Judge dismisses lawsuit challenging Trump order for agencies to cut regulations

A U.S. district court judge dismissed a lawsuit targeting a Trump administration order requiring federal agencies to eliminate at least two existing regulations for every new one they issue. The plaintiffs lacked standing to challenge the order, the judge reasoned.

The Feb. 26 ruling dealt a blow to environmental and public interest groups that have opposed the administration's efforts to roll back existing regulations, including rules aimed at protecting air and water quality. But the groups that filed the complaint said that because their lawsuit was dismissed on procedural grounds the court left the door open to future challenges.

Public Citizen, the Natural Resources Defense Council and the Communication Workers of America AFL-CIO filed the lawsuit to block an executive order that Trump signed in January 2017 requiring nonindependent federal agencies to revoke two or more existing federal regulations for every new one they issue. The order also directed the agencies to offset compliance costs for new rules with reductions in costs for existing regulations and imposed an annual cap on incremental regulatory costs that was set at zero for 2017.

The White House Office of Management and Budget later provided guidance that the order would only apply to "significant regulatory actions" that have an annual economic impact of $100 million or more or adversely affect the economy.

In their challenge to the order, Public Citizen and the other groups said no governing statute authorized agencies to withhold a potentially necessary regulation based on an "arbitrary" limit on costs or the adoption or repeal of unrelated regulations. The plaintiffs also said the order would force agencies to repeal regulations necessary to advance underlying statutes.

But in a Feb. 26 decision, Judge Randolph Moss with the U.S. District Court for the District of Columbia said the plaintiffs failed to establish standing to sue, including by not identifying particular members of their groups that would be harmed by the executive order. Moss also ruled the plaintiffs failed to show that relevant agencies would have issued a particular rule absent Trump's executive order or that a delay in regulatory action from the order would "substantially increase" the risk of harm to their members.

The judge also dismissed the three groups' claim that they have "organizational standing" to sue because Trump's directive would get in the way of their mission to encourage agencies to adopt regulations to protect public health, safety, the environment and workers' rights.

The burden of considering whether the cost of new rules justifies getting rid of old ones "is insufficient to establish organizational standing," Moss ruled. "And plaintiffs do not assert that they have actually declined — or will actually decline — to pursue a new rule out of concern that the executive order will require the relevant agency to rescind two existing rules."

Responding to the ruling, Public Citizen noted that Moss did not rule on the merits of the challenge and that the court "indicated that it may give the groups an opportunity to bolster their showing of injury." For instance, the judge ordered parties in the case, including the Trump administration, to appear March 1 before the court on "appropriate next steps," including whether the court should dismiss the complaint with leave to amend — meaning the plaintiffs could amend their original complaint to fix deficiencies — or dismiss the action.

"Today's ruling does nothing to change the fact that this executive order is blatantly unconstitutional and a textbook case of presidential overreach," insisted Trip Van Noppen, president of Earthjustice. "The president cannot unilaterally prevent agencies from putting protections in place to ensure the safety of the water we drink, the food, we eat, the air we breathe and the places we work." Public Citizen v. Donald Trump (No. 17-253)