Standing Arguments in Litigation Challenging Trump’s Regulatory “Two-for-One” EO (Part 2)

by Bridget C.E. Dooling — Monday, Oct. 1, 2018@BridgetDooling

This post picks up where my last post left off, recapping aspects of the initial memorandum opinion and order in Public Citizen, Inc. et al v. Trump (D.D.C.). This is the case challenging President Trump’s regulatory “two-for-one” executive order (EO 13771).

In the course of its discussion on associational standing, the court considers whether the plaintiffs successfully established the causal chain between EO 13771 and subsequent, foregone regulatory activity. Although it’s part of the jurisdictional discussion, these questions take us meaningfully closer to critical questions in this case: was there delay and did EO 13771 cause it?

How Can a Plaintiff Establish that the Government Intended To Issue a Rule?

In its opinion, the court cautions that “in the absence of clear markers . . . the Court should avoid speculating” about the decisions of government agencies. Public Citizen, Inc. et al v. Trump, Civ. Action No. 17-253, slip. op. at 20. Clear markers, it says, include “proposed rules or agency pronouncements.” The court finds such “clear markers” for only some of the rules.

Unified Agenda as Evidence of Intent

The first is an infectious diseases rule from the Occupational Safety and Health Administration (OSHA). The opinion notes a prior OSHA request for information, public meetings, and OSHA’s statutory review of the rule. It also notes an entry in the Unified Agenda from spring 2016 targeting release of a proposed rule in March 2017. The Obama Administration bumped that out to October 2017 in the fall 2016 agenda, and the Trump Administration placed it into the “long-term actions” category, which does not have an associated release date, in the spring 2017 agenda. The court interprets these actions as records supporting the allegation that OSHA intended to issue this rule, presumably as “agency pronouncements.” The court notes that “the decision whether to issue an NPRM . . . is often policy-laden and, in that respect, beyond the judicial ken.” Slip. op. at 23. The court then goes on to “assume (without deciding) for present purposes that the [rule] would have been issued but for the Executive Order.” Id. (parenthetical in original).

As an assumption, this doesn’t seem overly problematic. I would have concerns if this slipped from the basis of an assumption to the basis of an alleged fact, particularly about when an agency would have taken an action, because of how frequently these dates change. The unified agenda is a forward-looking document that the agencies update every 6 months to account for new information and priorities. Dates shift. There are also rules that spend years on the agenda with little, if any, progress, being bumped out 6 months at a time, so even if that adds up to evidence of “intent” it might fail as a source of information for what “would have happened” absent a particular fact.

Issuance of a Proposed Rule as Evidence of Intent

Turning to a different set of rules, the court says that issuance of an NPRM “sheds significant light” on whether an agency intended to issue a final rule. Id. at 24. Recognizing that an agency is not bound to issue a final rule after a proposed rule, the court notes that if an agency seeks to withdraw a proposed rule from its own consideration it must provide a “reasoned explanation” for doing so. Id. at 24 (citing Williams National Gas, citation omitted). This leads the court to find “at least a plausible basis to conclude” that the agencies intended to finalize their proposals. Id.

My experience is that many proposed rules do get finalized, but not all. Sometimes agencies go through the process of withdrawing them, and sometimes the proposals just linger. That topic would be a good candidate for additional empirical work. (Let me know if someone has already done this, and I’ll happily devour that paper & update this post.)

Overall, at this stage of litigation, when the plaintiffs have the benefit of all reasonable inferences, I understand the court’s choices. I would be concerned, though, to see this reasoning creep into the merits argument without additional support, because of the number of assumptions being made about the true meaning of routine government actions.

As you can see, the court’s opinion really gets into the weeds of administrative law practice at the agencies, which is why I think it’s worth your time. I’ll look at how the court handles causality (i.e., were the delays caused by the EO?) in my next post.

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