Trump’s Curb of US Rulemaking Challenged in Court

WASHINGTON (CN) – Whether advocating for workplace safety, public health or consumer protection, three big players in the field of federal rulemaking brought a court action in reaction to a executive order by President Donald Trump.

The Feb. 8 complaint led by Public Citizen comes just over a week after Trump made it illegal for any government agency to issue a new regulation without repealing two existing regulations. Trump’s Jan. 30 executive order also caps the cost of new regulations at zero.

Joined by the National Resources Defense Council and the union Communications Workers of America, Public Citizen says Trump’s executive order violates the Administrative Procedure Act, the separation of powers and the take-care clause of the U.S. Constitution.

“He is effectively trying to amend a lot of statutes without going through the legislative process,” Earthjustice attorney Peter Lehner said of Trump in a telephone interview.

Seattle-based Earthjustice brought the complaint in Washington, D.C., with house counsel for Public Citizen, the CWA and the NRDC. Before joining Earthjustice, Lehner served as executive director of the NRDC from 2007 to 2015.

He noted that it is the job of Congress – not the president – to carefully address how agencies weigh the cost of regulations.

“And here, in a very blunderbuss fashion, the president tries to change all that,” Lehner said.

“If Congress wants to change how the EPA should address the cost and benefits of air pollution rules for example, or toxic-waste rules, or how OSHA should address the cost and benefits of worker-safety rules, Congress can amend those statutes,” Lehner said.

“But they have to have it go through the House, the Senate, and have full debate, and the president has to sign it,” he added. “The president can’t do that just by executive order.”

Along with the president, Lehner’s suit takes aim at the Office of Budget and Management director who issued guidance on the directive. The heads of more than a dozen federal departments and agencies are also named as defendants.

Though undoubtedly a boon for Big Businesses, Trump’s executive order “will harm countless Americans,” according to the complaint, by forcing them into a Sophie’s choice scenario.

Lehner said that is not just rhetoric, the executive order could really hurt people.

“What it will do is it will make it virtually impossible, or at least very difficult, for agencies to move forward with safeguards and protections for people,” he said.

For example, if the Occupational Safety and Health Administration moves forward on a regulation to protect one group of workers, Lehner noted, the executive order would require the repeal of other regulations that could harm some other group of workers.

This would hold true as well for the Environmental Protection Agency.

“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,” the 49-page complaint states.

As a way to manage “the direct expenditure of taxpayer dollars through the budgeting process,” the executive order also stipulates that all new regulations should have a net cost of zero.

President Trump signed the executive order after a meeting with small-business owners, but the groups behind Thursday’s lawsuit note that the directive fails to consider how regulations provide a public benefit that significantly outweigh their costs.

“The executive order directs 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,” the complaint states.

Lehner noted that any benefits of deregulation would lose their shine quickly.

“It’s actually not in the United States’ economic interest to have people die in car crashes or be sick because of what they breathe or getting harmed in their workplace,” he said.

The public advocacy groups are asking the court to declare the executive order and the OMB guidance unconstitutional, and to prevent the defendant agencies from implementing it.

The White House did not respond to a request for comment on the lawsuit.