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Jan Lee headshot

NRDC: Trump's 2-for-1 Regulation Order is an 'Abuse of Discretion'

By Jan Lee

On Jan. 30, President Donald Trump signed an executive order that would significantly change how regulations are passed. And some are calling it executive overreach.

In a new lawsuit, a group of nonprofits say President Trump’s "two-for-one" executive order is “arbitrary, capricious [and] an abuse of discretion.”

The suit was filed by the Natural Resources Defense Council, Public Citizen Litigation Group and Communication Workers of America. They argue the order actually jeopardizes public safety, rather than creating efficient, well thought-out laws.

“The executive order makes it harder to protect the public by erecting barriers to the issuance of new regulations and by creating incentives to repeal existing regulations, even if they are continuing to safeguard the public,” NRDC said in a written statement this week.

The plaintiffs also point out that the order requires agencies to maintain a net-zero cost ratio; in other words, they must guarantee the regulations they repeal result in a cost savings that would “cancel out” the cost of the new regulation put in place.

“President Trump’s order would deny Americans the basic protections they rightly expect,” NRDC President Rhea Suh said on Wednesday. “New efforts to stop pollution don’t automatically make old ones unnecessary.  When you make policy by tweet, it yields irrational rules.”

Suh pointed to lingering questions around how the Environmental Protection Agency can effectively protect public safety under the new rule. “This order imposes a false choice between clean air, clean water, safe food and other environmental safeguards.”

After the rule was announced, the Office of Management and Budget attempted to add further guidance about how the executive order is supposed to work. The OMB pointed out that it is only meant to be temporary, like most directives the administration has implemented. The agency also outlined a Q&A for departments and agencies that may be confused as to how they can easily strike down two regs and enact a third with a net-zero cost.

The Regulatory Affairs Professional Society (RAPS) built upon this helpful bit of information by noting that the Food and Drug Administration has a list of regulations that may have attracted Trump's attention when he announced plans to cut federal regulations "by 75 percent." And, RAPS noted, the OMB guidance now offers some ways that agencies like the FDA can waive the requirements of the order.

Still, there's no guarantee the Trump administration will win this lawsuit, wrote C. Ryan Barber, a reporter for the National Law Journal.

“Judges do push back,” he insisted. The Obama administration, secure in its approach when it came to immigration, “was stopped in its tracks.” Obama’s Clean Power Plan and the Affordable Care Act both resulted in lengthy court cases, with different outcomes to date (the Clean Power Plan received an injunction, but is still in litigation).

“For Trump, pulling off his 2-for-1 Executive Order might require the wholesale repeal of legislation that drove regulations in the first place. Success on that front is not a certainty,” Barber wrote.

And then there is Trump’s increasingly fractious relationship with the judicial branch. He has repeatedly questioned the authority of judges overseeing cases he has a vested interest in. His most recent tweet criticizing the appeals court judges who are reviewing his travel ban for seven primarily Muslim countries has garnered top headlines -- again. But it has also elicited a rare comment from his own Supreme Court pick, Neil Gorsuch, who summed up Trump’s critiques as “demoralizing.”

Trump is obviously driven to break the mold when it comes to convention, both in business and politics. But will it yield the results he needs to meet his campaign promises and more importantly, to ensure government policies protect the resources that businesses and communities rely upon?

The outcome of this latest lawsuit may offer the clearest indication of whether the Trump administration’s strategy will truly “cut government” and improve support for small and large businesses in years to come.   With more than 50 suits lodged against the White House in less than 30 days, reducing the cost of regulatory oversight may not be the only fiscal challenge that the federal government will now have to tackle.

Image credit: Flickr/Michael Vadon

Jan Lee headshot

Jan Lee is a former news editor and award-winning editorial writer whose non-fiction and fiction have been published in the U.S., Canada, Mexico, the U.K. and Australia. Her articles and posts can be found on TriplePundit, JustMeans, and her blog, The Multicultural Jew, as well as other publications. She currently splits her residence between the city of Vancouver, British Columbia and the rural farmlands of Idaho.

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