Due to NEPA, Trump's 'One-In, Two-Out' Order Does Not Apply to Environmentally Protective Regulations

by Joel Mintz

March 11, 2019

This post is adapted from a recent law review article published in the University of Missouri—Kansas City Law Review.

In myriad ways – from speeches, favoritism toward polluting industries, and ill-advised regulatory rollbacks – the Trump administration has consistently exhibited unrestrained antagonism toward regulatory safeguards for health, safety, and the environment. One of the earliest manifestations of that antagonism – and arguably one of the most pernicious – was an executive order signed by the president only ten days after his term began.

Executive Order 13771, hereafter referred to as the "one-in, two-out" order, contained three directives to all federal departments and agencies. First, it provided that "unless prohibited by law, whenever an executive department or agency…publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed." Second, for fiscal year 2017, the president's order directed agency heads to ensure that the total incremental cost to regulated parties of all new final regulations be zero or less. And third, Executive Order 13771 decreed that any new incremental costs to the regulated community associated with new regulations be offset by eliminating existing costs associated with at least two prior regulations.

The president's one-in, two-out order made no attempt to account for, or even acknowledge, the public benefits associated with regulations to be repealed. Presumably, those benefits were not relevant to the regulatory revocations called for in the order. However, in a concluding subsection, the order stated that it is to be implemented "consistent with applicable law."

Executive Order 13771 failed to define the term "applicable law," nor did the order clarify the meaning of "unless prohibited by law." One such "applicable law" is subsection 102(1) of the National Environmental Policy Act (NEPA) – the so-called "interpretation mandate" of that law – which clearly prohibits the application of the one-in, two-out order's directives to existing and new regulations intended to protect the nation's environment.

NEPA's interpretation mandate states that "[t]he Congress authorizes and directs that, to the fullest extent possible[,] the policies, regulations and public laws of the United States shall be administered in accordance with the policies set forth in this [statute]." Those policies are both broadly stated and environmentally protective. They state that "[t]he purposes of this Act are: [t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment; [and] to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." NEPA further declares that it is the "continuing policy of the Federal Government…to use all practicable means and measures…in a manner calculated to promote the general welfare, [and] to create and maintain conditions under which man and nature can exist in productive harmony…"

Subsection 102(1) of NEPA is unmistakably mandatory. The provision deliberately includes the verb "shall," as opposed to "may," to prescribe what must occur. This phraseology traditionally denotes an intended legislative command, rather than a mere aspiration. In addition, without including any qualifying language, the first sentence of Section 102 of the act indicates that Congress "authorizes and directs" the kind of legal construction and administration that the provision contemplates – another unambiguous indication that Congress intended the interpretation mandate to be nondiscretionary in its application.

Moreover, NEPA's environmentally protective policies are, by the statute's express terms, applicable to all "policies, regulations, and public laws of the United States." Many of our nation's environmental statutes – including the Toxic Substances Control Act, the Clean Air Act, the Clean Water Act, and the Endangered Species Act, among others – authorize the promulgation of regulations that obviously further NEPA's policies of eliminating environmental damage, protecting human health, and fostering conditions under which human beings and nature can exist in harmony. The elimination of such regulations under color of Executive Order 13771, without consideration of the public benefits those regulations provide, thus violates NEPA subsection 102(1) and all of the environmental protection regulations authorized and directed by Congress in our federal environmental statutes.

President Trump's one-in, two-out executive order has been challenged in the federal courts in a lawsuit that is currently focused on the question of whether the nonprofit plaintiffs have standing to sue. Here's hoping that the courts ultimately reach the merits of the plantiffs' suit; and that, when they do, they will conclude that the policy and terms of Executive Order 13771 are in direct conflict with the NEPA interpretation mandate and the sensible public policies the law undoubtedly requires the executive branch to implement.

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Joel A. Mintz is a tenured full professor at Nova Southeastern University Law Center in Fort Lauderdale, Florida.

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