Complying with the order, which requires agencies to offset the costs of all new regulations by eliminating or streamlining two existing rules, would force agencies to violate the 1946 Administrative Procedures Act — the federal statute enabling agencies to propose and institute rules and regulations — the plaintiffs alleged.
Trump is “effectively requiring agencies to act in ways that are arbitrary and capricious in nature,” said Allison Zieve, an attorney on the case for Public Citizen. “Agencies don’t have the choice to just sit around and do nothing. Complying with the order would constitute violating statutes.”
The suit names Trump, acting Officer of Management and Budget Director Mark Sandy and several other agency leaders as defendants. Sandy issued guidance on the order this week.
While the order instructs agencies to consider benefits of regulations as spelled out in previous guidance, the plaintiffs said the crux of Trump’s policy will require agencies to examine costs of new and existing regulations completely on their own “regardless of the benefits.”
The advocacy groups plan to serve the defendants either Wednesday or Thursday, giving the Trump administration 60 calendar days to respond to the complaint with a rebuttal or a motion to dismiss. In the meantime, Zieve said, the team of attorneys is preparing for a summary judgment briefing. The resulting decision would likely happen fairly quickly, though the process would slow down if it were then further appealed.
In the interim, agencies may find themselves handcuffed from issuing any significant rule — those with economic costs of more than $100 million — which Zieve speculated may have been the Trump administration’s true intention with the order.
“It is a totally absurd way to regulate for the protection of the public,” she said.
White House Press Secretary Sean Spicer said Wednesday the lawsuit “presumes a lot of outcomes that are widely inaccurate.” He said the order would kick off a review of existing regulations to ensure they are meeting their intent without stifling job creation. Currently, he said, “We’re just willy nilly allowing regulations to occur.”
This story has been updated with comment from the White House.