WASHINGTON (CN) – Persuaded by numerous examples of stalled regulatory action, a federal judge advanced a lawsuit over an executive order that requires agencies to nix two directives for each new one they implement.
Public Citizen, the Natural Resources Defense Council and the labor union Communication Workers of America brought their complaint over the executive order in February 2017.
Though their initial effort did not get very far, U.S. District Judge Randolph Moss agreed Friday that their first amended complaint sufficiently demonstrates the groups’ standing to sue.
“Plaintiffs have marshalled a multitude of examples of proposed regulatory actions that have failed to move forward since the executive order was issued, a number of which have moved from the ‘Final Rule Stage’ to the ‘LongTerm Actions’ section of the Unified Agenda,” U.S. District Judge Randolph Moss wrote Friday. “They have identified executive branch statements and logical inferences that support their claims of delay.”
The Office of Management and Budget releases the Unified Agenda every spring and fall, which provides information about the federal government’s regulatory and deregulatory activities.
Though Judge Moss did advance the suit, he found it premature at this juncture to award the challengers summary judgment.
“They have not yet met — and ultimately may be unable to meet — their burden of proving that the executive order, as opposed to separate policy considerations or other factors, has delayed the issuance of a specific regulation, which would have otherwise issued, and that the resulting delay has caused them, or their members, to suffer a redressable injury,” the 55-page opinion states. “This leaves the case in an unfortunate state of incertitude: Plaintiffs have done enough to stay afloat but not enough to move forward.”
To resolve this claim, the court must probe whether the executive order caused delays or nixed old regulations. As Moss noted Friday, however, the Trump administration has not been transparent in how it is applying the executive order.
“The government has not disclosed, and there is no process for disclosing, whether the executive order has, in fact, precluded or delayed the finalization of any proposed rule,” the ruling says. “To contrary, although the administration has reported, in general, on its efforts to reduce regulation, it has yet to identify any proposed regulation that would have been adopted but for the executive order.”
Scott Nelson, in-house counsel with the group Public Citizen, did not immediately respond to a request for comment. Public Citizen did release a statement Friday, however, on the ruling.
“The judge thinks there is still some question about why the government withdrew or delayed various rules, thereby causing injury to Public Citizen’s members,” the statement says.
Among other points, the groups have claimed that 2-1 for deregulation will hurt environmental regulations and those governing automobile and workplace safety.
The Department of Justice has not returned a request for comment.