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Trump’s Two-For-One Regulatory Fiat Spurs Court Challenge

February 14, 2017, by David Cullen


A lawsuit brought by two high-profile public advocacy groups and a prominent labor union seeks to block the executive order signed by President Trump on Jan. 30 that directs federal agencies to repeal two federal regulations for every new rule they issue.

The plaintiffs, Public Citizen, the Natural Resources Defense Council and the Communications Workers of America, filed their complaint with the U.S. District Court for the District of Columbia on Feb. 8 to secure a ruling that would declare the executive order cannot be lawfully implemented and bar the agencies from implementing the order.

Trump’s order calls for new federal regulations to have a net cost of $0 this fiscal year, but without taking into account the value of the benefits of public protections, contend the plaintiffs.

The order on “Reducing Regulation and Controlling Regulatory Costs” was issued by Trump on January 30 and Interim Guidance on complying with it was issued by the White House’s Office of Management and Budget on Feb. 2.

Named as defendants in the suit are the president, the acting director of the Office of Management and Budget and the current or acting secretaries and directors of more than a dozen executive departments and agencies, including newly confirmed Secretary of Transportation Elaine Chao.

The complaint holds that the agencies cannot lawfully comply with the president’s order because doing so would violate the very statutes under which the agencies operate as well as the federal Administrative Procedure Act.

“The Executive Order exceeds President Trump’s constitutional authority, violates his duty under the Take Care Clause of the Constitution, and directs federal agencies to engage in unlawful actions that will harm countless Americans, including plaintiffs’ members,” states the 49-page complaint.

The plaintiffs also argue these specific points in the complaint:

  • “The agencies’ governing statutes do not authorize agencies to repeal an existing regulation, weaken a new regulation, or forgo or delay a new regulation that it would otherwise issue, for the purpose of offsetting costs of new regulations.
  • “The Executive Order… requires the agencies to consider factors not specified in or inconsistent with their governing statutes, and to repeal, weaken, or delay regulations for an impermissible purpose.
  • “Agencies that comply with the Executive Order in their decisions regarding whether to propose, issue, or repeal regulations are acting in violation of their governing statutes. Decision-making based on the factors set forth in the Executive Order also constitutes action that is arbitrary and capricious, contrary to law, and in excess of agency authority."

Among numerous examples the plaintiffs offer in the complaint of “adverse effects” from the order and of how the order “directs agencies to act unlawfully and why it is unconstitutional” is the rule jointly proposed by NHTSA and FMCSA that would mandate speed-limiting devices on heavy commercial vehicles.

“NHTSA and FMCSA estimate net benefits of $500 million to $5 billion annually from the rule, including fuel savings and the prevention of thousands of traffic injuries and deaths,” the complaint states. “To promulgate the speed-limiting device regulation, the agencies would have to repeal regulations with costs of $200 million to $1.5 billion annually, without regard to the net benefits of the new regulation and the repealed regulations.”

"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,” Public Citizen President Robert Weissman said in a statement on the suit… 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.”


  1. 1. CT [ February 15, 2017 @ 04:53AM ]

    So here's the bottom line...
    No one said they had to do away with any rules or regulations, only that IF they introduce a new one to implement, they must pick two to do away with. So, pick 2 that are outdated, useless, proven ineffective, obsolete, wasteful, cost too much money, hinder small businesses, etc.
    Seems like common sense to me, but then again, these agencies and "non-profits" don't like to give up money or control...
    Time to change the way things are done in DC...

  2. 2. Marvin [ February 15, 2017 @ 04:57AM ]

    It's amazing how these idiots are so comfortable living under the complete control of government with total disregard for the very businesses that provide the jobs! You'd almost wonder why they want to live here in the first place.

  3. 3. Michael Rector [ February 15, 2017 @ 05:08AM ]

    While I understand that the NHTSA and FMCSA have goals to reduce death and injury on the highways, I do not believe that they are concerned with the individuals that they try to regulate in order to achieve those goals.

    As a one-truck owner-operator with over 650,000 miles of experience, most of the rules and regulations passed in the last five years push me to drive faster than I'd like to. For example:

    1. Taking away one hour (15 minute pre-trip, 30 minute break, and 15 minute post-trip) of my day forces me to run faster to make up for time sitting still.

    2. Setting the 8-hour limit on time between breaks takes away my flexibility for deciding when I'd need to stretch my legs and often times causes me to drive through cities during rush hour traffic instead of passing through before or after rush hour.

    3. Forcing me to install and maintain an ELD will not make me a safer driver. It will, more than likely, push me to drive at a faster pace than I normally would.

    4. If speed limiters are adopted, cars and pickups will adopt even riskier behavior to get around or in front of the big trucks. Even now, I have drivers pass me from the right in interstate entrance ramps.

    5. Another point on the speed limiter issue is that, even if two trucks are governed to the same speed, differences in cargo weight, drivetrain configuration, driver skills, and equipment age will result in unequal travel speeds in real world highway conditions where hills and valleys are the norm.

    Based on my experience, having the NHTSA and FMCSA support and mandate every new technology that comes out to achieve their goal is ineffective. We already have enough rules, regulations, and laws in place and really just need to give law enforcement the means to enforce them.

    Therefore, it is my contention that reducing the number of regulations in place is a good thing.

    Thanks for your time,
    Michael Rector

  4. 4. MC [ February 15, 2017 @ 07:08AM ]

    If regulatory agencies were smart, they wouldn't see Trump's EO as a challenge, but rather as an opportunity. It's an opportunity to streamline the agencies by taking a fresh look at old, outdated regulations. The way I see it, this is a win-win.

    For example, take 2 related regulations, update them to today's realities, flush out the ineffective and wasteful parts, eliminate loopholes and special favors, add any new items that the ever-changing world dictates, then combine it all into one 'new' law. Now you have created one 'new' regulation and eliminated two old ones as the EO dictates.

    Most people hate or even fear change, but it's an unavoidable reality we all must deal with. Many people would rather complain and pout rather than facing it head-on. Quit crying about it and figure out a way to turn it into an advantage, otherwise get out of the way so you don't get run over when reality passes you by.

  5. 5. Carlton [ February 15, 2017 @ 08:17AM ]

    Michael Rector, you are right on and I couldn't have said it any better. This ELD mandate will be biggest job killer ever. After 39 years trucking hauling mainly farm products this will put me out of business. I am lost in this modern technology and don't know how to use a smart phone.


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