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Takeaways from a Recent Challenge to the Trump Administration’s “Two-for-One” Order

Two NGOs and a labor union recently filed an action in federal court to challenge the Trump Administration’s Executive Order 13771, officially entitled “Reducing Regulation and Controlling Regulatory Costs,” but commonly known as the “Two-for-One” order because it requires two regulations to be eliminated for every regulation added. In Public Citizen, Inc. et al. v. Donald J. Trump et al., plaintiffs allege that the “Two-for-One” order conflicts with various federal statutes, which require federal agencies to consider statute-specific factors when deciding whether to promulgate or repeal regulations, and that no statutory law requires agencies to consider as part of this process whether other, unrelated regulations should be repealed.

The federal government moved to dismiss their complaint on the grounds that plaintiffs lacked sufficient standing – individual, particularized harm – to bring their case. In a lengthy opinion issued this week, a federal judge accepted the government’s arguments that plaintiffs had not demonstrated that they had standing sufficient to challenge the “Two-for-One” order in court. This said, the court has not yet dismissed the case, but instead scheduled a hearing to evaluate whether plaintiffs should be given another opportunity to amplify their standing-related allegations.

There are two takeaways from this decision:

First, standing – rooted in Article III of the Constitution – is a fundamental part of every case. It is no surprise that the federal government will use this age-old doctrine to defend Trump Administration regulatory efforts. Public Citizen emphasizes that courts require concrete allegations tying the relief that plaintiffs seek to harms the court is situated to remedy.

Second, at least for now, the “Two-for-One” order remains in place.

As further background, the Trump Administration issued executive orders that both rolled back Obama administration efforts as well as prioritized regulatory reform shortly after taking office. Among these efforts was Executive Order 13771, the “Two-for-One” order, which imposed three new restrictions on administrative process:

  1. Agencies were required to identify two regulations to repeal for every new regulation promulgated (the “Two-for-One” requirement)
  2. Agencies were required to offset private costs of compliance imposed by their regulations (the “offset” requirement)
  3. Each agency faced an annual cap on incremental regulatory costs posed by its regulations (the annual cap)
© 2019 Schiff Hardin LLP


About this Author

J. Michael Showalter, Litigator, Schiff Hardin LLP

Mike Showalter is a litigator whose practice is focused on resolving complex disputes. Mr. Showalter's past clients span diverse industries including manufacturing, mining, power generation and transmission, oil and gas, the financial and insurance sectors, and process outsourcing.

Mr. Showalter's practice has focused on distilling complicated technical information into a format where it can be understood by decision makers. He has worked with experts in fields including medicine, economics, history, physical sciences, industrial hygiene, toxicology, environmental engineering and...