By Susan Lasser, J.D.
Three public interest groups have filed suit against the Trump Administration seeking to block Executive Order 13771 signed by President Trump on January 30 directing federal agencies to identify two federal regulations for repeal for every new regulation proposed. The lawsuit requests declaratory and injunctive relief as to the executive order as well as with respect to an Office of Management and Budget (OMB) interim guidance, issued on February 2, regarding the order’s implementation. The interest groups assert that the executive order is facially unlawful and that implementation and enforcement of it should be enjoined (Public Citizen, Inc. v. Trump, No. 1:17-cv-00253, February 8, 2017).
The complaint brought by Public Citizen, Inc., National Resources Defense Council, Inc., and Communications Workers of America—groups representing consumers’, environmental, and workers’ interests—asserts that the executive order "exceeds President Trump’s constitutional authority, violates his duty under the Take Care Clause of the U.S. Constitution, and directs federal agencies to engage in unlawful actions that will harm countless Americans, including plaintiffs’ members." In addition, the groups complain that 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." Referring to the order’s requirement that the total incremental cost of all new regulations, including repealed regulations, be no greater than $0, the interest groups object to the order’s focus on costs and its direction to agencies to disregard the benefits of new and existing rules, "including benefits to consumers, to workers, to people exposed to pollution, and to the economy—even when the benefits far exceed costs." Zeroing out costs to regulated industries and ignoring these benefits will "force agencies" to take harmful regulatory actions, according to the complaint.
The groups also maintain that imposing rulemaking requirements beyond and in conflict with the requirements under the Administrative Procedure Act (APA) and the statutes from which the federal agencies derive their rulemaking authority, the President’s order exceeds his authority under the Constitution, "usurps Congress’s Article I legislative authority, and violates the President’s obligation to ‘take Care that the Laws be faithfully executed.’"
Application of the order. The complaint provides examples of how certain agencies will be affected by the order. One such example notes that the National Highway Traffic Safety Administration (NHTSA) proposed in January 2017 that all new light vehicles be required to include crash-avoidance technologies known as vehicle-to-vehicle (V2V) communications allowing information about a vehicle’s speed, heading, brake status, and other data to be sent to surrounding vehicles, and for that vehicle to receive the same information from other vehicles. The estimated cost of the regulation is $2–5 billion. It’s also estimated that such technology could potentially prevent 424,901–594,569 crashes and save 955–1,321 lives annually. NHTSA estimates that the safety standard will have net positive benefits within 3 to five years. However, the complaint states, in spite of "the huge net benefits to society, including benefits to plaintiffs’ members, NHTSA will not be able to promulgate this safety standard without repealing two other regulations that impose equivalent or greater costs." To repeal two vehicle safety standards for the purpose of adopting one, according to the complaint, would be "arbitrary, capricious, an abuse of discretion, and contrary to the [Motor Carrier] Safety Acts [of 1935 and 1984]." As such, the executive order adds considerations inconsistent with the Safety Acts and, thus, "exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed."
Relief requested. The interest groups ask that the court declare the executive order is 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. The also request that the court declare that the President and defendant directors of certain agencies "cannot lawfully implement or comply" with the executive order; and that the court declare unlawful and set aside the OMB Interim Guidance. Finally, the complaint asks that the agency defendants, including the director of OMB, be enjoined from complying with the executive order.
The case is No. 1:17-cv-00253.
Attorneys: Allison Marcy Zieve (Public Citizen Litigation Group) for Public Citizen, Inc.; Natural Resources Defense Council, Inc.; and Communication Workers of America, AFL-CIO.
Companies: Public Citizen, Inc.; Natural Resources Defense Council, Inc.; Communication Workers of America, AFL-CIO
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