The Trump administration has sold its deregulatory agenda as a two-for-one deal: With every new regulation adopted, a pair of existing rules must be tossed to offset the costs for businesses.
That directive, spelled out in an executive order last week, represents a centerpiece of President Donald Trump’s pledge to cut federal regulations by 75 percent—or “maybe more,” he has said—to drive business growth.
Not so fast. A suit filed Wednesday in Washington federal district court alleges the order will do more harm than good, requiring the rollback of rules that have a net benefit for society in spite of their compliance costs.
The lawsuit takes aim at Trump and his departments of labor, transportation and energy, along with lower-profile agencies tasked with overseeing mine safety and the country’s network of highways.
Filed by the Public Citizen Litigation Group, the National Resources Defense Council and the Communications Workers of America, the complaint argues Trump’s executive order unlawfully forces agencies to make decisions based on an “impermissible and arbitrary choice—whether to issue a new standard at the cost of the loss of benefits of two existing standards.”
The complaint cites a host of pending rules that could be affected by the order, including the Environmental Protection Agency’s proposal to limit exposure to harmful chemicals in paint removers to the National Marine Fisheries Service’s efforts to stave off the extinction of Atlantic sturgeon. Read the complaint here.
Highlights From the Complaint:
►The executive order exceeds President Trump’s constitutional authority, violates his duty under the take care clause of the Constitution, and directs federal agencies to engage in unlawful actions that will harm countless Americans, including plaintiffs’ members.
►The governing regulatory statutes enacted by Congress do not authorize federal agencies to consider the costs of other regulations issued in the same fiscal year or of regulations issued in prior years when determining whether to promulgate new or repeal existing regulations. Those statutes do not authorize federal agencies to condition issuance of new regulations on repealing existing regulations to offset the costs of the new ones.
►The agencies’ governing statutes do not authorize agencies to repeal an existing regulation, weaken a new regulation, or forgo or delay a new regulation that it would otherwise issue, for the purpose of offsetting costs of new regulations.
►The executive order will block or force the repeal of regulations needed to protect health, safety, and the environment, across a broad range of topics—from automobile safety, to occupational health, to air pollution, to endangered species.
►Agencies that comply with the executive order in their decisions regarding whether to propose, issue, or repeal regulations are acting in violation of their governing statutes.
Why This Case Matters:
Trump’s executive orders have brought a flurry of lawsuits—most of them focused on the administration’s immigration action. The suit filed Wednesday marked the broadest challenge yet to Trump’s plan to attack the so-called regulatory state. His executive action—like any president’s—is only meaningful to the extent the courts don’t interfere and stop White House programs. The outcome of cases that confront executive orders could affect companies in many industries.
Judges do push back. Former President Barack Obama’s executive action on immigration was stopped in its tracks. And his Clean Power Plan is tied up in litigation. For Trump, pulling off his 2-for-1 executive order might require the wholesale repeal of legislation that drove regulations in the first place. Success on that front is not a certainty.