June 5, 2017

Top Boston Firm Foley Hoag Files Amicus Brief on Behalf of UCS

Case Contends President Trump’s “Two-for-One” Executive Order Is Illegal

WASHINGTON (June 5, 2017)—The Union of Concerned Scientists (UCS) filed a friend of the court (“amicus”) brief today in a case brought by EarthJustice, National Resources Defense Council, Public Citizen and the Communications Workers of America, challenging the so-called “two-for-one” executive order, which requires federal agencies to repeal two regulations for every new regulation they issue, and to ensure that the cost of new regulation is offset by the costs of the two repealed ones.

“The executive order is already having its intended effect, which is to block new regulations,” said UCS President Ken Kimmell. “EPA was poised to issue a regulation to prevent the discharge of mercury into public sewer systems, but has pulled the rule because it will have to find two rules to repeal in order to go forward.

“The executive order seems to assume, without a shred of evidence, that there are stacks of regulations sitting on a shelf that can be easily repealed without causing any harm. Just think about this: if this order had been in place, we probably wouldn’t have been able to take lead out of gasoline, or mandate seat belts, or keep toxics out of kids’ toys.” 

Seth Jaffe, a partner at Foley Hoag, a Boston-based law firm that represents scores of regulated businesses, is representing UCS pro bono.

“While Foley Hoag has frequently been supportive of efforts at regulatory reform, this executive order is not about regulatory reform,” said Jaffe. “It is instead a transparent attempt to prevent agencies from implementing statutes that Congress passed in order to protect the American people from a variety of public health and environmental harms.”

The UCS brief lays out the numerous ways the executive order is illegal. In a nutshell, the executive order violates federal law by requiring agencies to focus on the costs and ignore the benefits of new regulations, per the UCS brief. For example, according to the brief: “To simplify, if a company has to spend $100 in manufacturing a washer-dryer in order to add energy-efficient controls, and those controls save the purchaser $1,000 in energy costs over the life of the appliance, the OMB sees that regulation as “costing” $100, and the Department of Energy would have to cut a regulation that costs $100 to offset it, regardless of the $1,000 in energy savings, which are not to be considered.”

A court hearing on the executive order will likely be held sometime this summer and a decision could be issued as early as the fall.

To read Kimmell’s blog on the brief, click here.

The Union of Concerned Scientists puts rigorous, independent science to work to solve our planet's most pressing problems. Joining with people across the country, we combine technical analysis and effective advocacy to create innovative, practical solutions for a healthy, safe, and sustainable future.