Two-for-one executive order on regulations headed for showdown

The Environmental Protection Agency is moving forward to protect people’s health from toxic chemicals, despite an executive order from President Trump that requires two existing regulations to be repealed for every new regulation approved.

Photo: André Künzelmann, Wikimedia commons

On Tuesday, the EPA will hold a public hearing to help develop rules for controlling the use of 10 chemicals evaluated under the revised Toxic Substances Control Act. (See EPA Public Workshop.) As I described in Water Ways, Dec. 1, these high-hazard chemicals could be banned or significantly restricted in their use. Seven of the first 10 under review have been found in drinking water at various sites across the country.

Preliminary information about the chemical risks and the evaluation process can be found on EPA’s TSCA website.

The revised Toxic Substances Control Act received overwhelming bipartisan approval in Congress. Even the chemical industry supported the law, in part because it would limit what states can do to ban chemicals on their own. Check out my story in the Encyclopedia of Puget Sound.

We have yet to see how Trump’s executive order on controlling regulations will affect upcoming rules for toxic chemicals, but the order is already causing some confusion. It has been ridiculed as “nonsensical” by environmental groups, which filed a lawsuit this week seeking to overturn the order. More than a few Republicans say they don’t know how it will work.

On its face, the Executive Order on Reducing Regulation and Controlling Regulatory Costs (PDF 1.1 mb) is fairly simple. It requires that two existing regulations be repealed for every new regulation that is approved. In so doing, the costs of the new regulation must not exceed the savings of the two repealed regulations. Details are specified in interim guidance (PDF 667 kb) from the Office of Information and Regulatory Affairs.

One of the primary objections to the order is that it totally ignores the potential financial benefits — not to mention the health and environmental improvements — brought about by many regulations. What is considered an extra expenditure by industry, for example, could ultimately save more money in health costs for people who benefit from the rules.

Christine Todd Whitman, a Republican who headed the EPA under former President George W. Bush, said major changes can be expected anytime a new administration comes into office, but Trump may be over-reaching.

Christine Todd Whitman
Photo: EPA

“It’s the two-for-one that bothers me that most,” Whitman said in an interview with NPR’s “Here & Now.”

“I mean, it’s one thing to say, ‘Look, we need to scrub our regulations. We need to make sure that those that we have in place are doing the jobs they’re supposed to do, that they haven’t outlived their usefulness, that they are not holding back our ability to grow as a country, economically,” she said. “But two-for-one just doesn’t make a whole lot of sense, because there’s just not a bucket somewhere sitting with useless regulations.”

Trump’s executive order creates a conflict with court rulings and scientific evidence requiring updated regulations under the law, she said. “And, what you don’t want to do is to say, ‘Well, we’re just not gonna move forward with any new regulations, because we can’t find a regulation that we think is irrelevant.'”

The lawsuit opposing the executive order (PDF 1.5 mb) was filed Wednesday by Public Citizen, a consumer-advocacy group; Natural Resources Defense Council, an environmental group; and Communications Workers of America, a labor union.

As stated in the complaint, “The 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.

“Indeed, the executive 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 exceed costs.

“The executive order’s direction to federal agencies to zero out costs to regulated industries … will force agencies to take regulatory actions that harm the people of this nation,” the lawsuit says.

Methods for approving and repealing regulations are spelled out in the longstanding Administrative Procedures Act as well as various statutes approved by Congress — and they cannot be overridden by an executive order, the lawsuit claims.

With regard to the Toxic Substances Control Act, the law requires EPA to evaluate chemicals for safety “without consideration of costs or other nonrisk factors.” One chemical under review is trichloroethylene, which has been found to harm developing fetuses and cause various forms of cancer in humans.

“The agency estimates that the [proposed] vapor-degreasing rule will impose costs from $30 million to $45 million annually but have net benefits (including health protection benefits) of $35 million to $402 million annually,” the lawsuit says, “and that the aerosol-degreasing and spot-cleaning rule will impose costs of $170,000 annually but have net benefits of $9 million to $24.6 million annually.”

The executive order requires that new protective regulations be offset by repealing existing regulations without considering the cost benefits of either the new regulations or the old ones.

“To repeal two toxic substance safety standards for the purpose of adopting one would be arbitrary, capricious, an abuse of discretion and contrary to the TSCA,” the lawsuit says.

While reading over the legal complaint, I was wondering if these groups might have filed the lawsuit too soon. Normally, the courts will not rule on a case like this before the government takes an action that causes actual harm. Perhaps, I thought, they really need to wait until an agency either refuses to approve a new regulation or repeals an existing one in violation of federal law.

Then I realized that various environmental laws allow for any citizen to bring a lawsuit against the federal government for failure to protect human health, the environment or endangered species. In challenging the executive order, the NRDC points out that the president’s directive, if it stands, could force environmental groups to make some life-or-death decisions.

The Endangered Species Act, for example, does not allow federal agencies to consider costs when listing species as threatened or endangered, but costs must be balanced when protecting “critical habitat” to help avoid extinction. Trump’s executive order itself goes well beyond the balancing of costs spelled out in the ESA, according to the lawsuit.

Furthermore, the NRDC and other groups will sometimes sue the government to compel an agency to designate critical habitat. The executive order places groups like the NRDC in an “untenable position,” according to the lawsuit. They can either file a lawsuit, knowing that the responsible agency will then proceed to eliminate critical habitat designations for two other species, or they can allow the agency to continue to violate the Endangered Species Act.

The NRDC argues that the latter would be detrimental not only to the species at risk but also to people who have scientific, recreational, aesthetic and other interests in protecting that species. One way or another, the NRDC argues, the executive order will have a detrimental effect on threatened and endangered species as a whole, contrary to the law approved by Congress.

So far, I have heard of no agencies delaying, avoiding or repealing regulations on account of the new executive order. But, considering that federal agencies come under the president’s authority, we can expect that legal battles have just begun, and this matter may require congressional intervention.

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