Trump’s “2 for 1” EO: Can You Say “Arbitrary and Capricious”?

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.

3 thoughts on “Trump’s “2 for 1” EO: Can You Say “Arbitrary and Capricious”?

  1. Well said. I would be interested in a follow-up posting showing your application of this principle to the Clean Power rule.

    • Thanks. CPP is a little different, because there are pure questions of law regarding EPA’s authority to promulgate the original CPP. EPA could go back and rewrite the rule based on a different assessment of its authority.

  2. I am a retired Environmental professional. As such, I was for some time employed as a regulator. The remainder of my career involved applying regulations in the protection of the environment and the people who were charged with protecting it. The regulations all go through extensive and sometimes brutally lengthy reviews including comment requests from involved people, including those being regulated. They are well reviewed and to my knowledge not useless, overburdening, or unnecessary. To refer to them as such shows a deep misunderstanding of the system and the need for regulation. It is sad, unfortunate, and foolhardy for this 2 for 1 approach to ever be even considered. EHS is a big and complicate affair and must not be simplified by simple thinkers.

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