Suit Challenges Trump’s Order on Regulations

Public Citizen, the Natural Resources Defense Council, and the Communication Workers of America have filed a complaint in DC federal court seeking an injunction to stop implementation of President Donald Trump’s executive order on reducing regulations and controlling regulation costs. The complaint names Trump, the acting director of the Office of Management and Budget (OMB), and the ranking executives in several federal agencies and departments that would be affected by the order. (FDA is not included among the named agencies but does come under the order’s purview and presumably would have to comply.)

The suit says the order, among other things, requires that an agency may issue a new regulation only if it rescinds at least two existing regulations to offset the costs of the new regulation. It directs federal agencies to (1) identify at least two existing regulations to repeal for every new regulation proposed or issued, and (2) promulgate regulations during Fiscal Year 2017 that, together with repealed regulations, have combined incremental costs of $0 or less, regardless of the benefits.

“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,” the complaint says. It contends that the order “exceeds the president’s 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 Take Care clause in the Constitution says that the president has the duty to “take care that the laws be faithfully executed.”)

The plaintiffs say that repealing two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs and without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with the law for at least three reasons. First, they say, no governing statute authorizes any agency to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives based on an arbitrary upper limit on total costs that regulations may impose on regulated entities or the economy.

Second, the groups say, the order forces agencies to repeal regulations that they have already determined, through notice-and-comment rulemaking, advance the purposes of the underlying statutes, and forces the agencies to do so for the sole purpose of eliminating costs that the underlying statutes do not direct be eliminated. And third, no governing statute authorizes an agency to base its actions on a decision-making criterion of zero net cost across multiple regulations.

The complaint asks the court to (1) declare the executive order in violation of the Take Care Clause, in excess of presidential authority under Article II of the Constitution, an infringement on legislative authority, and invalid; (2) declare that the president and the named officials cannot lawfully implement or comply with specific sections of the order; (3) declare unlawful and set aside the Office of Management and Budget interim guidance to agencies on carrying out the order; (4) enjoin the agency defendants, including the OMB director, from complying with the executive order; and (5) grant any other relief the court deems just and proper.