Michael Burger and Jessica Wentz
Last week, the Office of Information and Regulatory Affairs (OIRA) published final guidance on implementing President Trump’s Executive Order on Reducing Regulation and Controlling Regulatory Costs, which directs all agencies to control regulatory costs by: (1) ensuring that the “incremental costs” of all new regulations that are finalized this year, including repealed regulations, are no greater than zero, and (2) identifying two regulations to repeal for every new regulation that is proposed. As we previously wrote, that order conflicts with existing legal mandates and undermines congressional authority. (See here and here.) In particular, the order places federal agencies in an untenable position by directing them to make decisions about whether to issue or repeal regulations based on factors that fall outside of the scope of the statutes they are implementing. As noted by the Supreme Court, regulatory decisions cannot rest on “reasoning divorced from the statutory text.”
The guidance issued last week solidifies and reinforces the fundamental legal problems with the original order. With respect to the 2-for-1 directive, the guidance clarifies that agencies should do more than simply identify two regulations for potential repeal for every one regulation issued – rather, it specifies that agencies must actually issue two “deregulatory actions” for each “regulatory action” undertaken. With respect to the zero-incremental-costs directive, the guidance confirms that regulatory benefits such as public health benefits and energy efficiency savings should not be accounted for when measuring the “incremental costs” of regulatory actions.