Judge skeptical of both sides in Trump order fight

Source: Amanda Reilly, E&E News reporter • Posted: Friday, August 11, 2017

A federal judge  grappled with whether President Trump had the authority to issue an executive order requiring agencies to scrap two regulations for every new one created.

At a hearing, District of Columbia U.S. District Judge Randolph Moss appeared skeptical at times of the government’s claims that the order was consistent with prior administrations’ actions to review regulations.

“This is fundamentally different,” the judge said during more than two hours of oral arguments.

But Moss, an Obama appointee, also said he struggled with public interest groups’ claims that the order was illegal on its face. And he questioned whether they have standing to bring a lawsuit in the first place.

Along with requiring federal agencies to eliminate two rules for every new one, Trump’s January order established a regulatory budget for how much agencies can spend on new rules each year. The budget for 2017 was zero dollars, meaning agencies must offset any new standards by repealing old ones.

In February, the Natural Resources Defense Council, Public Citizen and Communications Workers of America filed suit against the administration and several agencies, arguing the order is illegal because it attempts to override laws passed by Congress that may require rulemaking.

The lawsuit argued that, by requiring agencies to consider the costs — and not the benefits — of rules, the order also effectively amends many statutes without going through the legislative process.

“This executive order is extraordinary. It’s not like any prior executive order,” said Allison Zieve, an attorney for Public Citizen, at today’s hearing. “It’s outside the bounds of what Congress could have possibly envisioned.”

Republican states and groups representing business and industry support the Trump administration in the suit, while science groups and law professors have urged the court to toss out the executive order.

Today’s hearing in front of Moss focused on the public interest groups’ motion for summary judgment and the government’s motion to dismiss the case.

Justice Department attorney Brett Shumate argued the president has broad authority under the Constitution to issue executive orders supervising the regulatory process. And he noted that the order applies only to the extent that it’s consistent with federal law.

Shumate countered Zieve’s claims that the order was extraordinary, saying it was in the “same vein” as prior presidential directives — including those issued by President Obama — that mandated agencies to review regulations.

‘Shadow regulatory process’

But while prior executive orders required agencies to look at regulations, Moss said Trump’s order requires federal officials to take into account issues and rules that are “completely unrelated” when considering whether to propose a new mandate.

Moss also seemed troubled that the public would not know whether an agency has taken an action directly because of the executive order, or how much the executive order figured into future agency decisions about rulemaking.

The Trump order in effect establishes a “shadow regulatory process,” Moss said. “This is imposing an entirely separate administrative regime on top of the existing administrative regime.”

And he asked several questions of the government attorney on the order’s directive to only consider the costs of rules, including what would happen with actions that have some costs that are greatly outweighed by the benefits.

Shumate said the order provides for flexibility, including White House waivers and rule trading with other agencies. And several agencies already have credits thanks to lawmakers wielding the Congressional Review Act to kill off several Obama-era standards, he said.

“It’s not like agencies are going to be repealing regulations that have massive benefits and very little costs,” Shumate said.

While Moss asked tough questions of the Justice Department, he also noted that a “pretty high standard” governed the public interest groups’ constitutional claims.

The judge said he struggled with Public Citizen’s claims that the executive order is illegal simply because the government can’t point to any statute that authorizes agencies to offset new regulations by getting rid of old ones. Moss said he wasn’t sure whether Congress’ silence on the issue meant the agencies didn’t have that authority.

He also appeared skeptical of Public Citizen’s concerns that agencies will unlawfully delay rules in response to the order. Moss questioned several times whether that would violate the law in instances where Congress hasn’t set any specific deadline for an agency to act.

“I’m struggling a little bit,” he said.

Legal standing

The case may come down to procedural issues.

The federal government claims Public Citizen, NRDC and Communications Workers of America don’t have standing to sue. Shumate argued today that the groups haven’t shown they are directly and concretely harmed by the executive order.

At today’s hearing, Zieve countered that the public interest groups are harmed because the order “inhibits and skews” their advocacy for new regulations to protect public health.

Zieve said the order puts them in a “lose-lose” situation: They can petition for new rules to help the public, but if they’re successful in convincing an agency to issue a new regulation, the agency will eliminate two other rules.

“We’re darned if we do, and darned if we don’t” petition for new rules, Zieve said, adding that since the executive order was issued, Public Citizen has formally petitioned for just one new regulation from the Trump administration.

But Moss questioned whether Public Citizen could be certain that eliminated rules would affect public health. The judge suggested he may need more information before making a determination on standing.

“How do you know the loss will be a regulation you care about?” Moss asked.

The Trump administration also claims that the case is premature because agencies haven’t taken specific action in response to the order.

“We need to wait to see how agencies will implement the executive order,” Shumate said.

Shumate noted that agencies have taken steps to issue regulatory actions over the past six months. He said the White House has reviewed 46 regulatory actions, 24 of which are final rules. Only a handful would likely require offsets, he said.

Zieve, though, argued the order was already creating a chilled regulatory environment. “Now is the best time to address the case,” she said.