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Legal Challenge Of The “False Choices” Executive Order

When presidents overreach, it is up to the courts to remind them that they are not above the law.

Legal Challenge Of The “False Choices” Executive Order

When presidents overreach, it is up to the courts to remind them that they are not above the law.

Angela N. / CC BY 2.0
Updated Feb. 16

On. Feb. 8, Earthjustice filed a lawsuit as co-counsel with Public Citizen, Natural Resources Defense Council, and Communications Workers of America, AFL-CIO, to strike down an Executive Order signed by President Donald Trump as an unconstitutional overreach. The Executive Order directs federal agencies to repeal two federal regulations for every new rule they issue, and requires new rules to have a net cost of $0 this fiscal year—without taking into account the value of the benefits of public protections.

Agencies must identify two regulations for elimination for every new one
Forcing Impossible Trade-offs for Clean Air and Water
President Trump issued an executive order forcing federal agencies to gut two regulations for every new safeguard they create. We’re fighting back.
What does Trump’s “False Choices” Executive Order do? In a move that seeks to hamstring federal agencies protecting our environment, health, safety, workforce, and civil rights, Trump issued an executive order forcing agencies to repeal two regulations before creating a new safeguard.
The executive order also requires that all regulations from the federal government cost regulated industries $0 in 2017. This order directs agencies to trade one regulation against another without taking into account the enormous benefits of saving lives, protecting our health, safeguarding fundamental rights, and preserving wildlife and open spaces.
Making America Polluted Again: In 1971, the EPA launched Documerica, a project to capture images of environmental problems, EPA activities and everyday life in America. Freelance photographers captured more than 15,000 photos of the heightened air and water crises of that time. These pictures show us the situation we could return to if we defang and defund the EPA:
  • October, 1973: Mary Workman holds a jar of undrinkable water that came from her well near Steubenville, Ohio. She has to transport water from a well many miles away, and she has filed a damage suit against the Hanna Coal Company.
    U.S. National Archives and Records Administration
    October, 1973: Mary Workman holds a jar of undrinkable water that came from her well near Steubenville, Ohio. She has to transport water from a well many miles away, and she has filed a damage suit against the Hanna Coal Company.
  • April, 1974: Abandoned automobiles and other debris clutter an acid water- and oil-filled five-acre pond near Ogden, Utah. The pond was cleaned up under EPA supervision to prevent possible contamination of the Great Salt Lake and a wildlife refuge nearby.
    U.S. National Archives and Records Administration
    April, 1974: Abandoned automobiles and other debris clutter an acid water- and oil-filled five-acre pond near Ogden, Utah. The pond was cleaned up under EPA supervision to prevent possible contamination of the Great Salt Lake and a wildlife refuge nearby.
  • December, 1974: Miner Wayne Gipson, 39, sits with his daughter Tabitha, 3. He has just gotten home from his job as a conveyor belt operator at a non-union mine.
    U.S. National Archives and Records Administration
    December, 1974: Miner Wayne Gipson, 39, sits with his daughter Tabitha, 3. He has just gotten home from his job as a conveyor belt operator at a non-union mine.
  • June, 1972: Chemical plants on the shores of Lake Charles in Louisiana are considered a prime source of the lake’s pollution.
    U.S. National Archives and Records Administration
    June, 1972: Chemical plants on the shores of Lake Charles in Louisiana are considered a prime source of the lake’s pollution.
  • October, 1973: Floyd Lamb holds waste ash that was shipped from Cleveland, Ohio, and dumped in some of the strip pits off of Route 33.
    U.S. National Archives and Records Administration
    October, 1973: Floyd Lamb holds waste ash that was shipped from Cleveland, Ohio, and dumped in some of the strip pits off of Route 33.
  • July, 1973: Clark Avenue and Clark Avenue Bridge in Cleveland, Ohio, are obscured by smoke from heavy industry.
    U.S. National Archives and Records Administration
    July, 1973: Clark Avenue and Clark Avenue Bridge in Cleveland, Ohio, are obscured by smoke from heavy industry.
  • August, 1972: Children play in a yard while a Tacoma smelter stack showers the area with arsenic and lead residue in Ruston, Washington.
    U.S. National Archives and Records Administration
    August, 1972: Children play in a yard while a Tacoma smelter stack showers the area with arsenic and lead residue in Ruston, Washington.
  • July, 1972: Smoke and gas from the burning of discarded automobile batteries pours into the sky near Houston, Texas.
    U.S. National Archives and Records Administration
    July, 1972: Smoke and gas from the burning of discarded automobile batteries pours into the sky near Houston, Texas.
  • July, 1972: Day becomes night when industrial smog is heavy in North Birmingham, Alabama. Sitting adjacent to the U.S. Pipe plant, this is the most heavily polluted area of the city.
    U.S. National Archives and Records Administration
    July, 1972: Day becomes night when industrial smog is heavy in North Birmingham, Alabama. Sitting adjacent to the U.S. Pipe plant, this is the most heavily polluted area of the city.
  • August, 1973: The water cooling towers of the John Amos Power Plant loom over a Poca, West Virginia, home that is on the other side of the Kanawha River. Two of the towers emit great clouds of steam.
    U.S. National Archives and Records Administration
    August, 1973: The water cooling towers of the John Amos Power Plant loom over a Poca, West Virginia, home that is on the other side of the Kanawha River. Two of the towers emit great clouds of steam.
  • June, 1973: From the National Water Quality Laboratory comes a photo of the severely deformed spine of a Jordanella fish, the result of methyl mercury present in the water where it lived.
    U.S. National Archives and Records Administration
    June, 1973: From the National Water Quality Laboratory comes a photo of the severely deformed spine of a Jordanella fish, the result of methyl mercury present in the water where it lived.
  • February, 1973: Garbage burns at an open dump on highway 112.
    U.S. National Archives and Records Administration
    February, 1973: Garbage burns at an open dump on highway 112.
Benefits matter, not just cost. A draft 2016 report to Congress from the White House OMB estimates that the annual benefits from major regulations over the past 10 years reviewed by OMB, for which agencies monetized both benefits and costs, were between $269 billion and $872 billion, while the costs were between $74 billion and $110 billion (in 2014 dollars).
Major federal regulations, 2005–2015
Benefits
Costs
Forcing federal agencies to swap basic safeguards for Americans like trading cards is unfathomable. The trading game could pit fundamental values like healthy children against another like protecting wild spaces, safe drinking water, or civil rights.
The total effect will be a gummed up federal government in which agencies designed to protect communities are instead forced to protect profits for regulated industries.
Senior Attorney, Earthjustice Peter Lehner:
“This new executive order ignores all the lives saved, productivity gained and suffering relieved by government safeguards. The only cost that matters is to the corporate bottom line—not the cost for a parent who misses work to stay home with an asthmatic kid, not the cost of medical bills for cash-strapped families and not the devastating cost of losing a loved one. This order will ensure that polluters’ pocketbooks are protected while the public pays the price.”
Earthjustice is fighting the “False Choices” Executive Order in court: When presidents overreach, it is up to the courts to remind them no one is above the law and hold them to the U.S. Constitution. We will not allow Trump to gut our system of protections and override our cherished laws in the name of a dollar.
On Feb. 8, Earthjustice filed a lawsuit as co-counsel with Public Citizen, Natural Resources Defense Council, and Communications Workers of America, AFL-CIO in the U.S. District Court for the District of Columbia to strike down the executive order as an unconstitutional overreach by President Trump. We are asking the court to invalidate the executive order and bar agencies from implementing it.
The suit names as defendants the president, the acting director of the Office of Management and Budget and the current or acting secretaries and directors of more than a dozen executive departments and agencies.
The complaint alleges that the agencies cannot lawfully comply with the president’s order because doing so would violate the statutes under which the agencies operate and the Administrative Procedure Act.