Consumer advocates, environmentalists, and labor challenge legality of executive order requiring new federal regulations to be offset by elimination of two existing regulations.
President Trump signed an executive order requiring federal agencies to identify for elimination two prior regulations for every new “significant regulatory action” (including guidances concerning existing regulations). The order further requires that the savings attributed to the eliminated regulations be enough to offset the costs of the new rule.
If implemented, the order would make it virtually impossible to implement new rules to protect workers, consumers, public health, or the environment, including rules that could avert repeats of the financial crisis, the BP oil disaster, the Volkswagen emissions cheating scandal, the GM ignition switch failure that killed at least 174 people, numerous mining disasters, contaminated food outbreaks, the West Texas fertilizer factory explosion, the coal ash poisoning of the Dan River, the Wells Fargo fake account scandal, to name just a few instances of corporate malfeasance that illustrate the need for increased regulation of business. Without new rules to address new business practices, new technologies and new scientific evidence, fossil fuel companies will be able to pollute more, Wall Street banks will be better positioned to dupe consumers, chemical corporations will expose their workers to more poisons, and drug companies will better be able to continue price gouging. In the words of the President of Public Citizen, “No one thinking sensibly about how to set rules for health, safety, the environment and the economy would ever adopt the Trump Executive Order approach — unless their only goal was to confer enormous benefits on big business… By irrationally directing agencies to consider costs but not benefits of new rules, it would fundamentally change our government’s role from one of protecting the public to protecting corporate profits.”
Public Citizen, the Natural Resources Defense Council, and the Communication Workers of America sued for a declaratory judgment that the order is unlawful and unconstitutional and to enjoin federal agencies from implementing it, on the grounds that it violates constitutional separation of powers, the president’s constitutional duty to “take care that the laws be faithfully executed,” and the legal prohibition on “arbitrary and capricious” action by administrative agencies.
Public Good joined a brief of public health and consumer groups in support of the plaintiffs. The brief illustrated the dangerous consequences the order would have for just one agency charged with protecting public health – the Food & Drug Administration. The order would undermine the agency’s mandate to update its regulations based on new products coming on the market, emerging threats to public health, and new scientific understandings. Instead, the order would deter the implementation of new protections required by Congress, and weaken or threaten the repeal of protections already deemed necessary via notice-and-comment rulemaking to protect the public and further Congress’ legislative goals. The FDA would be faced with untenable (not to mention arbitrary and capricious) choices, To promulgate a food safety regulation protecting us from listeria outbreaks, for example, the FDA would either have to undermine food safety by eliminating another regulation protecting our food supply (maybe protecting us from e coli), or it would have to eliminate a regulation in another area of FDA’s purview (say, eliminating testing requirements for medical devices) to offset the costs. The FDA could be forced to trade tobacco control for safer radiology standards, or regulations reducing opioid dependence for protections securing the dependability of the blood supply. Such tradeoffs are a threat to public health, impose greater economic costs than savings on society, and are contrary to law.