The Real Danger of Trump's War on Low-Flow Showerheads

Yahoo

16-04-2025

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The First Amendment guarantees the public's right to petition the federal government to address wrongs. That fundamental constitutional right helped motivate Congress to secure a role for the public to participate in the federal rulemaking process by submitting written comments on proposed regulations. But now, the Trump administration is threatening to undermine the public comment process like no prior administration has in 80 years.
In the Administrative Procedure Act of 1946, Congress required agencies—with only narrow exceptions—to give notice to the public of proposed regulations and provide 'interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.' Since then, presidents of both parties have valued and promoted the public comment process. In 1981, President Ronald Reagan directed federal agencies to give 'full attention to public comments' to ensure that any 'factual conclusions upon which the rule is based have substantial support.' In 1993, President Bill Clinton's Executive Order 12,866—which remains in effect today—required agencies to afford a 'meaningful opportunity to comment' and specified that the period should usually last at least 60 days. And in 2011, President Barack Obama reaffirmed that 60-day comment periods were essential for the 'open exchange' of information and perspectives among experts, private stakeholders, and the general public.
Public comments do more than satisfy the public's right to be heard by their government. The comment process is meant to inform agencies' decisions. As a 2024 report by the White House office that oversees regulatory analyses explains: 'Scientists and researchers may have access to data not otherwise available to agencies. Industries and advocacy groups may have important insights into a particular problem. And individuals may be able to draw on their lived experiences to offer valuable perspectives.' In other words, public comments can lead to more accountable agency decisionmaking, producing more effective and responsive rules. But that works only if agencies are open to receiving new data and alternative views.
The Trump administration is increasingly making clear that it is not interested in hearing other viewpoints. The administration has repeatedly invoked questionable reasons to avoid public comments on regulatory proposals. In February, Secretary of State Marco Rubio declared that any agency's actions on immigration and border control 'constitute a foreign affairs function … under the Administrative Procedure Act'—the unstated implication being to shoehorn a broad set of regulatory polices into a narrow statutory exemption to bypass public comment. Last week, President Donald Trump signed an executive order declaring that whenever an agency determines that an existing rule is 'facially unlawful,' it can repeal that rule 'without notice and comment'—a gross distortion of an exception meant to be reserved either for true emergencies or for the most uncontroversial regulatory moves. The same day, another executive order read like a royal proclamation, with Trump commanding an agency to repeal a particular water-efficiency rule and decreeing that 'notice and comment is unnecessary because I am ordering the repeal.'
Even when the Trump administration has complied with the 80-year-old norm of providing public notice and comment, they have often afforded the bare minimum. In March, the Department of Health and Human Services proposed a major overhaul of Obamacare eligibility, restricting coverage for Deferred Action for Childhood Arrival program recipients, shortening the enrollment period, and complicating the verification process for low-income applicants. By its own calculations, this rule will cause hundreds of thousands of people to lose coverage and will result in net costs of hundreds of millions of dollars per year to state governments and consumers. The amount of time given to the public to comment on these massive changes: just 24 days. (By contrast, the prior 2023 proposed rule covering DACA recipients allowed 59 days of comment, more than twice the length.)
Similarly, a rule withdrawing all governmentwide guidance on preparing environmental impact statements under the National Environmental Policy Act allowed written comments for just 31 days, without any public hearings. In fact, that rule was issued as an 'interim final' action, meaning public comments were taken only after the withdrawal already went into effect. (By comparison, the most recent amendments to those rules, finalized in 2024, involved a 60-day comment period, four virtual public meetings, and two Tribal consultations.)
The administration's disinterest in hearing from the public seemingly applies only to those with new or different ideas. Federal agencies are all ears when it comes to narrowly defined input that aligns with preestablished White House priorities. Even as the Trump administration has sought to curtail public input on rules on health care, immigration, and environmental protections, agencies have announced multiple new channels for the public to share additional ideas for deregulation. Like-minded proponents of deregulation can share support for cutting existing rules through numerous new channels: a new digital form on the regulations.gov portal; an Office of Management and Budget call for ideas on 'any and all regulations' to rescind; a call for direct messages on X to DOGE; messages to individual agencies as they implement DOGE's 'deregulatory agenda'; or a forthcoming process aimed at removing so-called anti-competitive regulatory barriers. But this radical receptivity to public input is reserved only for comments that fully embrace the administration's deregulatory agenda. Divergent viewpoints need not apply.
There's a clear reason why the Trump administration is scared of receiving public comments that challenge its predetermined regulatory preferences. Courts require agencies to respond to significant points raised by public comments, to consider all important aspects of the regulatory issue, and to reasonably explain their ultimate choices. Like ostriches sticking their heads in the sand, officials in this administration seem to hope that by limiting comment opportunities, they can avoid responding to inconvenient facts and arguments. Minimizing or bypassing public comments allows agencies to speed up their deregulatory efforts and to claim they were not aware of defects with their proposals. Agencies are likely banking on some judges either not noticing or not caring.
That's not how our regulatory process is meant to work. Public comments are essential to producing effective and accountable agency actions. The Trump administration's misguided and likely illegal attempts to restrict public comment opportunities will be challenged in the courts. Meanwhile, it remains the right and the responsibility of any stakeholder, expert, or member of the public with relevant data or a different viewpoint to submit public comments when they can. If comment periods continue to shrink and the small squadron of traditional public participants in the regulatory process lack the time to submit robust comments on their own, one solution is to expand the roster of commenters. Academic researchers of all disciplines, interest groups big and small, and individuals with lived experience should all do what they can in the limited time provided by agencies to submit comments and help build out the public rulemaking records against which agency decisions will be weighed. In a government of the people, by the people, and for the people, the public cannot allow their vital role in the rulemaking process to be silenced.