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Trump Administration’s regulatory rollback attracts lawsuits

Joe Mont | April 12, 2017

The Trump Administration is defending itself against lawsuits protesting recent regulatory rollback orders. In a court filing this week, White House officials asked the U.S. District Court for the District of Columbia to dismiss a lawsuit brought against it by consumer and environmental groups. 

At the crux of one lawsuit is an Executive Order, issued in January. It demanded that a government agency may only issue a new regulation if it rescinds at least two existing regulations in order to offset the costs of the new regulation. The EO directed agencies, among other things: to identify at least two existing regulations to repeal for every new regulation proposed or issued; and to promulgate regulations during fiscal year 2017 that, together with repealed regulations, have combined incremental costs of $0 or less, regardless of the benefits. The total incremental cost limit for future fiscal years is to be identified later by the Director of OMB.

In response, Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America sued the Trump Administration in February. It seeks to block the executive order, asking the court to issue a declaration that the order cannot be lawfully implemented and bar the agencies from implementing the order.

The lawsuit, filed in the U.S. District Court for the District of Columbia, names as defendants the president, the acting director of the Office of Management and Budget and the current or acting secretaries and directors of more than a dozen executive departments and agencies. The complaint alleges that the agencies cannot lawfully comply with the president’s order because doing so would violate the statutes under which the agencies operate and the Administrative Procedure Act.

“By irrationally directing agencies to consider costs but not benefits of new rules, it would fundamentally change our government’s role from one of protecting the public to protecting corporate profits,” Public Citizen President Robert Weissman said in a statement.

The plaintiffs in the lawsuit are represented by lawyers at Public Citizen Litigation Group, NRDC, CWA and Earthjustice.

“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 lawsuit claims. “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.”

“To repeal 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 law,” the lawsuit adds. “First, no governing statute authorizes any agency to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs (for fiscal year 2017, a limit of $0) that regulations may impose on regulated entities or the economy.”

The Executive Order also “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,” it adds. “No governing statute authorizes an agency to base its actions on a decision-making criterion of zero net cost across multiple regulations. Rulemaking in compliance with the Executive Order’s “1-in, 2-out” requirement cannot be undertaken without violating the statutes from which the agencies derive their rulemaking authority and the Administrative Procedure Act.”
In a counter filing on April 10, White House officials dismissed those arguments as counter to decades of established Executive Order powers. The President dies indeed have the power to place limitations and restrictions on agency rulemaking, their brief argued.
president has the power to issue an order requiring agencies to cut regulations as Trump did. 

Another argument: the plaintiffs are jumping the gun because the Executive Order has yet to actually result in specific acts of deregulation.

That isn’t the only lawsuit the administration must contend with in the coming days.

New York Attorney General Schneiderman, leading a state and municipal coalition, has announced that he is commencing legal action against the Trump Administration for violating federal law by delaying energy efficiency standards for several common consumer and commercial products, including ceiling fans, portable air conditioners, walk-in coolers, freezers, and commercial boilers.

The six standards being blocked by the Trump Administration “offer dramatic air pollution reductions, as well as energy- and cost-savings to consumers and businesses,” they argue According to federal Department of Energy estimates, the standards would combine to eliminate emissions of 292 million tons of the greenhouse gas carbon dioxide, 734 thousand tons of the pollution that creates soot and smog, 1.2 million tons of the potent climate change pollutant methane, and over 1,000 pounds of highly-toxic mercury, over a 30 year period.

"Energy efficiency standards are vital to public health, our environment, and consumers. This is yet another example of how the Trump administration’s polluter-first energy policy has real and harmful impacts on the public health, environment – and pocketbooks – of New Yorkers,” Schneiderman said in a statement. “By blocking these common sense standards, the administration is reversing progress in cleaning the air we breathe and fighting climate change and denying consumers and businesses some $24 billion in savings.”

Joining Attorney General Schneiderman in the lawsuit regarding ceiling fans are the Attorneys General of the states of California, Connecticut, Illinois, Maine, Massachusetts, Oregon, Vermont, and Washington, as well as the Pennsylvania Department of Environmental Protection and the City of New York. 

The lawsuit charges that the Whitw House violated “anti-backsliding” provisions “by effectively weakening the final standards published in January, and violating the Administrative Procedures Act by being undertaken without the public notice and comment required by law when substantive changes are made to published final rules. “

An initial lawsuit by the coalition, in the Second Circuit Court of Appeals, sues the administration “over its illegal delay of the effective date of the ceiling fan efficiency standards.” The suit seeks a court order to require the standards to go into effect immediately.