On May 12, the Federal Register put on public inspection a group of 42 proposed and final rules from the Department of Energy. The rules cover a wide variety of topics, ranging from energy efficiency standards to biofuel production to the conditions attached to grants from the Department. Many of these rules are notable for the extreme brevity of their analysis. Taken together, these proposed and final rules offer one of our first windows into the way the new Trump administration intends to expedite the rulemaking process.
The Federal Register generally must put documents it intends to publish on public display a few days before publication. On May 12, the virtual public inspection window was mostly taken up with proposed and final rules from the Department of Energy. DoE offered for display 29 proposed rules and 13 direct final rules. (The Register also displayed a fourteenth DoE direct final rule that the agency subsequently withdrew.)
The Administrative Procedure Act requires that notices of proposed rulemaking include “either the terms or substance of the proposed rule or a description of the subjects and issues involved.”[1] Courts have interpreted section 553 to require agencies to provide sufficient detail about their proposed rules for the public to comment intelligently on them. Similarly, final rules issued under the Administrative Procedure Act must contain “a concise general statement of their basis and purpose.”[2] Case law requires that statements of basis and purpose contain sufficient detail for courts to conduct “hard look” review under 5 U.S.C. 706’s arbitrariness standard, assessing whether agencies have adequate reasons for the regulations they adopt.
Moreover, notices of proposed and final rulemaking subject to review by the Office of Information and Regulatory Affairs under Executive Order 12866 must include the “text of the … regulatory action, together with a reasonably detailed description of the need for the regulatory action and an explanation of how the regulatory action will meet that need,” as well as an “assessment of the potential costs and benefits of the regulatory action.”[3] Regulations that may have large economic effects are subject to more demanding analytical requirements.[4] To provide information necessary for the public to comment intelligently and to satisfy the requirements of E.O. 12866, notices of proposed or final rulemakings often run dozens or hundreds of slip copy pages when on public display at the Federal Register.
It is notable, then, that many of the DoE proposals include only a very brief discussion of the changes they propose. For instance, in a notice of proposed rulemaking entitled “Rescinding Reporting Requirements, Certification, Independent Verification, and DOE Review for Voluntary Greenhouse Gas Reporting,” DoE states simply that it is proposing to rescind several provisions in its voluntary greenhouse gas emission reporting program.[5] It does not offer reasons for the proposed rescissions or predict their costs or benefits, though it does “seek[] comment on all aspects of th[e] proposal.”[6] Similarly, a proposal entitled “Rescinding the Production Incentives for Cellulosic Biofuels” explains only that the regulatory provisions it proposes to rescind are “outdated.”[7]
The same brevity characterizes many of the direct final rules. For instance, DoE’s explanation in a direct final rule rescinding certain construction requirements is only four sentences long,[8] and the explanation in a direct final rule rescinding regulations governing the acquisition of petroleum by the Strategic Petroleum Reserve is found in a single sentence.[9]
These DoE proposed and final rules provide an important window onto rulemaking in the second Trump administration. The administration has made clear its intent to move its deregulatory agenda forward very swiftly, but until now it has been unclear—except in the case of regulations that exceed agency authority after the demise of Chevron and under other recent changes in administrative law[10]— how agencies intended to accelerate the often-lengthy rulemaking process, especially in a time of staffing cuts. DoE’s approach shortens the rulemaking process by drastically reducing the justifications offered for proposed and final rules (and thus the staff time necessary to prepare such rules for publication). This approach, if implemented across the federal ecosystem, could allow agencies to move forward with their regulatory agendas far more swiftly than in previous administrations. That speed comes at a cost, though: an enhanced risk of adverse decisions by courts, which may find this bare-bones analysis to fall short of the Administrative Procedure Act’s demands. The proposed and direct final rules could present opportunities for interested parties to engage in the rulemaking process or to assess the potential for litigation challenges to the agency actions under the Administrative Procedure Act and other statutes. We encourage parties interested in considering these aspects of the recent notices to contact the members of Covington’s public policy practice.
[1] 5 U.S.C. 553(b)(3).
[2] 5 U.S.C. 553(c).
[3] 58 Fed. Reg. 51735 (1993).
[4] Id.
[5] Available at https://public-inspection.federalregister.gov/2025-08585.pdf.
[6] Id.
[7] Available at https://public-inspection.federalregister.gov/2025-08572.pdf.
[8] Available at https://public-inspection.federalregister.gov/2025-08535.pdf.
[9] Available at https://public-inspection.federalregister.gov/2025-08536.pdf.
[10] See Presidential Memorandum, Directing the Repeal of Unlawful Regulations, available at https://www.whitehouse.gov/presidential-actions/2025/04/directing-the-repeal-of-unlawful-regulations/.