On Feb. 8, the U.S. District Court for the District of Columbia denied the government’s motion to dismiss Public Citizen v. Trump, a case challenging a Trump administration executive order directing federal agencies to repeal two federal regulations for every new rule they issue.
The court found that Public Citizen had satisfied the standard for showing standing at this stage. It also ruled, however, that Public Citizen hadn’t sufficiently shown enough to meet the standard needed for summary judgment.
Citing estimates that regulations cost $2 trillion a year, the Trump administration is aiming to reduce the cost of regulations by 75-80 percent. The January 2017 executive order at the heart of the lawsuit covers all new “significant” rules or guidance documents issued by executive agencies. “Significant” is generally defined as an impact on the economy of $100 million or a matter of major national importance. The order does not cover rules from independent agencies that do not answer to the President, including the Federal Communications Commission, the Federal Trade Commission, the Securities and Exchange Commission, and the Consumer Financial Protection Bureau.
The order also requires covered agency heads to provide their “best approximation of the total costs or savings associated with each new regulation or repealed regulation.” During the presidential budget process, the Office of Management and Budget (OMB) director is instructed to provide regulators with a total amount of incremental costs that will be allowed for each agency in issuing new regulations and repealing regulations for the next fiscal year. In fiscal year 2017, that budget allotment was “zero.” To meet their regulatory “budget,” agencies are required to remove two rules on their books for every new rule added.
In February 2017, a coalition of consumer, environmental, and worker advocacy groups sued the Trump administration to block the executive order. The plaintiffs—Public Citizen, Natural Resources Defense Council, and the Communications Workers of America—asked the court to issue a declaration that the order cannot be lawfully implemented and bar federal agencies from implementing the order.
The complaint alleges the agencies cannot lawfully comply with the order because doing so would violate the statutes under which the agencies operate and the Administrative Procedure Act. “No one thinking sensibly about how to set rules for health, safety, the environment, and the economy would ever adopt the Trump Executive Order approach, unless their only goal was to confer enormous benefits on big business,” Public Citizen President Robert Weissman said in a statement. “If implemented, the order would result in lasting damage to our government’s ability to save lives, protect our environment, police Wall Street, keep consumers safe and fight discrimination. 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.”
By requiring agencies to consider factors not permitted under the law, the executive order “usurps congressional power and violates constitutional separation of powers principles,” plaintiffs said of the legal rationale for the lawsuit.
“Implementation of the Executive Order would require federal agencies to violate numerous statutes,” they added. “No federal statute authorizes an agency to consider, when deciding whether to issue a regulation intended to address identified harms to public safety, health, or other statutory objectives, whether it can offset the costs of the new rules by repealing two or more existing rules.”
“Establishing standing in a case like this one is no easy task,” District Judge Randolph Moss wrote in his opinion last week. “To be sure, one need only read the Executive Order to understand that it is designed to constrain the ability of federal agencies to issue new regulations and to create incentives for those agencies to rescind existing regulations. Likewise, one need only read the Unified Agenda of Regulatory and Deregulatory Actions to understand that many proposed rules have failed to advance or have been withdrawn since the Executive Order was issued. What is far less clear, however, is whether the Executive Order—as opposed to a more general change in policy between administrations—is the cause of this decline in regulatory activity.”
The hurdle plaintiffs face “is heightened” by various factors, he added. “First, the operation of the Executive Order is not transparent. The government has not disclosed, and there is no process for disclosing, whether the Executive Order has, in fact, precluded or delayed the finalization of any proposed rule. To contrary, although the administration has reported, in general, on its efforts to reduce regulation, it has yet to identify any proposed regulation that would have been adopted but for the Executive Order.”
Also, the court must “avoid any undue intrusion on the discretion of the Executive Branch to set policy priorities,” Moss wrote. “It is not the Court’s role to decide which proposed regulations should, or should not, be adopted, nor is it the Court’s role, absent a statutory directive, to set a timetable for an agency to act. Also, even assuming the Executive Order has precluded or delayed the finalization of proposed regulations, plaintiffs still bear the burden of demonstrating that they or their members have been or will likely be injured by the government’s failure to regulate.”
“It is relatively easy to establish standing when you are the regulated party; it is more difficult to do so when the government fails to regulate the conduct of someone else,” the judge added. “But the existence of these hurdles does not mean that plaintiffs’ task is impossible. … Plaintiffs have marshalled a multitude of examples of proposed regulatory actions that have failed to move forward since the Executive Order was issued, a number of which have moved from the ‘Final Rule Stage’ to the ‘Long-Term Actions’ section of the Unified Agenda.”
Moss wrote the plaintiffs “have not yet met—and ultimately may be unable to meet—their burden of proving that the Executive Order, as opposed to separate policy considerations or other factors, has delayed the issuance of a specific regulation, which would have otherwise issued, and that the resulting delay has caused them, or their members, to suffer a redressable injury.”
“This leaves the case in an unfortunate state of incertitude,” he added. “Plaintiffs have done enough to stay afloat but not enough to move forward.”
“There is still some question about why the government withdrew or delayed various rules, thereby causing injury to Public Citizen’s members,” the plaintiffs said in a statement following the court’s memorandum. “To show whether the one-in two-out executive order caused the delays, he indicated that more factual development is needed. The next step will be discovery (interrogatories, document requests or depositions) or some other fact-finding procedures to establish why the agencies delayed or withdrew the rules.”