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Judge dismisses challenge to Trump 2-for-1 deregulation order

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A federal judge dismissed a lawsuit challenging President Donald Trump’s executive order requiring agencies to repeal two existing regulations for each new regulation they put in place.

In Public Citizen v. Trump, Washington-based consumer advocacy group Public Citizen Inc., New York-based environmental nongovernmental organization The Natural Resources Defense Council and the Washington-based Communications Workers of America labor union sued the administration last year in the U.S. District Court for the District of Columbia, asking the court to stop the administration from implementing and enforcing the Jan. 30, 2017, executive order.

The executive order stated that an agency may issue a new regulation only if it rescinds at least two existing regulations to offset the costs of the new regulation. It directed agencies to identify at least two existing regulations to repeal for every new regulation proposed or issued and to promulgate regulations during fiscal year 2017 that, together with repealed regulations, have combined incremental costs of $0 or less.

The organizations argued that the president’s order is unconstitutional because it requires agencies to exceed the scope of the authority delegated to them by Congress and to violate the statutes under which the agencies operate and the Administrative Procedure Act.

However, a federal judge dismissed the lawsuit on Monday after determining that the organizations had not yet shown that the executive order was injuring them, concluding that “plaintiffs have failed to meet their burden of plausibly alleging or proffering facts that, if accepted as true, would establish that they have standing to sue.”

“They seek to establish ‘associational standing’ by identifying an array of regulatory actions that, they contend, the executive order will likely delay or preclude and by arguing that their members will suffer harm as a result,” the judge continued. “But, as to some of those regulatory actions, they fail to identify particular members who will be harmed. As to others, they fail to allege facts sufficient to show that the relevant agency would have issued the rule absent the executive order.”

The organizations expressed disappointment in the judge’s decision but noted that they are still reviewing it.

“President Trump’s deregulatory executive order aims to empower big business to pollute, cheat, rip off, endanger, discriminate and price gouge free from governmental restrictions,” Public Citizen President Robert Weissman said in a statement on Monday. “Unfortunately, the court concluded that Public Citizen and colleague groups did not have standing to challenge the order at this time. But our members are being hurt right now by Trump’s order, and the order is impeding our ability to advocate.”

“Trump’s executive order is a big favor to big business, and it puts workers’ lives at risk,” Chris Shelton, president of the CWA union, said in the statement. “We shouldn’t have to wait for a member to get sick, or injured, or die because of this executive order before the courts will take action. We’re disappointed in the court’s decision, but we’re not backing down from representing our members and defending workers’ lives.”

While the plaintiffs failed to establish standing to challenge the executive order at this point, that does not mean that a plaintiff or these plaintiffs will never have standing to challenge the decision, the judge noted.

“On the present record, however, the court must conclude that it lacks jurisdiction,” the judge stated.