Can Plaintiffs Challenge President Trump’s “10-to-1” Deregulation Order? A Look Back at Lawsuits Challenging the Order’s Predecessor – Climate Law Blog

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On Friday President Trump fulfilled a campaign promise and signed an executive order (EO) that directs agencies to identify 10 existing rules, regulations, or guidance documents to repeal for each new rule, regulation, or guidance that an agency promulgates. In addition, the EO, “Unleashing Prosperity Through Deregulation,” requires that the total incremental cost all new regulations, including repealed regulations, “be significantly less than zero” for fiscal year 2025. For future fiscal years, the Director of the Office of Management and Budget (OMB) is responsible for telling agencies “a total amount of incremental costs that will be allowed for each agency in issuing new regulations and repealing regulations.” The EO directs the OMB Director to provide guidance on, among other things, the standards for what qualifies as a “new” regulation and what count as “offsetting” regulations.

The new EO is a sequel to President Trump’s Executive Order 13771 of January 30, 2017, “Reducing Regulation and Controlling Regulatory Costs,” which required that at least two regulations be identified for repeal for each new regulation issued and directed that the total incremental cost of an agency’s regulations “be no greater than zero.” According to the White House’s announcement of the new EO, the first Trump administration exceeded EO 13771’s two-for-one goal, eliminating five and a half regulations for every new regulation.

Setting aside the issue of whether this characterization of the first Trump administration’s regulatory record is accurate (given accounts—see, e.g., here and here—of its relative lack of success in defending its regulatory actions, there is reason to doubt the characterization’s accuracy), this blog post provides context from the first Trump administration for potential lawsuits challenging the new Trump administration’s effort to supersize its deregulatory ambition. Facial challenges to the new EO are likely to present similar claims and to confront the same legal hurdles that ultimately blocked lawsuits challenging EO 13771.

The Sabin Center’s U.S. climate litigation database documents two facial challenges to the first Trump administration’s EO 13771. The first lawsuit was filed by Public Citizen, Natural Resources Defense Council, and Communications Workers of America, nine days after issuance of EO 13771.  The second lawsuit was filed more than two years later by California, Oregon, and Minnesota. President Trump and the OMB Director were defendants in both cases, and other defendants included heads or other officials of various federal agencies. In both cases, the U.S. District Court in the District of Columbia ultimately concluded that the plaintiffs did not have standing to challenge the EO.

The Plaintiffs’ Claims

The plaintiffs in both Public Citizen, Inc. v. Trump and California v. Trump asserted the following causes of action:

• Violation of the separation of powers doctrine. The plaintiffs contended that EO 13771 overstepped the powers conferred on the President by the Constitution and federal statutes by requiring agencies to take actions based on factors not prescribed by—and at odds with—federal statutes. 

• Violation of the Take Care Clause. The Take Care Clause (Article II, Section 3, of the Constitution) provides that the President has a duty to “take care that the laws be faithfully executed.” The plaintiffs asserted that the President violated the Take Care Clause because EO 13771 undermined implementation of federal statutes by requiring agencies to take actions contrary to legislative goals and directives. 

• Ultra vires action. The plaintiffs argued that issuance of EO 13771 was outside the President’s constitutional and statutory authority and that agencies’ and the OMB Director’s implementation of the order was therefore outside their lawful authorities. 

• Violation of the Administrative Procedure Act (APA). The plaintiffs challenged guidance that OMB had issued to implement EO 13771 as arbitrary, capricious, and otherwise contrary to law, in violation of the APA. (It does not appear that OMB has yet released any of the implementing guidance required by the 10-to-1 EO.)

Standing Hurdles

In Public Citizen v. Trump, the court (Judge Randolph D. Moss) initially dismissed the lawsuit for lack of standing in February 2018. The court first concluded that the plaintiff organizations failed to plausibly allege associational standing based on harms to their members from delays or preclusion of regulatory action resulting from EO 13771. The court found that in some cases the plaintiffs failed to identify specific members of their organizations that were harmed by regulatory  action under the EO; that the organizations did not identify specific regulations likely to be discarded or weakened as a result of the EO; that for some allegedly delayed regulatory actions the plaintiffs failed to allege that agencies intended to take final action; and that their allegations of delays with respect to other new regulatory actions did not plausibly allege that at least one member faced “a substantial risk of a concrete harm” due to the delay.

The court also concluded that the plaintiffs failed to plausibly allege organizational standing. The court found that the plaintiffs did not allege that they had declined or were “imminently likely to decline” to advocate for a new regulation “out of fear that the Executive Order” would compel repeal of existing rules. Moreover, even assuming that an alleged “chilling of their advocacy” constituted an injury, the court found that the organizations did not plausibly allege the injury was “fairly traceable” to EO 13771.

The court did, however, allow the organizations to amend their complaint. The amended complaint and accompanying declarations largely focused on the plaintiffs’ associational standing by alleging injuries to their members resulting from the withdrawal or delay of specific rules and standards. In February 2019, the court denied the government’s motion to dismiss, finding that the plaintiffs had plausibly alleged that EO 13771 caused the delay of a National Highway Traffic Safety Administration rule requiring interoperable vehicle-to-vehicle (V2V) technology in light vehicles, that the delay would likely cause harm to one or more of the plaintiffs’ members, and that invalidation of the EO and implementing guidance would redress the injury. The court further concluded, however, that the plaintiffs failed to establish associational standing as a matter of undisputed fact. With respect to the V2V rule, the court found that the government had plausibly disputed the plaintiffs’ contention that the EO caused the rule’s delay. The court also found that the plaintiffs did not proffer conclusive evidence that the EO delayed issuance of other rules. (The court also again rejected the plaintiffs’ claim to organizational standing based on a chilling of their advocacy.)

The court then granted the parties leave to conduct limited discovery regarding whether EO 13771 caused the delay or withdrawal of a rule. In December 2019, the court considered new motions for summary judgment on the issue of standing. The plaintiffs focused on alleged delays of the V2V technology rule and an energy efficiency standard for commercial water heating equipment. This time the court found that the evidence demonstrated that factors unrelated to EO 13771 and the implementing OMB guidance delayed finalization of the rules. The court also found that any allegations regarding injuries resulting from future delays were based on conjecture. The court therefore granted summary judgment to the defendants on the issue of standing and dismissed the case.

Meanwhile, California, Oregon, and Minnesota had filed their own facial challenge in April 2019 to the EO and OMB guidance after California and Oregon unsuccessfully sought to intervene in the Public Citizen case. This case was also assigned to Judge Moss. The states argued that as sovereign states they were entitled to “special solicitude” in the evaluation of their standing, and that the requirements for the imminence and redressability of their alleged injuries should be relaxed because they asserted a procedural injury. (The states contended that the EO and guidance’s “imposition of arbitrary and unlawful mandates on agency rulemaking” deprived them of “their rights to procedural regularity in conformance with congressional mandates” and harmed them regardless of the substantive outcome of rulemaking.) The states also alleged that they would be injured by the repeal of two rules not at issue in Public Citizen, including a Federal Highway Administration rule establishing a Greenhouse Gas Performance Measure.

Although Judge Moss agreed that the case was “not on all fours with Public Citizen,” he found that the states failed to demonstrate that EO 13771 caused or was likely to cause a material delay or repeal of a specific rule. Because the states did not plausibly allege standing, the court dismissed their case.

The plaintiffs did not appeal in Public Citizen v. Trump or California v. Trump.

Concluding Thoughts

The results in these two cases raise a basic question about the impact of EO 13771 and its successor: Did the previous EO actually accomplish anything? Will this one? The courts seem to have thought not—no rules were repealed as a consequence of the EO, none were materially delayed, or at least none were identified by plaintiffs at the time the court heard the cases.

Regardless, the earlier cases are likely to inform the strategies of plaintiffs planning to contest the new administration’s deregulatory efforts. Potential plaintiffs make seek avenues other than facial challenges to the 10-to-1 EO to avoid the standing issues that derailed the challenges to EO 13771, or they may assemble additional types of evidence to buttress their allegations that the EO is responsible for harms suffered when regulations and guidance are repealed or delayed, including allegations concerning lost public benefits and new costs imposed on the public intended to benefit from regulations.

Potential plaintiffs will also evaluate how shifts in administrative law doctrines over the past several years could influence the outcomes of cases challenging the EO or applications of the EO. The intervening years have seen courts, especially the U.S. Supreme Court, seek to constrain the executive branch’s ability to interpret statutes in ways the expand their authority. Does the major questions doctrine apply to the potential separation of powers issues created by the EO, and the ways in which it relies on the Budget and Accounting Act of 1921 to grant the White House extraordinary authority to inject non-statutory considerations into agency decision-making? Will Loper Bright’s overruling of Chevron deference to agency interpretations of statutes constrain agencies’ application of the EO? Without question, a politically neutral application of the new administrative law doctrines should pose significant obstacles to the EO and its implementation. Whether they will remains to be seen. We will be keeping a close eye on developments in our Climate Backtracker and our U.S. Climate Litigation Database.

Margaret Barry

Margaret Barry manages the U.S. climate litigation database.

Michael Burger

Michael Burger is the Executive Director of the Sabin Center for Climate Change Law and Senior Research Scholar at Columbia Law School.