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Public Citizen v. Trump

ELR Citation: 48 ELR 20031
Nos. 17-253, (D.D.C., 02/26/2018) (Moss, J.)

A district court held that public interest and environmental groups lacked standing to challenge the "two-for-one" executive order issued by President Trump on January 30, 2017. The order requires executive branch agencies to identify two existing regulations to be repealed for every new regulation, requires agencies to offset the private costs of compliance posed by new regulations by eliminating the costs associated with existing regulations, and imposes an annual regulatory cap on incremental regulatory costs that each agency may introduce. The groups argued that the order runs counter to a number of federal statutes, all of which require federal agencies to consider statute-specific factors in deciding whether to promulgate or to repeal regulations, and none of which permits the agencies—or the President—to premise those decisions on the adoption or repeal of other, unrelated regulations. The court did not address the merits of the groups' claims because they failed to plausibly allege or proffer facts that would establish their standing to sue. They invoked "associational standing" by arguing that their members will suffer harm because the order would likely delay or preclude a number of regulatory actions. But they failed to identify particular members who would be harmed, to show that the relevant agency would have issued the rule absent the executive order, or that any delay attributable to the order would substantially increase their members' risk of harm. The groups also asserted organizational standing, claiming the order has a chilling effect on their missions to encourage agencies to adopt regulations to protect public health and safety, the environment, and workers’ rights. But the groups' burden of having to consider whether the cost of proposing a new rule is worth the loss of two existing rules is insufficient to establish organizational standing.