Image: WhiteHouse.gov

Image: WhiteHouse.gov

A lawsuit brought by two high-profile public advocacy groups and a prominent labor union seeks to block the executive order signed by President Trump on Jan. 30 that directs federal agencies to repeal two federal regulations for every new rule they issue.

The plaintiffs, Public Citizen, the Natural Resources Defense Council and the Communications Workers of America, filed their complaint with the U.S. District Court for the District of Columbia on Feb. 8 to secure a ruling that would declare the executive order cannot be lawfully implemented and bar the agencies from implementing the order.

Trump’s order calls for new federal regulations to have a net cost of $0 this fiscal year, but without taking into account the value of the benefits of public protections, contend the plaintiffs.

The order on “Reducing Regulation and Controlling Regulatory Costs” was issued by Trump on January 30 and Interim Guidance on complying with it was issued by the White House’s Office of Management and Budget on Feb. 2.

Named as defendants in the suit are 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, including newly confirmed Secretary of Transportation Elaine Chao.

The complaint holds that the agencies cannot lawfully comply with the president’s order because doing so would violate the very statutes under which the agencies operate as well as the federal Administrative Procedure Act.

“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,” states the 49-page complaint.

The plaintiffs also argue these specific points in the complaint:

  • “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… requires the agencies to consider factors not specified in or inconsistent with their governing statutes, and to repeal, weaken, or delay regulations for an impermissible purpose.
  • “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. Decision-making based on the factors set forth in the Executive Order also constitutes action that is arbitrary and capricious, contrary to law, and in excess of agency authority."

Among numerous examples the plaintiffs offer in the complaint of “adverse effects” from the order and of how the order “directs agencies to act unlawfully and why it is unconstitutional” is the rule jointly proposed by NHTSA and FMCSA that would mandate speed-limiting devices on heavy commercial vehicles.

“NHTSA and FMCSA estimate net benefits of $500 million to $5 billion annually from the rule, including fuel savings and the prevention of thousands of traffic injuries and deaths,” the complaint states. “To promulgate the speed-limiting device regulation, the agencies would have to repeal regulations with costs of $200 million to $1.5 billion annually, without regard to the net benefits of the new regulation and the repealed regulations.”

"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 on the suit… 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.”

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