Public Citizen, NRDC, and CWA v. Trump

This action sought declaratory and injunctive relief with respect to President Trump’s Executive Order on “Reducing Regulation and Controlling Regulatory Costs.” The Order directs agencies to eliminate at least two existing regulations for each new regulation issued, to offset any costs imposed by the new regulation, regardless of the benefits. The complaint explained that “[t]he Executive Order will block or force the repeal of regulations needed to protect health, safety, and the environment, across a broad range of topics—from automobile safety, to occupational health, to air pollution, to endangered species.” The mandated regulatory approach is unlawful and unconstitutional.

The mechanics of the Order will lead to direct harm to citizens. It mandates that, when implementing the command to repeal at least two rules for each new one, agencies must focus on costs while ignoring benefits. Indeed, the Order directs agencies to disregard the benefits of new and existing rules —including benefits to consumers, to workers, to people exposed to pollution, and to the economy—even when the benefits far exceed costs. The Order’s direction to federal agencies to zero out costs to regulated industries, while entirely ignoring benefits to the Americans whom Congress enacted these statutes to protect, will force agencies to take regulatory actions that harm the people of this nation.

On February 26, 2018, the district court granted the government’s motion to dismiss, holding that Public Citizen, NRDC, and CWA had failed to establish that they had standing to bring the case. We then filed a motion for leave to file a second amended complaint, accompanied by ten additional declarations, to show our standing to pursue the case. The government did not oppose our motion, which was then granted. The government then again moved to dismiss, arguing that the plaintiffs lack standing to challenge the executive order, and we moved for partial summary judgment, asking the court to hold that the plaintiffs have standing.

On February 8, 2019, the court denied the government’s motion and held that we have shown standing sufficient to defeat the motion to dismiss stage. In addition, however, the court also held that Public Citizen had not sufficiently shown enough to meet the standard of establishing standing at the summary judgment stage. The judge ordered that more factual development was needed on whether the Executive Order is delaying regulations, and thereby injuring our members by holding up public protections that would benefit them, to determine whether we can (finally) proceed to litigate the merits of the case. The judge therefore allowed us to take some limited discovery, after which we again moved for partial summary judgment seeking an order that we have standing to challenge the Executive Order and the defendants again moved to dismiss.

On December 20, 2019, however, the court dismissed the case. Although the Administration has touted the tremendous impact of the Executive Order, the court held that we could not establish that it had affected our members under the demanding standard it applied. The court noted that it is “plausible, and perhaps likely,” that the Order has delayed or derailed regulatory actions that, if adopted, would materially benefit our members. And the court acknowledged that it is hard to know the impact because the government does not inform the public whether a proposed action is delayed or abandoned because of the Executive Order. The court believed, however, that the case law required us to make such a showing.