Trump Executive Order Requires Cutting 2 Old Rules for Every 1 New Rule, But Is It That Easy?

The APA doesn't spell out a separate process for undoing a rule, but the law does define "rule making" as the "agency process for formulating, amending, or repealing a rule."

In 1982, the Court of Appeals for the D.C. Circuit ruled in Consumer Energy Council v. FERC that, via this definition, the APA "expressly contemplates that notice and an opportunity to comment will be provided prior to agency decisions to repeal a rule."

In other words, that means that repealing an existing rule requires the same process. And since the just-signed executive order mandates that two current rules must be targeted for repeal, that would mean that introducing a single new rule would actually mean going through the rulemaking process three times.

Even an expedited rule requires several months to go through the notice, comment, and finalizing process. Complicated new rules can take more than a year before being finalized.

If you establish a new regulation, under this order, it's not simply a matter of finding two pieces of low-hanging regulatory fruit that could arguably be sacrificed to make way for the new rule. The order specifies that for this fiscal year, the net incremental cost of all new regulations must be "no greater than zero."

That means that the eliminated rules must at least offset the cost of the incoming rule. Regulatory experts we spoke to said that this raises concerns about eliminating existing regulations based on their cost rather than their effectiveness.

Some rules are required by existing law, and these may fall outside the control of this order. If an agency fails to draft a regulation that is required by an existing statute, the agency can be sued and a court can compel the government into following through on its legal obligation.

The order does allow for exceptions to the 2-for-1 requirement, in case of "emergencies and other circumstances that might justify individual waivers."

There is currently a freeze on all new and in-progress rules in the Executive branch agencies. This is a common practice whenever a new administration moves into the White House.

What remains to be seen is if the 2-for-1 requirement will apply to only entirely new rules or also to in-progress rulemaking.

While the White House and the order's supporters contend that it's a boon for American business, a number of consumer advocates say that this new requirement is a disaster for consumer protections.

Robert Weissman of Public Citizen called today's order an "arbitrary attack" and contends that the Trump White House will likely use the 2-for-1 requirement to gut a wide array of rules protection our finances, food, and environment.

"This unprecedented and untested measure will gut the enforcement of wildly popular and successful laws including the Clean Air Act, the Clean Water Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Food Safety Modernization Act, the Pipeline Safety Act and many more," writes Weissman. "It's horrifying that even after the Wall Street crash, the massive BP oil spill and numerous other public health and safety disasters across the country due to a lack of strong regulations, Americans will once again have to pay the price for the consequences of corporate recklessness, greed and lawbreaking."

Laura MacCleery, vice president of consumer policy and mobilization for our colleagues at Consumer Reports, argues that it is the government's role to set reasonable regulations that protect consumers from dangers like predatory lending, dirty air and water, foodborne diseases, and unsafe medications.

"This order is telling federal agencies to trade off one rule that improves health or safety for two other rules, and that does not make sense," says MacCleery. "This order will require rules that impose no more costs on companies, but without accounting for critical benefits to the public that exceed the costs. That means agencies will have to put corporate costs before Americans' well-being. This is a two-for-one deal that just doesn't work for consumers."

Instead, says MacCleery, the White House should be pursuing "constructive measures to reduce delays and costs, while valuing important protections for consumers."

Michael F. Jacobson, Executive Director at the Center for Science in the Public Interest, says that this is just deregulation for the sake of deregulation.

"It's fair to assume that this latest edict was not run by any of the agencies that actually do the serious business of regulating," contends Jacobson. "If it were, Trump might have learned that not all regulations are reflexively opposed by the businesses affected by them. Certainly in the food safety world, responsible business leaders supported the Food Safety Modernization Act, which required the writing of new regulations that keep produce, packaged foods, and imports safe."

He continues, "Rather, this executive order springs from a cartoonish and unsophisticated view of the regulations that keep our air clean, our water potable, our food safe, our planes from crashing, and so on, and ignores the public health benefits of those rules."

As we've mentioned in recent months, the new Congress is expected to deploy the Congressional Review Act (CRA) to quickly dispatch a number of recently finalized rules.

The CRA is a little-used law from 1996 that gives lawmakers a brief window to review and, if necessary, voice their disagreement with any newly finalized major regulations. If the House and Senate sign off on a joint resolution of disapproval on a regulation and the President signs it, then the rule is rolled back.

Expect to see several attempts to use the CRA to undo regulations issued in the final months of the Obama administration. Last week, the cable and telecom industries urged congressional leaders to use the CRA to get rid of the FCC's new broadband privacy rules that were finalized shortly before the election.