On Monday, on behalf of our client, the Union of Concerned Scientists, Foley Hoag filed an amicus brief in support of the plaintiffs in the case challenging President Trump’s Executive Order 13771, the so-called “2 for 1” EO. One paragraph from the brief pretty much summarizes the argument:
It is important to note, as Executive Order 13771 acknowledges, that agencies are already required, where not prohibited by law, to ensure that the benefits of regulations exceed their costs. Thus, the only impact of the Executive Order is to prohibit agencies from promulgating regulations whose benefits exceed their costs, unless they eliminate two other regulations whose benefits also exceed their costs. This is the definition of unreasoned decisionmaking. It is also a thumb in the eye of Congress, which enacted public health and environmental statutes in order to benefit the public.
Put simply, I think that the EO is indefensible. It’s not about regulatory reform. It’s a transparent attempt to halt environmental regulation in its tracks, without regard to the benefit those regulations provide.
It is a bitter irony that the government is defending the EO in part on the basis that it is just another in a long line of regulatory reform EOs, when in fact the EO is a repudiation of those prior orders, not an extension of them. This order is not about cost-benefit analysis; it is about cost-only analysis. By definition this approach ignores the public benefits that the underlying statutes are intended to provide. Thus, the “savings clause” cannot save the EO, because there is nothing left to save.