Trump critics: Even successful challenge to Trump deregulation order won’t undo damage already done

February 01, 2018
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A major coalition of public interest groups warns that the Trump administration's suspension of Obama-era regulations has already harmed public health and safety, and that their lawsuit challenging the president’s action won’t undo some of that damage even if they win in the courts.

The coalition led by Public Citizen has filed a lawsuit challenging Trump's order, which requires federal agencies eliminate two existing regulations for every new rule to be issued. The group has been assessing the impact of Trump's regulatory freeze, and sees major implications for consumer and environmental protections, among other concerns.

“Since this case was briefed and argued last summer, federal agencies have withdrawn or delayed pending rulemakings in the course of implementing Executive Order 13771 and the [Office of Management and Budget] guidance documents” on the administration's 2-for-1 requirement for issuing regulations, according to Public Citizen in its December filing with a federal court.

“Numerous specific agency actions demonstrate that these withdrawals and delays are attributable to Executive Order 13771 and impact plaintiffs and their members,” according to the filing by Public Citizen Litigation Group, the Natural Resources Defense Council, EarthJustice and the Communications Workers of America.

The Trump administration suspended numerous proposed rulemakings and the effective date of pending rules shortly after it came into office early last year, to allow time for federal agencies to develop proposals for eventual withdrawal or significant overhaul of those regulations.

“We have decades of excess regulation to remove to help launch the next phase of growth, prosperity, and freedom,” Trump said on Dec. 14, 2017, in announcing his administration's plans for suspending and eliminating regulations in the coming year.

“I am challenging my Cabinet to find and remove every single outdated, unlawful, and excessive regulation currently on the books,” Trump said. “I want every Cabinet Secretary, agency head, and federal worker to push even harder to cut even more regulations in 2018.”

Coalition members argue the suspension of effective dates and proposed rules has left unresolved the public health and safety concerns that had prompted those rulemakings.

“Presumably there is a public safety harm” from the Trump administration suspending the effective date for new traffic safety requirements, said Public Citizen lawyer Allison Zieve in offering an example. She noted these risks, including the possibility of traffic deaths, would occur “even while we litigate to reverse that decision.”

Other suspended rules addressed a variety of public interest concerns, from flood risks to healthcare requirements to worker safety to environmental protections.

“On December 15, 2017, the Department of Housing and Urban Development (HUD) withdrew five proposed rules, including one entitled 'Floodplain Management Protection of Wetlands Minimum Property Standards for Flood Hazard Exposure; Building to the Federal Flood Risk Management Standard,'” writes the coalition in its filing with the U.S. district court for the District of Columbia, in offering another perceived example of immediate public harm.

The HUD rule was intended to “minimize the cost to the taxpayer of repeatedly paying to rebuild flood-damaged properties, but also to avoid placing people in harm’s way,” according to litigant NRDC in its comments supporting the rule submitted during the Obama administration and cited in the pending court case.

Public Citizen issued a report in November which catalogs what the group says are other significant public harms from the Trump administration's suspension of rules, as laid out in its first Unified Agenda of Regulatory and Deregulatory Actions issued in July.

“In total, the Trump administration listed 457 rulemakings as withdrawn on its Spring 2017 Unified Agenda. This total is the most of any agenda since 1995, our analysis found,” according to the report, which the group plans to update soon to reflect the latest regulatory agenda, issued in December.

“Aside from actions intended to remove regulations already on the books, the administration also has halted work on rulemakings that are being created but not yet completed,” according the report. “This process, known as withdrawing the rulemaking, can be done very quickly – unlike eliminating an existing rule, which requires extensive procedures.”

The report, “Sacrificing Public Protections on the Altar of Deregulation,” found that the withdrawal of rules had the greatest impact on the health, energy and environmental sectors.

“The Department of Health and Human Services listed 68 rulemakings as withdrawn on the Spring 2017 Unified Agenda..., the most 'significant' rulemakings withdrawn – 54 in total,” according to the Public Citizen report. Those rules included requirements by the Food and Drug Administration, which “had the most withdrawn rulemakings of any HHS agency, 26, five of which were categorized as Economically Significant,” according to the report.

Those rules included “at least seven tobacco or smokeless tobacco related rulemakings” and a regulation “that would have required prescription drug labeling information intended for patients be presented in a 'clear and concise' way so patients can 'safely and effectively' take their drugs,” according to Public Citizen.

“The Department of the Interior listed 114 rulemakings as withdrawn on the Spring 2017 Unified Agenda – the most of any agency,” which included worker safety requirements, according to the report.

“Another withdrawn rulemaking would have ensured that coal mining operators are better able [to] prevent injuries and property damage due to the toxic gases released when blasting occurs in a coal mine,” according to the report.

The Environmental Protection Agency had 20 pending regulations suspended, all of which the Trump administration categorized as economically non-significant, according to the Public Citizen analysis.

One of those rules was a proposal “to regulate methane emissions from 'existing' oil and natural gas resources", which EPA says is “the second most common greenhouse gas emitted in the United States", according to the report.

“The administration's fervor for killing off rulemakings will leave workplaces less safe, the environment less clean and may ultimately cost lives,” concludes Public Citizen in its report.