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Daily News Blog

10
Feb

NRDC and Others Sue Over Two-for-One Executive Order

(Beyond Pesticides, February 10, 2017) On Wednesday, the Natural Resources Defense Council (NRDC), along with Public Citizen and the Communications Workers of America, sued the Trump administration in the U.S. District Court for the District of Columbia in an attempt to block an executive order (EO) mandating that federal agencies zero out costs to regulated entities, while ignoring benefits to the public, environment, and natural resources. The so-called “Two for One” order requires agencies to propose the repeal of two regulations for every new regulation that is proposed.

The Executive Order in question mandates that new rules have a net zero cost to regulated entities in fiscal year 2017, with no mechanism for taking into account the value of benefits they provide in the form of public protection. According to the complaint, “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 Executive Order’s direction to federal agencies to zero out costs to regulated industries, while entirely ignoring benefits to the Americans whom Congress enacted these statutes to protect, will force agencies to take regulatory actions that harm the people of this nation.”

The suit names as defendants President Trump and Mark Sandy, the acting director of the Office of Management and Budget (OMB). The OMB is charged with implementing the executive order and has already issued interim guidance to enforce its terms. The suit also names the current or acting secretaries and directors of numerous executive departments and agencies. The plaintiffs ask that the court find the order unconstitutional and bar agencies from implementing the order. Plaintiffs claim that agencies cannot lawfully comply with the EO, as doing so would violate several laws under which the agencies operate, including the Administrative Procedure Act (APA).

The complaint also shows how programs implementing many major federal laws, including the Endangered Species Act, the Toxic Substance Control Act, and the Clean Air Act, could be negatively affected by the EO. For example, the Endangered Species Act (ESA), which was enacted to halt and reverse species loss in the United States, was written with little emphasis on cost. The law currently mandates that the cost of designating critical habitat should be considered only in tandem with the benefits of creating that habitat, placing the priority on species preservation. The new EO would change the spirit and intent of that law, however, by mandating that the cost of designating critical habitat be considered in isolation from the requirements of the ESA. This would force agencies to make determinations that are inconsistent with the underlying statutes, resulting in violations of existing federal law. Additionally, as stated in the complaint, the EO may force agencies to “make an impermissible and arbitrary choice –whether to issue a new standard at the cost of the loss of benefits of two existing standards.” Plaintiffs feel that abiding by the EO could constitute an arbitrary and capricious abuse of discretion under the APA and other governing statutes. The complaint states, quoting the decision in Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., “In the APA, Congress directed federal agencies to undertake reasoned and evidence-based decision-making when exercising their delegated authority to promulgate rules. An agency must consider the factors that Congress has directed it to consider and cannot ‘rel[y] on factors which Congress has not intended it to consider.’”

It is important to note that regulations are typically issued as required by law –laws that were passed in response to existing needs. All regulations undergo a process of public notice and comment, and reflect the agency’s position based on consideration of public input. According to a joint press release written by the plaintiffs, “A draft 2016 report to Congress from the White House OMB estimates that the annual benefits from all major regulations over the past 10 years for which agencies monetized both benefits and costs were between $269 billion and $872 billion, while the costs were between $74 billion and $110 billion, in 2014 dollars. OMB’s 2005 report to Congress estimated that major rules from the previous 10 years provided annual benefits of $69.6 billion to $276.8 billion, while costing between $34.8 billion and $39.4 billion.” Thus, the benefits of major regulations already outweigh the costs associated.

This case is just the latest development in efforts to combat the Trump Administration’s assault on the environment. Earlier this week, a nonpartisan group of 447 former Environmental Protection Agency (EPA) employees united to write a strongly-worded letter urging the Senate to block Scott Pruitt’s confirmation as EPA Administrator. Citing EPA’s “fundamental obligation to act in the public’s interest based on current law and the best available science,” the group, whose members served under both Democratic and Republican presidents, calls into question Pruitt’s qualifications, given his longstanding record of opposing “longstanding tenets of U.S. environmental law.”

Action Items

Beyond Pesticides urges citizens to call or email elected representatives in Congress to voice concerns about the Trump administration’s efforts to undermine environmental protections and public health. Beyond Pesticides advocates acting by calling or emailing elected representatives in Congress to let them know that the Trump administration’s silencing of EPA will not be tolerated and demanding transparency and science-based standards going forward. Environmentalists also encourage following the lead of the 447 former EPA employees by calling Senators to tell them to vote against the confirmation of Scott Pruitt to Administrator of EPA.

Source(s): NRDC, Public Citizen, The Washington Post

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

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