The fate of the country’s regulatory system rests, in part, on two hours of arguments made on Aug. 10 by Public Citizen and the federal government in a Washington, D.C., courtroom. On that day, Public Citizen went head-to-head in court against the federal government to challenge a “one-in, two-out” presidential executive order that is undermining the nation’s health and safety protections.
The case, Public Citizen v. Trump, challenges an executive order barring federal agencies from issuing one new federal regulation until they repeal two existing ones. The executive order also requires that the costs of each new safeguard be offset by the repeals, without taking into account the value of the benefits of either the new or the existing public protections. The order violates the U.S. Constitution by directing federal agencies to violate the Administrative Procedure Act and other laws, Public Citizen maintains.
Public Citizen filed the lawsuit in February, in the U.S. District Court for the District of Columbia, along with the Communications Workers of America and the Natural Resources Defense Council. Earthjustice is assisting with the legal work. The suit names as defendants President Donald Trump, the director of the Office of Management and Budget, and the secretaries and directors of more than a dozen executive departments and agencies.
Allison Zieve, director of Public Citizen Litigation Group and lead counsel in the case, argued for the public-interest plaintiffs in Public Citizen v. Trump. The courtroom was filled to capacity, with 60 to 70 observers.
Over the course of the morning, Zieve refuted Trump’s government lawyers’ assertions, presented arguments to protect the public and answered the judge’s questions.
Zieve argued that the executive order is extraordinary. No law gives the President authority to make new regulations contingent on repealing existing ones and on offsetting the costs through repeal of unrelated regulations, she explained.
Among other things, the government argued that Public Citizen didn’t have a right to bring the suit at all.
Zieve countered that the three organizations brought the suit on behalf of their members, who rely on the groups to petition the government on their behalf and to advocate for strong protections. The executive order harms Public Citizen’s members by deterring new regulations and by forcing the repeal of existing regulations, for example with respect to auto safety, drug and medical device safety, workplace safety, and the environment. And on behalf of their members, Public Citizen and the two other organizations petition federal agencies for rulemaking and comment on proposed federal regulations. The order puts the groups in a lose-lose situation, by effectively making its advocacy for a new rule act as well as advocacy against two existing ones.
The order puts Public Citizen and its co-plaintiffs in an “untenable position,” Zieve said.
Further, the order injures Public Citizen’s members by causing agencies to delay, weaken or abandon new rules that would protect their concrete interests.
For instance, when creating a new federal motor vehicle safety standard, the U.S. Department of Transportation by law must consider relevant vehicle safety information and the extent to which the standard will reduce traffic accidents and deaths. The agency can consider the cost of compliance with a particular rule, but by law, its preeminent consideration is safety. By conditioning new vehicle safety standards on the costs saved by repealing unrelated rules, the order forces the agency to make arbitrary decisions with respect to new rules and to consider factors outside the scope of those unauthorized by law.
While Public Citizen v. Trump is pending in court, the executive order has taken effect. Already, rules are being delayed, including such critical safety rules addressing school bus speed limits and safety requirements for rail transportation of crude oil.
“We’ve seen with this administration, the wholesale corporate takeover of government,” said Robert Weissman, president of Public Citizen. “The central goal, above all else, of the president and his administration, is to allow corporations – in pursuit of profit – to pollute the air we breathe, to poison the water we drink, to cheat and price gouge, to engage in reckless activity. By rolling back regulatory protections they can earn even more money and that’s the only reason Trump made this such a priority.”
- Original lawsuit and press release.
- Questions and answers about the case.
- Rebuttal to White House Press Secretary Sean Spicer’s comment on the lawsuit.
- Amended lawsuit.
- View the press release for our May 16, 2017, court filing.
- Filings and documents related to the case.
- Advisory for August 2017 court hearing.