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Margaret Ann Hendrick

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The Current Impact of the “Two-for-One” Executive Order on Federal Environmental Regulations


November 1, 2017

Executive Order 13771 entitled “Reducing Regulation and Controlling Regulatory Costs” was signed by the President on January 30, 2017. The Order directs federal agencies to repeal two regulations for every new regulation and to offset the cost of any new regulation by eliminating the costs associated with at least two existing regulations. The intent of the Order is to reduce the cost and burden of complying with federal regulations on American businesses. The Order does not apply to regulations unrelated to business. Exempt from the Order are regulations relating to 1) a military, national security, or foreign affairs function of the United States; 2) the organization, personnel or management of federal agencies; and 3) any category of regulations exempted by the Director of the Office of Management and Budget (OMB). Regulations relating to the environment, natural resources, labor, transportation and health and safety will most notably be affected. Federal Agencies such as the Environmental Protection Agency, the Department of Interior, the US Department of Agriculture and the Department of Labor, to name a few, fall under its purview.

In February 2017 a lawsuit seeking declaratory and injunctive relief was filed in the United States District Court for the District of Columbia challenging the Order on its face. The lawsuit, which was filed by Public Citizen Inc., the Natural Resources Defense Council Inc., and the Communications Workers of America, AFL-CIO names Donald Trump, the acting Director of the OMB and the acting heads of each of the federal agencies affected by the Order (Public Citizen Inc. v. Donald Trump, D.D.C., No. 1:17-cv-00253). The complaint asks the court to declare that the Order cannot be lawfully implemented and to bar federal agencies and the OMB from complying with the Order. Specifically, the complaint alleges that when adopting and repealing regulations each federal agency must first comply with the substantive and procedural requirements of the Administrative Procedure Act (APA) in addition to each agency’s governing statute. Because the Order disregards these requirements compliance with the Order puts federal agencies in the position of violating existing laws.

In ruling on a recent motion, the District Court judge noted that one complicating factor in the case is that it is unclear whether the Order has yet been implemented in practice. Federal agencies are currently unsure how to comply with the Order given its conflict with existing laws. Guidance documents issued in April 2017 by the OMB contain several definitions and exemptions limiting the number of regulations that must comply with the requirements of the Order, but do not address the legal and procedural issues created by the Order. Since then, the OMB Director has only publicly identified just one new regulation that must comply with the Order, an Environmental Protection Agency rule relating to the discharge of mercury from dental offices into municipal sewage treatment plants. The OMB Director, however, did not identify the two existing regulations that must be repealed.

Given the procedural and substantive conflicts with existing laws created by the Order, and the apparent lack of implementation to date, the current impact of the Order on existing federal environmental laws appears minimal. The longer-term effect, however, will likely be a significant reduction in the adoption of new regulations until the legal issues created by the mandate that two existing regulations be repealed can be judicially resolved.

Executive Order 13771





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