance to Judicial Doctrines
The Administration has directed agencies within the next few months to repeal numerous existing regulations without providing for public notice and comment. Executive Order 14219 (Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative), issued February 19, 2025, directed the heads of all executive departments and agencies to identify within 60 days, regulations that are inconsistent with various legal doctrines and their policy implications.
A subsequent Executive Memorandum (Directing the Repeal of Unlawful Regulations) issued April 9, directs agencies to repeal all of their regulations that are or may be inconsistent with the doctrines announced in 10 named Supreme Court decisions limiting agency authority or enforcing private rights, including Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), and West Virginia v. EPA, 597 U.S. 697 (2022). It further provides that in implementing these repeals, “agency heads shall finalize rules without notice and comment, where doing so is consistent with the ‘good cause’ exception in the Administrative Procedure Act." The memorandum states that “retaining and enforcing” these “unlawful regulations is clearly contrary to the public interest. Furthermore, notice-and-comment proceedings are ‘unnecessary’ where repeal is required as a matter of law to ensure consistency” with Supreme Court rulings.
2. Regulatory Sunsets
On the same day, April 9, the President issued Executive Order 14270 (Zero-Based Regulatory Budgeting to Unleash American Energy), directing 10 enumerated agencies to initiate processes that will sunset many or all of their existing federal regulations. These include many Interior Department agencies, the Army Corps of Engineers, EPA, the Department of Energy, and the Federal Energy Regulatory Commission, among others. The Order requires each agency to issue a “sunset rule” effective no later than September 30, 2025, that establishes a conditional sunset date for all covered rules.
The sunset date must be one year after the effective date of the sunset rule—viz. September 30, 2026, at the latest. As of the sunset date, covered rules will terminate and may not be enforced. The Executive Order states that during the one-year period before final sunset, agencies must “offer the public an opportunity to comment on the costs and benefits of each regulation, such as through a request for information, prior to a rule’s expiration.” Following this opportunity, an agency may extend the “conditional sunset date” if the agency “finds an extension is warranted.” Other than offering the limited comment “opportunity” during the sunset period, the Order contains no procedural standards or obligations for the agency.
Although the issuance of each “sunset rule” this summer will require public notice and comment under the APA, this is likely to be carried out in bulk agency-wide rulemakings listing affected regulations. Thus, the mass sunset (repeal) of regulations will depend on the effect of public comments filed this summer, and of course ensuing litigation over the rules slated for sunset. Such litigation may well be met with ripeness and standing claims by the government, based on the largely limited and illusory comment opportunity available during the conditional sunset year.
In sum, much of the edifice of government regulation is hanging on a very thin public input period between now and September 30 of this year. (Note that the APA normally requires a 30-day period from publication of a final rule until its effective date, making the actual comment window between now and the end of August, though even this can be waived for good cause). We should expect at most a 30-day comment period on the agency sunset rules this summer.
3. Declarations
Finally, the Administration has in some instances simply asserted that public notice and comment is not to be afforded. In another April 9 Executive Order 14264 (Maintaining Acceptable Water Pressure in Showerheads), the President directed the Secretary of Energy to repeal the water efficiency standard applicable to multiple fixture showerheads. The Order states: “Notice and comment is unnecessary because I am ordering the repeal.”
Conclusion
Notice and the opportunity for effective public comment have been salient advantages of the American system of laws since the 1940s, and especially important with respect to federal actions with environmental impacts since the 1970s. Both the added transparency and the resulting improvement of the quality of decisionmaking are the pride of the American legal system. The recent moves by the Trump Administration in 2025 to limit or foreclose these opportunities create substantial risks of harm to the nation, both substantively and reputationally.