Case 1:17-cv-00253-RDM Document 1 Filed 02/08/17 Page 1 of 49

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, INC., 1600 20th Street NW Washington, DC 20009,
NATURAL RESOURCES DEFENSE COUNCIL, INC.
40 W. 20th Street, 11th floor New York, NY 10011,
and
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
501 3rd Street NW Washington, DC 20001,
v.
DONALD TRUMP, President of the United States,
1600 Pennsylvania Avenue NW Washington, DC 20500,
UNITED STATES OF AMERICA,
MARK SANDY, Acting Director of the Office of Management and Budget,
725 17th Street NW Washington, DC 20503,
GRACE BOCHENEK, Acting Secretary of Energy, U.S. Department of Energy,
1000 Independence Avenue SW Washington DC 20585,
ELAINE L. CHAO, Secretary of Transportation, U.S. Department of Transportation,
1200 New Jersey Avenue SE Washington, DC 20590,
JACK DANIELSON, Executive Director, National Highway Traffic Safety

Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:17-cv-00253-RDM Document 1 Filed 02/08/17 Page 2 of 49
Administration, 1200 New Jersey Avenue SE Washington, DC 20590,
DOROTHY DOUGHERTY, Deputy Assistant Secretary of Labor, U.S. Department of Labor,
200 Constitution Avenue NW Washington, DC 20210,
EDWARD HUGLER, Acting Secretary of Labor, U.S. Department of Labor,
200 Constitution Avenue NW Washington, DC 20210,
KEVIN HAUGRUD, Acting Secretary of the Interior, U.S. Department of the Interior,
1849 C Street NW Washington, DC 20240,
DAPHNE Y. JEFFERSON, Deputy Administrator, Federal Motor Carrier Safety Administration,
1200 New Jersey Avenue SE Washington, DC 20590
JIM KURTH, Acting Director, U.S. Fish and Wildlife Service,
5275 Leesburg Pike Falls Church, VA 22041,
CATHERINE McCABE, Acting Administrator, U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue NW Washington, DC 20460,
HOWARD McMILLAN, Executive Director, Pipeline and Hazardous Materials Safety Administration,
1200 New Jersey Avenue SE Washington, DC 20590,
SAMUEL D. RAUCH III, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service,
1315 East-West Highway
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Silver Spring, MD 20910, PATRICIA W. SILVEY, Deputy Assistant Secretary for Operations, Mine Safety and Health Administration,
201 12th Street South, Suite 401 Arlington, VA 22202, and PATRICK WARREN, Executive Director, Federal Railroad Administration, 1200 New Jersey Avenue SE Washington, DC 20590.
INTRODUCTION 1. This action seeks declaratory and injunctive relief with respect to an Executive Order on “Reducing Regulation and Controlling Regulatory Costs” issued by President Donald Trump on January 30, 2017, and Interim Guidance issued by the Office of Management and Budget (OMB) on February 2, 2017, regarding implementation of the Executive Order. The Executive Order exceeds President Trump’s constitutional authority, violates his duty under the Take Care Clause of the Constitution, and directs federal agencies to engage in unlawful actions that will harm countless Americans, including plaintiffs’ members. 2. The January 30, 2017, Executive Order states, among other things, that an agency may issue a new regulation only if it rescinds at least two existing regulations in order to offset the costs of the new regulation. It directs agencies, among other things, (1) to identify at least two existing regulations to repeal for every new regulation proposed or issued, and (2) to promulgate regulations during fiscal year 2017 that, together with repealed regulations, have combined incremental costs of $0 or less, regardless of the benefits. The total incremental cost limit for future fiscal years is to be identified later by the Director of OMB.
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3. The Executive Order will block or force the repeal of regulations needed to protect health, safety, and the environment, across a broad range of topics—from automobile safety, to occupational health, to air pollution, to endangered species.
4. The Executive Order mandates that, when implementing the command to repeal at least two rules for each new one, agencies must focus on costs while ignoring benefits. Indeed, the Executive Order directs agencies to disregard the benefits of new and existing rules— including benefits to consumers, to workers, to people exposed to pollution, and to the economy—even when the benefits far exceed costs. The Executive Order’s direction to federal agencies to zero out costs to regulated industries, while entirely ignoring benefits to the Americans whom Congress enacted these statutes to protect, will force agencies to take regulatory actions that harm the people of this nation.
5. To repeal two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs and without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with law, for at least three reasons. First, no governing statute authorizes any agency to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs (for fiscal year 2017, a limit of $0) that regulations may impose on regulated entities or the economy. Second, the Executive Order forces agencies to repeal regulations that they have already determined, through notice-and-comment rulemaking, advance the purposes of the underlying statutes, and forces the agencies to do so for the sole purpose of eliminating costs that the underlying statutes do not direct be eliminated. Third, no governing statute authorizes an agency to base its actions on a decisionmaking criterion of zero net cost across multiple regulations.
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6. Rulemaking in compliance with the Executive Order’s “1-in, 2-out” requirement cannot be undertaken without violating the statutes from which the agencies derive their rulemaking authority and the Administrative Procedure Act (APA).
7. The implementation of governing statutes, passed by Congress and signed into law by previous Presidents, will slow to a halt under the Executive Order. In addition to complying with the substantive requirements of those laws and the procedural requirements of the APA, agencies, to issue a new proposed or final rule, will be required to undertake new cost assessments both of the new proposed or final rule and at least two existing rules—although the new rule and the existing rules need not have any substantive relationship to one another and, with approval from OMB, need not even be issued by the same agency. Moreover, for each new regulation that an agency promulgates, it must undertake at least two additional rulemakings to repeal existing regulations.
8. As the OMB’s Interim Guidance makes clear, under the Executive Order, a federal motor vehicle safety standard issued under the Motor Vehicle Safety Act (and at least one other rule) will need to be repealed to enable one other motor vehicle safety standard. Or an occupational health standard issued under the Occupational Health and Safety Act (and at least one other rule) will need to be repealed to enable an employee overtime regulation issued under the Fair Labor Standards Act. Or an occupational health standard (and one other rule) will need to be traded in for a motor vehicle safety standard. And the netting out of costs is divorced from any consideration of the benefits of these protections. This approach is not only irrational, it flies in the face of every one of these and similar statutes.
9. In seeking to impose rulemaking requirements beyond and in conflict with the requirements of the APA and the statutes from which the federal agencies derive their
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rulemaking authority, the Executive Order exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3.
10. The Executive Order is unlawful on its face. Implementation and enforcement of the Executive Order should be enjoined.
JURISDICTION AND VENUE 11. This Court has jurisdiction under 28 U.S.C. § 1331. 12. Venue is proper in this district because plaintiff Public Citizen resides and has its principal place of business in this judicial district, and because a substantial part of the acts or omissions giving rise to the claim occurred in this judicial district. 28 U.S.C. § 1391(c)(2), (e)(1).
PARTIES 13. Plaintiff Public Citizen, Inc., is a national, non-profit consumer advocacy organization with more than 400,000 members and supporters nationwide. Public Citizen engages in research, advocacy, media activity, and litigation related to advancing health and safety, consumer protection, and the environment, among other things. Public Citizens’ members, like most Americans, are the beneficiaries of consumer protection, public health, environmental, and other statutes that Congress enacted to serve the public interest and protect the public. Public Citizen’s members rely on Public Citizen to petition the government on their behalf, to advocate for strong protections with respect to auto safety, drug and medical device safety, workplace safety, consumer finance, and the environment, among other things. On behalf of its members, and in furtherance of its mission and the interests of its members, Public Citizen petitions federal agencies for rulemaking and comments on proposed regulations issued by federal agencies, and it publishes reports, writes op-eds, and litigates in support of its members’
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interests in health and safety, consumer protection, and environmental regulation. The Executive Order will adversely affect Public Citizen’s members by deterring new regulations to implement laws protecting their interests, and by forcing the repeal of existing regulations that already do so. The Executive Order will also adversely affect Public Citizen’s ability to advocate on its members’ behalf by forcing Public Citizen to choose between advocating for new regulations at the cost of potential loss of other beneficial regulations and refraining from advocating for necessary new public protections. The Executive Order will also injure Public Citizen and its members by causing agencies to delay, not issue, or repeal regulations that protect their concrete interests in order to comply with the Executive Order.
14. Plaintiff Natural Resources Defense Council, Inc. (NRDC) is a non-profit environmental and public health organization with hundreds of thousands of members nationwide. NRDC members, like most Americans, benefit from statutes that Congress has enacted to protect health and the environment, and these members rely on NRDC to represent their interests in advocating for such protections. For example, NRDC members are exposed to and injured by exposure to pollution regulated under the Clean Air Act and exposed to and injured by exposure to toxic chemicals regulated under the Toxic Substances Control Act; such exposures increase NRDC members’ risk of injury to their health. NRDC members live and/or work near enough to rail lines used to convey oil and other dangerous substances that an explosion involving such cargo would threaten their health and property. NRDC members study, observe, and enjoy species protected under, and that meet the standards for protection under, the Endangered Species Act. And NRDC members use residential conventional cooking and other appliances, increased efficiency of which would reduce these members’ utility bills and while also reducing air pollution that causes them health, recreational, aesthetic, and economic harms.
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The Executive Order threatens NRDC’s members’ health, scientific, recreational, aesthetic, and other interests by delaying and deterring the adoption of new regulations to implement laws that protect these members’ interests, and by forcing the repeal of existing regulations that already do so. On behalf of its members, NRDC engages in research, advocacy, public education, and litigation to protect public health and the environment. As part of its work, NRDC petitions federal agencies for rulemaking and comments on proposed regulations issued by federal agencies. The Executive Order threatens this petitioning activity and NRDC’s participation in the rulemaking process because, under the Executive Order, successful advocacy in favor of new regulations will result in repeal of other important health or environmental regulations. The Executive Order thus chills NRDC’s activity, to the detriment of its mission and its members.
15. The Communications Workers of America, AFL-CIO (CWA), is an international labor union representing 700,000 workers in the telecommunications, media, manufacturing, airline, and health care industries and in a wide variety of public sector positions in the United States, Canada and Puerto Rico. In representing such workers, CWA seeks to improve their working conditions, including their health and safety at work, through collective bargaining and public policy advocacy. CWA frequently engages in the federal agency rulemaking process under the APA, advocating for rules that improve workers’ wages, hours, and working conditions. The Executive Order threatens this First Amendment-protected petitioning activity and participation in the rulemaking process because, under the Executive Order, successful advocacy in favor of a particular regulation will result in repeal of other important regulations protecting workers’ wages, hours, and working conditions. Workplace hazards currently slated for the federal regulatory process include matters within the scope of federal safety and health laws and that directly affect the health and safety of CWA-represented workers, such as
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trichloroethylene exposure for manufacturing workers and infectious disease exposure for nurses. Although in these examples CWA would press for strong worker protections that would save lives and are feasible, the Executive Order imposes a disturbing Sophie’s Choice by insisting that other to-be-determined health and safety protections for one set of workers must be repealed in exchange for health and safety protections for another set of workers. The Executive Order thus chills CWA’s activity, to the detriment of its mission and its members. The Executive Order will also injure CWA and its members by causing agencies to not issue, delay, or repeal regulations that protect the members’ health and safety at work, or other workplace rights, in order to comply with the Executive Order.
16. Defendant Donald J. Trump is the President of the United States and issued the Executive Order challenged in this complaint. Plaintiffs sue President Trump in his official capacity.
17. Defendant Mark Sandy is the Acting Director of OMB and OMB’s highestranking official. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Acting Administrator Sandy in his official capacity. OMB is an agency within the meaning of the APA.
18. Defendant Grace Bochenek is Acting Secretary of Energy for the Department of Energy and that agency’s highest ranking official. She is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Acting Secretary Bochenek in her official capacity. The Department of Energy is an agency within the meaning of the APA.
19. Defendant Elaine L. Chao is the Secretary of Transportation and charged with the supervision and management of all decisions and actions within the U.S. Department of
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Transportation. She is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Secretary Chao in her official capacity. The Department of Transportation is an agency within the meaning of the APA.
20. Defendant Jack Danielson is the Executive Director, National Highway Traffic Safety Administration (NHTSA), and that agency’s highest-ranking official. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Executive Director Danielson in his official capacity. NHTSA is an agency within the meaning of the APA.
21. Defendant Dorothy Dougherty, Deputy Assistant Secretary of Labor for Occupational Safety and Health (OSHA), is that agency’s highest-ranking official. She is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Deputy Assistant Secretary in her official capacity. OSHA is an agency within the meaning of the APA.
22. Defendant Kevin “Jack” Haugrud is Acting Secretary of the Interior and the highest ranking officer in the Department of the Interior. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Acting Secretary Haugrud in his official capacity. The Department of the Interior is an agency within the meaning of the APA.
23. Defendant Edward Hugler is the Acting Secretary of Labor, U.S. Department of Labor, and the highest ranking officer in the Department of Labor. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Acting Secretary Hugler in his official capacity. The Department of Labor is an agency within the meaning of the APA.
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24. Defendant Daphne Y. Jefferson is the Deputy Administrator, Federal Motor Carrier Safety Administration (FMCSA), and the agency’s highest-ranking official. She is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Acting Administrator Jefferson in her official capacity. FMCSA is an agency within the meaning of the APA.
25. Defendant Jim Kurth, is the Acting Director, U.S. Fish and Wildlife Service, and the agency’s highest-ranking official. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Acting Director Kurth in his official capacity. The Fish and Wildlife Service is an agency within the meaning of the APA.
26. Defendant Catherine McCabe, Acting Administrator of the Environmental Protection Agency (EPA), is the agency’s highest-ranking official. She is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Acting Administrator McCabe in her official capacity. EPA is an agency within the meaning of the Executive Order and the APA.
27. Defendant Howard McMillan is the Executive Director of the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the agency’s highest-ranking official. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Executive Director McMillan in his official capacity. PHMSA is an agency within the meaning of the APA
28. Defendant Samuel D. Rauch III is the Acting Assistant Administrator for Fisheries, National Marine Fisheries Service (NMFS) and the agency’s highest-ranking official. He is charged with the supervision and management of all decisions and actions of that agency.
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Plaintiffs sue Acting Assistant Administrator Rauch in his official capacity. NMFS is an agency within the meaning of the APA.
29. Defendant Patricia W. Silvey is the Deputy Assistant Secretary for Operations, Mine Safety and Health Administration (MSHA) and the agency’s highest-ranking official. She is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Deputy Assistant Secretary Silvey in her official capacity. MSHA is an agency within the meaning of the APA.
30. Defendant Patrick Warren is the Executive Director of the Federal Railroad Administration and the agency’s highest-ranking official. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Executive Director Warren in his official capacity. The Federal Railroad Administration is an agency within the meaning of the APA.
BACKGROUND The Executive Order
31. On January 30, 2017, defendant President Trump signed Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs.” 82 Fed. Reg. 9339 (2017).
32. The Executive Order directs that, “[u]nless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.” Sec. 2(a).
33. The Executive Order further directs that, for the current fiscal year, “the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed
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regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of [OMB].” Sec. 2(b).
34. In furtherance of the requirement quoted in paragraph 32, above, the Executive Order further directs that “any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law.” Sec. 2(c).
35. The Executive Order further directs that, for fiscal year 2018 and subsequent years, “the head of each agency shall identify, for each regulation that increases incremental cost, the offsetting regulations described in paragraph 34, and provide the agency’s best approximation of the total costs or savings associated with each new regulation or repealed regulation.” Sec. 3(a).
36. The Executive Order further states that, “[d]uring the Presidential budget process, the Director [of OMB] shall identify to agencies a total amount of incremental costs that will be allowed for each agency in issuing new regulations and repealing regulations for the next fiscal year. No regulations exceeding the agency’s total incremental cost allowance will be permitted in that fiscal year, unless required by law or approved in writing by the Director. The total incremental cost allowance may allow an increase or require a reduction in total regulatory cost.” Sec. 3(d).
37. The Executive Order directs agencies to offset costs of new regulations without consideration of the benefits associated with that rule or the existing rules designated for repeal, or of whether, taking into account costs and benefits, those rules have net benefits.
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38. A true and correct copy of the Executive Order is appended as Exhibit A. 39. The Executive Order instructs the Director of OMB to “provide the heads of agencies with guidance on the implementation of” the requirements of section 2, described in paragraphs 32-34, above. OMB’s Interim Guidance 40. On February 2, 2017, OMB issued “Interim Guidance Implementing Section 2 of the Executive Order,” which addresses regulations to be issued in fiscal year 2017. The Interim Guidance states that guidance addressing application of the Executive Order for fiscal years 2018 and beyond will be issued at a later date. 41. The Interim Guidance states that the Executive Order applies “only to those significant regulatory actions,” as defined in Executive Order 12866, issued after noon on January 20, 2017, including final regulations for which a proposed rule was issued before that date. Executive Order 12866 defines “significant regulatory actions” to mean, among other things, regulatory actions that have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, jobs, the environment, public health or safety, or State, local, or tribal governments or communities, or that raise novel legal or policy issues. 42. The Interim Guidance further states that “[p]urely deregulatory actions that confer only savings to all affected parties generally will not trigger” the Executive Order’s requirement that the agency identify two existing rules for repeal, but that “if such deregulatory actions impose costs on individuals or entities, agencies will need to offset those costs.” 43. The Interim Guidance does not, however, allow an agency to treat consumer cost savings or other benefits of new or repealed rules as offsets to costs incurred by regulated entities. For example, the Guidance states that energy cost savings to consumers from rules
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requiring appliance manufacturers to make more energy efficient equipment “would not be counted as offset to costs” incurred by those manufacturers.
44. The Interim Guidance states that, in general, agencies cannot base the estimated cost savings of repealing an existing rule on the regulatory impact analysis (RIA) produced when the rule was issued. This direction will require agencies to undertake new cost estimates for each existing rule considered for elimination.
45. The Interim Guidance further states that agencies should not count the “sunk” (or already incurred) costs of repealed rules, but must instead count only those costs that would be incurred after the effective date of the repeal. Because often the bulk of the cost of existing rules (such as the cost of new equipment purchases to meet pollution standards) will already have been incurred, this requirement will greatly magnify the number of rules that need to be repealed to permit new rules to be promulgated consistent with the Executive Order.
46. The Interim Guidance states that cost savings from repeal of a rule by one component of an agency may be used to offset the costs of a rule issued by another component of that agency. It further states that cost savings can be transferred between agencies if OMB approves the transfer.
47. A true and correct copy of the Interim Guidance is appended as Exhibit B. Administrative Procedure Act
48. Under the APA, an agency must publish a notice of proposed rulemaking in the Federal Register and solicit public comment before adopting, modifying, or repealing a rule. 5 U.S.C. § 553. The APA defines “rule making” as the “agency process for formulating, amending, or repealing a rule.” Id. § 551(5). The APA defines “rule” to include “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement,
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interpret, or prescribe law or policy.” Id. § 551(4). The Executive Order (Sec. 4) largely tracks this definition of a rule.
49. In the APA, Congress directed federal agencies to undertake reasoned and evidence-based decision-making when exercising their delegated authority to promulgate rules. An agency must consider the factors that Congress has directed it to consider and cannot “rel[y] on factors which Congress has not intended it to consider.” Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983).
50. Under the APA, final agency action is judicially reviewable. A reviewing court shall “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
51. The governing regulatory statutes enacted by Congress do not authorize federal agencies to consider the costs of other regulations issued in the same fiscal year or of regulations issued in prior years when determining whether to promulgate new or repeal existing regulations. Those statutes do not authorize federal agencies to condition issuance of new regulations on repealing existing regulations to offset the costs of the new ones. Application of the Executive Order
52. In promulgating a new rule (including a rule repealing an existing rule), each agency must comply with the substantive and procedural requirements of the APA and the agency’s governing statute. In a rulemaking, an agency may make decision based on costs only to the extent and in the manner Congress has set forth in the statute delegating rulemaking authority to the agency.
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53. The agencies’ governing statutes do not authorize agencies to repeal an existing regulation, weaken a new regulation, or forgo or delay a new regulation that it would otherwise issue, for the purpose of offsetting costs of new regulations.
54. The Executive Order, by requiring that agencies promulgating new regulations take into account the cost of the new regulation in relation to costs of existing regulations that need to be repealed to comply with the Executive Order, as well as the costs of other regulations issued and repealed in the same fiscal year, requires the agencies to consider factors not specified in or inconsistent with their governing statutes, and to repeal, weaken, or delay regulations for an impermissible purpose.
55. Agencies that comply with the Executive Order in their decisions regarding whether to propose, issue, or repeal regulations are acting in violation of their governing statutes. Decisionmaking based on the factors set forth in the Executive Order also constitutes action that is arbitrary and capricious, contrary to law, and in excess of agency authority, in violation of the APA. The adverse impact of the Executive Order is particularly egregious when the new or repealed regulations are designed to address health, safety, or environmental concerns.
56. By instructing the agencies to consider factors and take deregulatory action for reasons beyond those authorized by the agencies’ governing statutes, the Executive Order exceeds presidential authority and usurps Congress’s legislative authority. And by directing agencies to violate the law or rendering them unable to regulate as required by the law, the President, through the Executive Order, is violating his obligation to take care that the law shall be faithfully executed.
57. The Executive Order states that it shall be “implemented consistent with applicable law,” Sec. 5(b); sections 2 and 3 include similar language. That language appears to
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mean that the agencies must use notice-and-comment rulemaking to repeal offsetting regulations and that they must comply with existing statutory and judicial deadlines for taking particular regulatory actions. Thus, that language does not render the Executive Order or its implementation lawful. If, however, the language were interpreted to mean that the agencies may disregard the Executive Order when applicable statutes do not authorize conditioning regulation on the repeal of regulations with offsetting costs, that language would render the Executive Order without effect.
58. The Executive Order adversely affects agencies’ ability to issue any significant regulations that are intended to benefit plaintiffs and their members. The following examples demonstrate the adverse effects of the Executive Order on plaintiffs and their members, as well as how the Executive Order directs agencies to act unlawfully and why it is unconstitutional.
A. Motor Vehicle Safety Act and Motor Carrier Safety Act 59. The Motor Vehicle Safety Act was enacted “to reduce traffic accidents and deaths and injuries resulting from traffic accidents.” 49 U.S.C. § 30101. The Act mandates motor vehicle safety standards that are practicable, meet the need for motor vehicle safety, and are stated in objective terms. Id. § 30111(a). “Motor vehicle safety standard” means a minimum performance standard for motor vehicles or motor vehicle equipment. When prescribing such standards, the National Highway Traffic Safety Administration (NHTSA) must consider all relevant, available motor vehicle safety information, and whether a proposed standard is reasonable, practicable, and appropriate for the types of motor vehicles or motor vehicle equipment for which it is prescribed and the extent to which the standard will further the statutory purpose of reducing traffic accidents and associated deaths. Id. §§ 30111(a), (b).
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60. The Motor Carrier Safety Acts of 1935 and 1984 require the Federal Motor Carrier Safety Administration (FMCSA) to “prescribe requirements for … safety of operation and equipment of, a motor carrier; and … standards of equipment of, a motor private carrier, when needed to promote safety of operation.” 49 U.S.C. § 31502(b). Safety standards must, “[a]t a minimum … ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely …; (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators; (5) an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial motor vehicle in violation of” various laws and regulations. Id. § 31136(a).
61. The Executive Order, by requiring that safety regulations issued under the Safety Acts take into account cost—the cost of a new safety standard, the cost in relation to the costs of existing standards to be repealed, and the costs of any other standards issued or repealed in that fiscal year—requires the agencies to add a consideration not among the considerations specified in the Safety Acts.
62. For example, pursuant to their authority under the two Safety Acts, and in light of the numerous studies concluding that the severity of a crash increases with increased travel speed, NHTSA and FMCSA in September 2016 proposed to require new multipurpose passenger vehicles, trucks, buses and school bus vehicles with a gross vehicle weight rating of more than 26,000 pounds to be equipped with speed limiting devices, and to require motor carriers operating such vehicles in interstate commerce to maintain functional speed limiting devices set
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at not more than the maximum specified speed for the service life of the vehicle. 81 Fed. Reg. 61942 (2016). The comment period ended in December 2016. See 81 Fed. Reg. 78103 (2016). NHTSA and FMCSA estimate net benefits of $500 million to $5 billion annually from the rule, including fuel savings and the prevention of thousands of traffic injuries and deaths. 81 Fed. Reg. at 61945, 61961-64. They estimate that the rule will impose minimal cost on vehicle manufacturers related to the installation of speed limiters, but they estimate a social cost from lower travel speeds of $200 million to $1.5 billion annually. Id. Therefore, despite the proposed rule’s huge net benefits to society, including to plaintiffs’ members, the rule will fall within the scope of the Executive Order and cannot be finalized under that Executive Order unless two other regulations that impose equivalent or greater costs are repealed.
63. In another example, NHTSA in January 2017 proposed to require all new light vehicles to include crash-avoidance technologies known as vehicle-to-vehicle (V2V) communications, such that they will send information about a vehicle’s speed, heading, brake status, and other data to surrounding vehicles, and receive the same information from other vehicles. 82 Fed. Reg. 3854, 3855-57 (2017). NHTSA expects V2V technology to identify and prevent potential crashes, and to advance development of vehicle automation. Id. The comment period will end April 12, 2017. Id. at 3858. If finalized, the safety standard will be phased in over time, with costs that change over that period. Total estimated vehicle costs per year range from $2 to $5 billion ($135-$300 per vehicle). Id. at 3857. On the benefit side, the technology “could potentially prevent 424,901–594,569 crashes and save 955-1,321 lives [annually] when fully deployed throughout the light-duty vehicle fleet. Converting these and the accompanying reductions in injuries and property damage to monetary values, [NHTSA] estimate[s] that in 2051 the proposed rule could reduce the costs resulting from motor vehicle crashes by $53 to $71
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billion (expressed in today’s dollars).” Id. at 3858. NHTSA estimates that the safety standard will have net positive benefits within 3-5 years. Id. at 3982-4000. Despite the huge net benefits to society, including benefits to plaintiffs’ members, NHTSA will not be able to promulgate this safety standard without repealing two other regulations that impose equivalent or greater costs.
64. The Executive Order conditions NHTSA’s and FMCSA’s promulgation of these standards on the agencies’ ability to offset the costs of these safety regulations by repealing “at least two prior regulations,” Executive Order sec. 2(c), without taking into account the net benefits either of the new standards or the existing standards. To promulgate the speed-limitingdevice regulation, the agencies would have to repeal regulations with costs of $200 million to $1.5 billion annually, without regard to the net benefits of the new regulation and the repealed regulations. To promulgate the V2V rule, NHTSA would have to repeal regulations with annual costs of $2 billion to $5 billion, again without regard to the net benefits of both the new and repealed regulations.
65. The Executive Order requires the agencies when engaged in rulemaking to make decisions based on a impermissible and arbitrary choice—whether to issue a new standard at the cost of the loss of benefits of two existing standards. To repeal two vehicle safety standards for the purpose of adopting one is arbitrary, capricious, an abuse of discretion, and contrary to the Safety Acts.
66. By instructing the agencies to repeal two standards for the purpose of adopting one, the Executive Order adds considerations inconsistent with the Safety Acts and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
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67. Public Citizen advocates for strong health and safety regulation by NHTSA and FMCSA, petitions NHTSA and FMCSA to issue new rules to protect health and safety, and comments on proposed NHTSA and FMCSA rules to urge NHTSA and FMCSA to craft rules that best protect consumers. Public Citizen’s members rely on Public Citizen to represent their interests with respect to vehicle safety. By requiring NHTSA and FMCSA to eliminate two rules for the purpose of issuing one new rule, and to consider the net costs of other regulations previously promulgated by NHTSA and FMCSA, the Executive Order requires the agency to reduce existing protections, including vehicle safety protections, to the detriment of Public Citizen and its members.
B. Occupational Safety and Health Act 68. The Occupational Safety and Health Act (OSH Act) aims “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. § 651(b). It reflects Congress’s finding that “personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.” Id. § 651(a). 69. The OSH Act requires an occupational health standard involving “toxic materials or harmful physical agents” to “adequately assur[e], to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.” Id. § 655(b)(5). After a significant risk is identified, OSHA must promulgate a standard that will eliminate that risk, unless doing so is infeasible in a particular industry. AFL-CIO v. OSHA, 965 F.2d 962, 973 (11th Cir. 1992). OSHA has a “duty to
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keep adding [protective] measures so long as they afford benefit and are feasible, up to the point where [it] no longer finds significant risk.” Building & Constr. Trades Dep’t v. Brock, 838 F.2d 1258, 1269 (D.C. Cir. 1988).
70. Under the OSH Act, “feasibility” encompasses economic feasibility. Under the OSH Act, a “standard is economically feasible if the costs it imposes do not ‘threaten massive dislocation to, or imperil the existence of, the industry.’” Am. Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991) (quoting United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1265 (D.C. Cir. 1980)). It is infeasible if it would “threaten the existence or competitive structure of an industry.” Steelworkers, 647 F.2d at 1272.
71. The Executive Order, by requiring that health regulations issued under the OSH Act take into account the cost of the new health standard, the cost in relation to the costs of existing standards to be repealed, and the costs of any other standards issued or repealed in that fiscal year, requires the agency to add considerations not among those exclusive considerations specified in the OSH Act.
72. For example, OSHA is currently considering whether to set a new occupational health standard for styrene, an industrial chemical that can harm workers’ respiration, eyes, and nervous system, and classified by the Department of Health and Human Services’ National Toxicology Program as “reasonably anticipated to be a human carcinogen.”1 The current federal permissible exposure limit is two to five times higher than the limits established by the Centers for Disease Control, the State of California, and the European Union. Setting a new standard would be a “significant regulatory action.” Therefore, to issue a proposed rule to update the limit, OSHA will be required by the Executive Order to offset the costs by repealing “at least two prior
1 See https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201610&RIN=1218-AD09. 23

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regulations,” Executive Order sec. 2(c) and 3(a)—without taking into account the benefit either of the new standard or the existing ones to be repealed.
73. Likewise, OSHA is developing a standard to protect health care employees and employees in other high-risk environments from exposure to pathogens that can cause significant infectious disease, such as tuberculosis, pandemic influenza, and SARS. 75 Fed. Reg. 24835 (2010). The standard would require employers to establish a comprehensive infection control program and control measures. OSHA anticipates issuing a proposed rule in October 2017. Therefore, OSHA will be required by the Executive Order to offset the costs of this rule by repealing “at least two prior regulations,” Executive Order sec. 2(c) & 3(a)—without taking into account the benefit either of the new standard or the existing standards to be repealed.
74. The Executive Order requires the agency to make decisions based on an impermissible and arbitrary choice—whether to issue a new standard at the cost of the loss of benefits of two existing standards. To repeal two occupational safety and health standards for the purpose of adopting one is arbitrary, capricious, an abuse of discretion, and contrary to the OSH Act. Likewise, to condition OSHA’s ability to regulate safety or health risks on identifying unrelated regulations of equal cost that the agency may be able to persuade some other agency to repeal is arbitrary, capricious, an abuse of discretion, and contrary to the OSH Act.
75. By instructing OSHA to repeal two standards for the purpose of adopting one, or conditioning OSHA’s ability to regulate safety and health risks on identifying unrelated regulations of equal cost that the agency may be able to persuade some other agency to repeal, the Executive Order adds considerations inconsistent with the agency’s and the courts’ longstanding interpretations of the OSH Act, and accordingly, exceeds the President’s authority
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under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
76. CWA has advocated for health and safety improvements for workers in the OSHA rulemaking process. CWA represents nurses in a number of private hospitals across the country, as well as other workers in high-risk environments, whose health is at unnecessary risk without federal rulemaking on measures to protect health care employees and employees in other highrisk environments from infectious disease exposures to pathogens that can cause significant disease. Public Citizen has in the past commented on OSHA proposed rules; it has also petitioned OSHA to issue new occupational safety and health rules and is currently contemplating petitioning OSHA to issue two new safety rules. Because the Executive Order requires the agency, before it can issue either a proposed or final workplace safety standard, to undertake new cost assessments of two or more existing rules to identify two or more for repeal, compliance with the Executive Order will slow the issuance of proposed rules and final rules, to the detriment of CWA, Public Citizen, and their members. Because the Executive Order requires the agency to repeal two existing rules as a condition of issuing a new workplace safety or health standard, and because the repealed rules must have combined costs equal to or higher than the new rule, compliance with the Executive Order will decrease workplace safety and health, to the detriment of CWA, Public Citizen, and their members.
C. Mine Safety and Health Act 77. The Mine Safety and Health Act (MSH Act) was enacted to protect the health and safety of miners. 30 U.S.C. § 801(a) (“[T]he first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource—the miner.”). Mirroring the language of the OSH Act, the MSH Act requires a mine safety standard involving
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“toxic materials or harmful physical agents” to “adequately assure on the basis of the best available evidence that no miner will suffer material impairment of health or functional capacity even if such miner has regular exposure to the hazards dealt with by such standard for the period of his working life.” Id. § 811(a)(6). Further, the MSH Act also specifically provides that “[n]o mandatory health or safety standard promulgated under this subchapter shall reduce the protection afforded miners by an existing mandatory health or safety standard.” Id. § 811(a)(9). The Mine Safety and Health Administration (MSHA) is delegated the authority to promulgate regulations under the MSH Act. Id. § 811(a).
78. The Executive Order, by requiring that safety regulations issued under the MSH Act take into account cost—the cost of the new safety standard, the cost in relation to costs of existing standards to be repealed, and the costs of other standards issued and repealed that fiscal year—requires the agency to consider a factor in addition to those exclusive considerations specified in the MSH Act.
79. For example, to reduce mining deaths from pinning, crushing, or striking injuries to miners who work near certain mobile equipment, MSHA has proposed a rule requiring underground coal mine operators to equip that equipment with proximity detection systems, with a phase-in schedule for newly manufactured and existing equipment. 80 Fed. Reg. 53070 (2015). The comment period for the proposed rule is scheduled to close on April 10, 2017. 82 Fed. Reg. 9369 (2017). The agency estimates that the rule will both impose annualized costs of $16 to $18 million and create annualized benefits of $16 to $18 million, not including benefits that could not be quantified due to a lack of definitive information (such as savings to mine operators who would be able to avoid production delays typically associated with mine accidents). 80 Fed. Reg. at 53082. Because MSHA has determined that the rule qualifies as “significant,” the rule will fall
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within the scope of the Executive Order. The Executive Order will require the agency to offset the costs of the rule by repealing “at least two prior regulations,” Executive Order sec. 2(c) & 3(a), without taking into account the benefits to miner safety either of the new standard or the existing standards to be repealed.
80. The Executive Order requires the agency to make decisions based on an impermissible and arbitrary choice—whether to issue a new standard at the cost of the loss of benefits of two existing standards. To repeal two standards for the purpose of adopting one would be arbitrary, capricious, an abuse of discretion, and contrary to the MSH Act. Because MSHA is not permitted by statute to reduce protections from existing standards, the Executive Order forces MSHA either to forgo new standards altogether or to convince some other agency to repeal unrelated regulations to offset the cost of any new safety standard.
81. By instructing MSHA to repeal two regulations for the purpose of adopting one, the Executive Order adds considerations inconsistent with the underlying statutes and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
82. Public Citizen advocates for strong mine-safety protections, including through press statements, comments to MSHA, and advocacy before Congress. Because the Executive Order requires the agency, before it can issue either a proposed or final safety standard, to undertake new cost assessments of two or more existing rules to identify two or more for repeal, compliance with the Executive Order will slow the issuance of proposed rules and final rules. Because the Executive Order requires the agency to repeal two existing rules as a condition of
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issuing a new safety regulations, and because the repealed rules must have combined costs equal to or higher than the new rule, compliance with the Executive Order will decrease safety.
D. Toxic Substance Control Act 83. The Toxic Substance Control Act (TSCA), as amended in 2016, is based on congressional findings that “human beings and the environment are being exposed each year to a large number of chemical substances and mixtures” that “may present an unreasonable risk of injury to health or the environment.” 15 U.S.C. § 2601(a). 84. TSCA directs the administrator of the EPA to evaluate existing chemicals under a risk-based safety standard “without consideration of costs or other nonrisk factors.” Id. §§ 2604(b)(4)(A), (f). 85. For example, to prevent documented harms to developing fetuses, carcinogenic effects from all routes of exposure, and respiratory, nervous system, kidney, liver, and immune system effects, EPA proposed two rules in December 2016 and January 2017 that would phase out trichloroethylene (TCE), a highly toxic volatile organic compound, for use in vapor degreasing, aerosol degreasing, and spot cleaning in dry cleaning facilities. 82 Fed. Reg. 7432 (2017) (vapor degreasing); 81 Fed. Reg. 91592 (2016) (aerosol degreasing and spot cleaning). The comment periods close on March 20, 2017, and February 14, 2017, respectively. The agency estimates that the vapor degreasing rule will impose costs of $30 million to $45 million annually but have net benefits (including health protection benefits) of $35 million to $402 million annually, and that the aerosol degreasing and spot cleaning rule will impose costs of $170,000 annually but have net benefits of $9 million to $24.6 million annually. 82 Fed. Reg. at 7453; 81 Fed. Reg. at 91594. Both rules are classified as “significant,” 82 Fed. Reg. at 7458; 81 Fed. Reg. at 91622, and will fall within the scope of the Executive Order.
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86. In another example, methylene chloride poses neurotoxicity, liver toxicity, and liver and lung cancer risks to workers, consumers, and bystanders where it is used, and NMethylpyrrolidone (NMP) poses health risks to pregnant women and women of child-bearing years. In January 2017, the EPA proposed a rule to regulate methylene chloride and NMP in paint removers. 82 Fed. Reg. 7464 (2017). The comment period closes on April 19, 2017. When finalized, the rule will either prohibit methylene chloride and NMP for all consumer and most types of commercial paint removal or impose a series of restrictions such as limitations on the amount of the substances in paint removal products, requiring warning labels for consumers, and requiring commercial users to have worker protection programs in place, including specialized gloves, as well as other equipment and hazard communication. The rule has been classified as a significant regulatory action and therefore falls within the scope of the Executive Order.
87. The Executive Order requires the EPA to offset the costs of these health regulations by repealing “at least two prior regulations,” Executive Order sec. 2(c), without taking into account the net benefits either of the new standards or the existing standards that will be repealed. To promulgate the regulations, the EPA must repeal at least twice as many existing regulations to offset costs of the new standards, without regard to the net benefits of the new regulations and the repealed regulations.
88. The Executive Order requires the EPA to make decisions based on an impermissible and arbitrary choice—whether to issue a new standard at the cost of the loss of benefits of two existing standards. To repeal two toxic substance safety standards for the purpose of adopting one would be arbitrary, capricious, an abuse of discretion, and contrary to the TSCA.
89. By instructing the agencies to repeal two standards for the purpose of adopting one, the Executive Order adds considerations inconsistent with the TSCA and, accordingly,
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exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
90. Members of Public Citizen, NRDC, and CWA are and will be exposed to TCE and methylene chloride, and NMP, and/or serious health risks associated with exposure to these chemicals. To protect their members and limit their exposure to toxic chemicals, Public Citizen and NRDC have long advocated for regulation of toxic substances, including advocacy for the 2016 TSCA amendments. NRDC has also advocated for effective, timely implementation of TSCA and has formally urged EPA to do so through the rulemaking process. CWA similarly advocates for regulation of toxic substances which threaten the health of its members. Moreover, trichloroethylene, for example, is present in at least one manufacturing facility where CWA members work, and if EPA adopts a rule regarding the human health risks of this substance, OSHA would normally follow with a rule protecting workers, including CWA members, from the substance’s risks in the workplace. Because the Executive Order requires the agency, before it can issue either proposed or final safety standards, to undertake new cost assessments of two or more existing rules to identify two or more for repeal, and because the Executive Order requires the agency to repeal two existing rules as a condition of issuing a new safety regulation, compliance with the Executive Order will decrease safety and protection from toxic substances, to the detriment of plaintiffs and their members.
E. Hazardous Materials Transportation Act, Federal Railroad Safety Act, and the Federal Water Pollution Control Act
91. In the past several years, a surge in the transport of volatile and explosive crude oil by rail has led to catastrophic train accidents, causing fire balls, oil spills into rivers, destruction of a city’s downtown, and loss of lives. The National Transportation Safety Board
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has investigated rail accidents and recommended strengthening regulations to prevent future accidents and reduce the harm when accidents occur.
92. The Department of Transportation regulates rail safety under two overlapping statutes: (1) the Hazardous Materials Transportation Act (HMTA), which directs the Secretary of Transportation to “prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce,” 49 U.S.C. § 5103(b), and (2) the Federal Railroad Safety Act (FRSA), which authorizes the Secretary to issue regulations and orders “for every area of railroad safety,” 49 U.S.C. § 20103(a). The Pipeline and Hazardous Materials Safety Administration (PHMSA) administers HMTA, and the Federal Railroad Administration (FRA) administers the FRSA. 49 C.F.R. §§ 1.89, 1.97(b). PHMSA has also been delegated authority under the Federal Water Pollution Control Act to issue regulations requiring railroads and other facilities to submit and obtain approval of oil-spill response plans. 33 U.S.C. § 1321. Such plans must respond “to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil.” Id. § 1321(j)(5)(A)(ii).
93. In July 2016, PHMSA, in consultation with the FRA, proposed a rule to require railroads to submit and obtain approval of comprehensive oil-spill response plans, to share information about high-hazard flammable train routes and contents with state and tribal emergency response organizations, and to update boiling point testing procedures. 81 Fed. Reg. 50068 (2016). The agency estimates that the rule will provide net benefits by substantially reducing the incidents and severity of oil spills. Id. at 50114. The final rule is scheduled for July 2017.
94. Because the rule is classified as a significant regulatory action, id. at 50108, it is subject to the Executive Order. Therefore, to issue a final rule, the agency will be required to
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offset the costs by repealing “at least two prior regulations,” Executive Order sec. 2(c) & 3(a), without taking into account the net benefits either of the new regulation or the existing regulations to be repealed.
95. The Executive Order requires the agencies to make decisions based on an impermissible and arbitrary consideration—whether the one new regulation is more important to rail safety than the combined benefits of two existing standards—that is nowhere specified in the governing statutes. To repeal two railroad safety regulations for the purpose of adopting one would be arbitrary, capricious, an abuse of discretion, and contrary to the underlying statutes.
96. By instructing the PHMSA and FRA to repeal two standards for the purpose of adopting one, the Executive Order adds considerations inconsistent with the underlying statutes and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
97. In the face of crude oil train disasters, NRDC has advocated on behalf of its members who live in the blast zone along rail lines on which hazardous crude oil is shipped. NRDC has commented on proposed rules that improve rail safety, advocated for legislation to require rules to reduce crude oil shipping hazards, and advocated for and commented on rules that will require the railroads to have comprehensive oil spill response plans. Because the Executive Order requires the agency, before it can issue either proposed or final safety standards, to undertake new cost assessments of two or more existing rules to identify two or more for repeal, compliance with the Executive Order will necessarily slow the issuance of proposed rules and final rules, to the detriment of NRDC and its members. Because the Executive Order requires the agency to repeal two existing rules as a condition of issuing a new safety regulation,
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and because the repealed rules much have combined costs equal to or higher than the new rule, compliance with the Executive Order will decrease safety, to the detriment of NRDC and its members.
F. Energy Policy and Conservation Act 98. The Energy Policy and Conservation Act (EPCA) authorizes the Department of Energy to set energy conservation standards for various consumer products and certain commercial and industrial equipment. President Reagan signed into law the provisions of EPCA that establish appliance efficiency standards, while Presidents George H.W. Bush and George W. Bush signed into law strengthening legislation. See Pub. L. 100-12; Pub. L. 100-357; Pub, L. 102-486; Pub. L. 109-58; Pub. L. 110-140. The Department of Energy (DOE) projects that national energy efficiency standards completed through 2016 will save, by 2020, as much energy as the entire nation consumes in a year, and that consumers will save $1 trillion on their utility bills by 2020, and $2 trillion on their utility bills by 2030.2 99. EPCA achieves these savings by providing that any new or amended energy conservation standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that DOE determines is technologically feasible and economically justified. 42 U.S.C. § 6295(o)(2)(A). DOE must periodically review already established energy conservation standards, and any new or amended standard must result in significant conservation of energy. Id. §§ 6295(m), (o)(3)(B). In deciding whether a new or amended standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens. Id. § 6295(o)(2)(B)(i). DOE must make this determination after
2 See U.S. Dep’t of Energy, Saving Energy and Money with Appliance and Equipment Standards in the United States (2017), available at https://energy.gov/sites/prod/files/2017/01/f34/Applian ce%20and%20Equipment%20Standards%20Fact%20Sheet-011917_0.pdf.
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considering seven statutory factors: (1) the economic impact of the standard on manufacturers and consumers of the products subject to the standard; (2) the savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard; (3) the total projected amount of energy (or as applicable, water) savings likely to result directly from the standard; (4) any lessening of the utility or the performance of the covered products likely to result from the standard; (5) the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard; (6) the need for national energy and water conservation; and (7) other factors the Secretary of Energy considers relevant. Id. § 6295(o)(2)(B)(i)(I)-(VII). EPCA also contains an “anti-backsliding” provision that bars the agency from prescribing any standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. Id. § 6295(o)(1).
100. The Executive Order requires DOE, when setting energy conservation standards, to make regulatory decisions based on factors other than the exclusive factors specified by EPCA, including the cost of the energy conservation standard in isolation from its cost-saving and pollution-reducing benefits, and the cost (but not the benefits) of an energy efficiency standard in relation to the costs of unrelated regulations.
101. For example, in June 2015, DOE proposed a rule under EPCA to amend the energy efficiency standards for residential conventional cooking products, such as stoves and ovens. 80 Fed. Reg. 33030 (2015). In September 2016, DOE issued a supplemental notice of proposed rulemaking. 81 Fed. Reg. 60784 (2016). DOE must publish a final rule no later than two years after the original proposal—that is, by June 2017. 42 U.S.C. § 6295(m)(3)(A). DOE
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estimates that the standard will impose an additional $42.6 million in increased equipment costs annually, but result in more than $293 million in energy bill savings for consumers, and more than an additional $88 million in reduced pollution benefits, for a net annual benefit of more than $339 million per year. 81 Fed. Reg. at 60789. In light of the magnitude of these net benefits, the standard will fall within the scope of the Executive Order challenged here. Notwithstanding the considerable net benefit to consumers and to the public more generally of this new standard, the Executive Order will require the agency to offset the costs of the standard by repealing “at least two prior regulations,” Executive Order sec. 2(c), regardless of the net benefits either of the new standard and the existing regulations that would be repealed.
102. The Executive Order requires the agency to make decisions based on an impermissible and arbitrary choice—whether to issue a new standard at the cost of the loss of benefits of two existing standards. To repeal two standards for the purpose of adopting one would be arbitrary, capricious, an abuse of discretion, and contrary to EPCA. Because DOE is not permitted by statute to reduce protections from existing standards, the Executive Order forces DOE either to forgo new standards altogether or to convince some other agency to repeal unrelated regulations to offset the cost of any new standard.
103. By instructing DOE to repeal two regulations for the purpose of adopting one, the Executive Order adds considerations inconsistent with the underlying statutes and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
104. Public Citizen’s and NRDC’s members benefit from improved appliance energy efficiency, including improved energy efficiency for residential conventional cooking products. Plaintiffs’ members use these products, and improved energy efficiency standards will reduce
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these members’ utility bills. In addition, reduced consumption of energy will lessen air pollution to which Plaintiffs’ members are exposed and that adversely affects Plaintiffs’ members’ health, recreational, aesthetic, and economic interests. Public Citizen and NRDC have long advocated for strong energy efficiency standards. NRDC has submitted multiple rounds of formal public comments in support of stronger energy efficiency standards for residential conventional cooking products, in particular. Plaintiffs and their members directly benefit from the significant energy savings and pollution reductions achieved through EPCA energy efficiency standards, and will be harmed if the Executive Order delays needed regulation, including amended energy efficiency standards such as the proposed standard for residential conventional cooking products, or weakens final regulations to avoid imposing regulatory costs that would need to be offset by repealing other rules. Because the Executive Order requires DOE to identify two or more existing rules for repeal before DOE can issue either a proposed or final energy efficiency standard, compliance with the Executive Order will delay the issuance of proposed rules and final rules, to the detriment of plaintiffs and their members. Because the Executive Order requires the agency to repeal two existing rules as a condition of issuing a new energy efficiency standard, and because the repealed rules must have combined costs equal to or higher than the new rule, compliance with the Executive Order will limit the adoption of new and more stringent energy efficiency standards, to the detriment of plaintiffs and their members.
G. Endangered Species Act 105. Congress enacted the Endangered Species Act (ESA) with the “plain intent … to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978). To achieve that purpose, the Act requires the Secretaries of the Interior and of Commerce to list species that are threatened or endangered with extinction, 16
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U.S.C. § 1533(a)(1), and to designate those species’ “critical habitat” (including habitat that is critical to the conservation of the species that may require special protection), id. § 1533(a)(3)(A); id. § 1532(5)(A). The ESA does not permit the Secretaries to consider cost when determining whether a species is threatened or endangered, but directs that cost should be considered, and specifies how it should be considered, in designating critical habitat. Specifically, the Secretaries must “tak[e] into consideration the economic impact … of specifying any particular area as critical habitat.” Id. § 1533(b)(2). The ESA permits the relevant Secretary to “exclude any area … if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless … the failure to designate such area as critical habitat will result in the extinction of the species concerned.” Id. The Secretaries have delegated their authority under the ESA to the Directors of the Fish and Wildlife Service and the National Marine Fisheries Service, respectively (collectively, the Services).
106. The Executive Order requires the Secretaries and the Services to consider factors when designating critical habitat that are outside the exclusive factors specified by the ESA itself. In particular, the Executive Order purports to require the Secretaries and the Services to consider the cost of critical habitat designations in isolation from the critical habitat’s benefits, and to consider the costs of critical habitat designations in relation to the costs of other regulations, including critical habitat designations for entirely distinct species.
107. Insofar as the Secretaries and the Services comply with the Executive Order when designating critical habitat, they will be acting in violation of the ESA. Insofar as the Executive Order instructs the Secretaries and the Services to consider the cost of a new critical habitat designation relative to the cost of existing or planned critical habitat designations, as a basis for
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making determinations under the ESA, the Executive Order exceeds presidential authority, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
108. For example, the National Marine Fisheries Service has proposed critical habitat under the ESA for several distinct population segments of the Atlantic sturgeon. 81 Fed. Reg. 35701 (2016). This action has been classified as “significant” under Executive Order 12866, id. at 35714, a trigger for application of the Executive Order challenged here. The Fisheries Service is required to finalize critical habitat designation for these species by May 2017. Compliance with the Executive Order requires the Secretary of Commerce and the Fisheries Service to offset the costs of the critical habitat designations by repealing “at least two prior regulations,” Executive Order sec. 2(c), without taking into account the net benefits either of the Atlantic sturgeon critical habitat or of the existing standards that would be repealed.
109. Requiring the Secretary of Commerce and the Fisheries Service to offset the costs of the critical habitat designation by repealing other regulations would force the Secretary of Commerce and the Fisheries Service to consider an impermissible and arbitrary factor—whether to promulgate critical habitat at the cost of the loss of benefits to two existing regulations—that is nowhere specified in the governing statute. To repeal two regulations for the purpose of adopting one, or to designate inadequate critical habitat to reduce associated cost, would be arbitrary, capricious, an abuse of discretion, and contrary to the ESA.
110. By instructing agencies to repeal two regulations for the purpose of adopting one, the Executive Order adds considerations inconsistent with the underlying statutes and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article
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I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
111. NRDC has for many decades advocated for strong protections for critical habitat of threatened and endangered species, including the Atlantic sturgeon. Indeed, the Fisheries Service proposed to designate critical habitat for the five distinct population segments of Atlantic sturgeon only after NRDC and another organization sued to compel the Service to do so. Since prevailing in that litigation, NRDC and coalition partners have filed formal comments regarding the Fisheries Service’s proposed designation of that Atlantic sturgeon critical habitat. Over the years, NRDC has advocated for, commented on, and litigated to ensure strong critical habitat designations for many other threatened and endangered species as well. NRDC members’ scientific, recreational, aesthetic, and other interests will be adversely affected if Atlantic sturgeon critical habitat is not designated or if insufficient critical habitat is designated.
112. NRDC anticipates bringing lawsuits within the next year to compel the Secretary of Commerce or the Secretary of the Interior to designate critical habitat for specific other species that are listed as threatened or endangered, and in the protection of which NRDC’s members have scientific, recreational, aesthetic, and other interests, but for which critical habitat has not been designated. Such litigation is authorized by the ESA, 16 U.S.C. § 1540(g), and protected by the Petition Clause of the First Amendment to the U.S. Constitution. However, the Executive Order provides that each regulation designating critical habitat must be offset by the repeal of two other regulations that impose equal or greater cost. This puts NRDC in the untenable position of choosing between either: (a) engaging in statutorily authorized and constitutionally protected advocacy to compel designation of critical habit, even though under the Executive Order the agency would then have to repeal two other critical habitat designations
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or regulations; or (b) forsaking this authorized and protected advocacy and allowing the Secretaries to continue to violate the Endangered Species Act’s mandatory critical habitat designation provisions, to the detriment of NRDC’s members who have scientific, recreational, aesthetic, and other interests in the protection of the relevant threatened or endangered species.
113. NRDC’s members study, view, and enjoy species referenced in this Complaint, and their interests in those activities will be harmed by reduced or delayed protections for these species. The Executive Order will slow the issuance of proposed rules and final rules, including critical habitat designations, to the detriment of NRDC and its members. The Executive Order purports to require the Secretaries and the Services to undertake new cost assessments of other existing rules and to identify two or more rules for repeal before critical habitat is designated. Because the Executive Order requires the Secretaries and the Services to repeal two existing rules as a condition of issuing a new regulation, including new critical habitat designations, and because the repealed rules must have combined costs equal to or higher than the new regulation, compliance with the Executive Order will reduce protections for threatened and endangered species to the detriment of NRDC and its members.
H. Clean Air Act 114. Congress enacted the Clean Air Act to protect and enhance air quality “to promote the public health and welfare and the productive capacity of [the] population.” 42 U.S.C. § 7401(b)(1). The Act requires EPA to establish emissions standards and to review and update the standards to ensure they meet the statutory criteria and keep up with technological advances. Id. § 7411. The Clean Air Act has saved over 150,000 lives per year and spared more than 100,000 people per year from hospital visits from respiratory ailments like asthma and bronchitis. According to the EPA, in the Act’s first 40 years, benefits—in the form of longer
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lives, healthier children, greater workplace productivity, and ecosystem protection—outweighed costs by more than 30 to 1.3
115. In the Clean Air Act, Congress directed EPA to establish several types of standards based on prescribed factors. For example, the Act directs EPA to promulgate national ambient air quality standards (NAAQS) for air pollution from numerous and diverse mobile and stationary sources, including emissions of such substances as ozone, particulate matter, and sulfur dioxide. Id. § 7409. The Act directs EPA to set primary NAAQS at levels “requisite to protect the public health” with “an adequate margin of safety.” Id. § 7409(b)(1). At five-year intervals, EPA must review and revise the NAAQS as appropriate to meet the controlling statutory standard. Id. § 7409(d)(1). The Act does not permit EPA to consider implementation costs in setting the NAAQS. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001).
116. The Clean Air Act also requires EPA to set new source emission standards for a wide range of industries and to review and update those standards every 8 years. 42 U.S.C. § 7411. EPA must require the best system of emission reduction that has been adequately demonstrated. In doing so, it is to take into account the cost of achieving emission reductions, as well as health and environmental impact and energy requirements. Id. § 7411(a)(1). EPA is allowed to consider costs only in this manner.
117. In addition, under the Clean Air Act, because greenhouse gasses are “air pollutants,” EPA had a duty to determine whether greenhouse gas pollution in the atmosphere endangers public health and welfare. Massachusetts v. EPA, 549 U.S. 497 (2007). In 2009, EPA made an endangerment determination, which was upheld in Coalition for Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012), cert. denied 134 S. Ct. 468 (2013). In light of this
3 EPA, The Benefits and Costs of the Clean Air Act from 1990 to 2020, available at https://www.epa.gov/sites/production/files/2015-07/documents/fullreport_rev_a.pdf (Apr. 2011).
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determination, when EPA determines that emissions from a category of mobile sources (e.g., cars, trucks, airplanes) “cause or contribute” to elevated atmospheric greenhouse gas levels, EPA has a mandatory obligation to promulgate a regulation controlling the emissions. E.g., 42 U.S.C. § 7521(a)(1). The Executive Order introduces statutorily irrelevant and thus unlawful factors into the “cause or contribute” determination. It also requires the repeal of at least two independent rules to offset costs from a new regulation limiting greenhouse gas emissions, in derogation of the Clean Air Act.
118. The Executive Order requires the agency to make an impermissible and arbitrary choice—whether to issue a new standard at the cost of the loss of benefits of two existing standards. To repeal two regulations for the purpose of adopting one would be arbitrary, capricious, an abuse of discretion, and contrary to the Clean Air Act.
119. By instructing EPA to repeal two regulations for the purpose of adopting one, the Executive Order adds considerations inconsistent with the underlying statutes and, accordingly, exceeds the President’s authority under Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
120. NRDC, for more than 45 years, has worked to protect its members’ lives, health, and welfare, advocating on behalf of its members for vigorous and effective implementation of the Clean Air Act. NRDC regularly advocates on behalf of its members in rulemakings over national standards, state implementation proceedings, and enforcement cases. NRDC has prevailed in dozens of cases challenging failures to perform mandatory duties or to meet statutory deadlines, and overturning regulatory standards and actions that are arbitrary, capricious, or contrary to EPA’s delegated rulemaking authority. NRDC has also supported EPA as an intervenor in many cases to defend EPA rules against challenges by regulated entities.
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NRDC’s members are adversely affected by the Executive Order because it will cause the delay, weakening, or repeal of critical life-saving and environment-protecting air pollution limits.
FIRST CAUSE OF ACTION (Violation of separation of powers) 121. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 122. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires. 123. The Constitution vests executive power in the President. U.S. Const., art. II. The President of the United States has only those powers conferred on him by the Constitution and federal statutes. 124. Federal legislation must be passed by both chambers of Congress before it may be presented to the President and, if signed, become law. U.S. Const., art. I. The President has no authority under the Constitution to amend federal statutes unilaterally. 125. By requiring agencies engaged in rulemaking to consider and take final action or to withhold final action based on factors that are impermissible and arbitrary under the governing statutes, the Executive Order purports to amend the statutes through which Congress has delegated rulemaking authority to federal agencies. 126. Such action by the President exceeds presidential authority and usurps legislative authority conferred by the Constitution on the Congress. 127. Accordingly, the Executive Order violates the separation of powers.
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128. Plaintiffs and their members will suffer irreparable injury if the Executive Order is not declared unlawful, and plaintiffs and their members have no adequate remedy at law.
129. The public interest favors entry of a declaration that the Executive Order is unconstitutional, in violation of the separation of powers, because implementation of the Executive Order will deter, weaken, delay, and eliminate regulations that protect plaintiffs and the public from harm.
SECOND CAUSE OF ACTION (Violation of the Take Care Clause) 130. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 131. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires. 132. Under the Constitution, the President has duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. 133. The Take Care Clause is judicially enforceable against presidential action that undermines statutes enacted by Congress and signed into law. See, e.g., Angelus Milling Co. v. Comm’r of Internal Revenue, 325 U.S. 293, 296 (1945) (“Insofar as Congress has made explicit statutory requirements, they must be observed and are beyond the dispensing power of [the Executive Branch].”); Kendall v. United States ex. Rel. Stokes, 37 U.S. (12 Pet.) 524, 612-13 (1838). 134. The Take Care Clause limits the President’s power and ensures that he will faithfully execute Congress’s laws.
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135. Under the Constitution, the President lacks the authority to direct federal officers or agencies to act in derogation of the statutes that delegate rulemaking authority to them.
136. The Executive Order directs agencies to take action contrary to numerous laws passed by Congress, including but not limited to the Motor Vehicle Safety Act, the Motor Carrier Safety Acts of 1935 and 1984, the OSH Act, the MSH Act, TSCA, HMTA, the FRSA, the Federal Water Pollution Control Act, the EPCA, the ESA, the Clean Air Act, and the APA.
137. Plaintiffs and their members will suffer irreparable injury if the Executive Order is not declared unlawful and in violation of the Take Care Clause. Plaintiffs and their members have no adequate remedy at law.
138. The public interest favors entry of a declaration that the Executive Order is contrary to law and unconstitutional, because implementation of the Executive Order will deter, weaken, delay, and eliminate regulations that protect plaintiffs and the public from harm.
139. Accordingly, the Executive Order is in violation of the Take Care Clause and compliance with or enforcement of the Executive Order violates the Take Care Clause.
THIRD CAUSE OF ACTION (Non-statutory review of ultra vires action by agency officials) 140. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 141. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires. 142. Neither the statutes from which the agency defendants derive their rulemaking authority nor the APA authorizes these defendants to consider and take action based on the cost
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of a new rule in relation to the costs of existing standards for the purpose of offsetting costs as a condition of issuing a new standard in compliance with the Executive Order.
143. Neither the statutes from which the agency defendants derive their rulemaking authority nor the APA authorize these defendants, when determining whether to issue a proposed or final rule, to choose between the benefits of that rule and the benefits of other rules required by the Executive Order to be issued or repealed in the fiscal year in which the new rule is adopted.
144. The Executive Order directs these defendants to exercise their delegated authority in ways that are arbitrary, capricious, an abuse of discretion, contrary to the Constitution and the governing statutes, and in violation of the APA, 5 U.S.C. § 706. The agency defendants cannot implement the Executive Order without violating the statutes from which they derive their rulemaking authority and the APA.
145. Plaintiffs and their members will suffer irreparable injury if the agency defendants comply with the Executive Order. Plaintiffs and their members have no adequate remedy at law.
146. The public interest favors barring the agency defendants from complying with the Executive Order because compliance is be contrary to law, and will deter, weaken, delay, and eliminate regulations that protect plaintiffs and the public from harm.
147. Because the Executive Order directs agencies to violate the law, this Court should declare that the Executive Order is of no force and effect and enjoin compliance with the order.
FOURTH CAUSE OF ACTION (Non-statutory review of ultra vires actions by director of OMB) 148. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs as if fully set forth herein.
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149. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires.
150. The director of OMB may act only pursuant to authority lawfully delegated by Congress or the President. 31 U.S.C. § 501 et seq.
151. Because the Executive Order violates the President’s authority under the Constitution and directs action contrary to law, implementation of the Executive Order by the director of OMB is arbitrary, capricious, an abuse of discretion, and contrary to law.
152. Plaintiffs and their members will suffer irreparable injury if the agency defendants comply with the Executive Order and OMB’s implantation of it. Plaintiffs and their members have no adequate remedy at law.
153. The public interest favors entry of an injunction barring implementation by OMB of the Executive Order and OMB’s Interim Guidance because the Interim Guidance and the Executive Order on which it is based are contrary to law, and implementation will deter, weaken, delay, and eliminate regulations that protect plaintiffs and the public from harm.
154. Because the Executive Order directs agencies to violate the law, this Court should declare that the OMB Interim Guidance implementing the Executive Order and the Executive Order are of no force and effect and enjoin the director of OMB from implementing the Executive Order.
FIFTH CAUSE OF ACTION (Violation of the APA)
155. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs as if fully set forth herein.
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156. The APA requires this Court to hold unlawful and set aside any agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).
157. The OMB Interim Guidance, which implements section 2 of the Executive Order and purports to be binding on federal agencies, constitutes final agency action under the APA.
158. The President lacks constitutional authority to issue the Executive Order and to direct the director of OMB to implement it, including by issuing the Interim Guidance. The Interim Guidance is arbitrary, capricious, an abuse of discretion, and not in accordance with law, in contravention of the APA. Id.
159. Plaintiffs and their members will suffer irreparable injury if the director of OMB implements the Executive Order. Plaintiffs and their members have no adequate remedy at law.
160. The public interest favors entry of an injunction barring implementation of the Interim Guidance because that Guidance violates the APA and is in excess of OMB’s authority, chills First Amendment activity, and stands as an obstacle to fulfillment of congressional mandates and purposes discharged through agency rulemaking.
161. Because the Executive Order directs unlawful action, its implementation by the director of OMB will cause other federal agencies to violate the APA and numerous statutes, as discussed above. This Court should hold the Interim Guidance unlawful and set it aside, declare that it is of no force and effect, and enjoin the director of OMB from implementing the Executive Order.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court:
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(A) Declare the Executive Order in violation of the Take Care Clause, in excess of

presidential authority under Article II of the Constitution, an infringement on legislative

authority, and invalid; and

(B) Declare that defendants cannot lawfully implement or comply with sections 2 and

3(a) and (d) of the Executive Order;

(C) Declare unlawful and set aside the OMB Interim Guidance;

(D) Enjoin the agency defendants, including the director of OMB, from complying

with the Executive Order;

(E) Grant such other relief as this Court may deem just and proper.

Dated: February 8, 2017

Respectfully submitted,

Michael E. Wall (CA Bar No.170238) NATURAL RESOURCES DEFENSE
COUNCIL, INC. 111 Sutter Street, Floor 21 San Francisco, CA 94104 (415) 875-6100
Counsel for Natural Resources Defense Council, Inc.
Guerino J. Calemine, III (DC Bar No. 465413) COMMUNICATIONS WORKERS OF AMERICA 501 3rd Street NW Washington, DC 20001 (202) 434-1100

/s/

.

Allison M. Zieve

(DC Bar No. 424786)

Scott L. Nelson

(DC Bar No. 413548)

Sean M. Sherman

(NY Bar No. 5115456, application for DC

Bar membership pending)

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

Patti A. Goldman (DC Bar No. 398565) EARTHJUSTICE 705 2nd Avenue, #203 Seattle, WA 98104 (206) 343-7340

Counsel for Communications Workers of America

Counsel for all Plaintiffs

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 Case 1:17-cv-00253-RDM Document 67 Filed 04/20/18 Page 1 of 88

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, INC., NATURAL RESOURCES DEFENSE COUNCIL, INC., and COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,

v.

Civil Action No. 17-253 (RDM)

DONALD TRUMP, President of the United States, UNITED STATES OF AMERICA, MICK MULVANEY, Director of the Office of Management and Budget, RICK PERRY, Secretary of Energy, U.S. Department of Energy, ELAINE L. CHAO, Secretary of Transportation, U.S. Department of Transportation, HEIDI KING, Deputy Administrator of the National Highway Traffic Safety Administration, LOREN SWEATT, Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, R. ALEXANDER ACOSTA, Secretary of Labor, U.S. Department of Labor, RYAN ZINKE, Secretary of the Interior, U.S. Department of the Interior, RAYMOND MARTINEZ, Administrator, Federal Motor Carrier Safety Administration, JIM KURTH, Deputy Director and Acting Director, U.S. Fish and Wildlife Service, SCOTT PRUITT, Administrator, U.S. Environmental Protection Agency, HOWARD “SKIP” ELLIOTT, Administrator, Pipeline and Hazardous Materials Safety Administration, CHRIS OLIVER, Assistant Administrator for Fisheries, National Marine Fisheries Service, DAVID ZATEZALO, Assistant Secretary for Mine Safety and Health Administration, U.S. Department of Labor, and RONALD BATORY, Administrator, Federal Railroad Administration.1

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Pursuant to Federal Rule of Civil Procedure 25, current public officers have been substituted for some of the public officers originally named as defendants.

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INTRODUCTION 1. This action seeks declaratory and injunctive relief with respect to Executive Order 13771 on “Reducing Regulation and Controlling Regulatory Costs” issued by President Donald Trump on January 30, 2017, Interim Guidance issued by the Office of Management and Budget (OMB) on February 2, 2017, and Guidance issued by OMB on April 5, 2017, regarding implementation of the Executive Order. The Executive Order exceeds President Trump’s constitutional authority, violates his duty under the Take Care Clause of the Constitution, and directs federal agencies to engage in unlawful actions that harm countless Americans, including plaintiffs’ members. 2. Executive Order 13771 states that an agency may issue a new regulation only if it rescinds at least two existing regulations in order to offset the costs of the new regulation. It directs agencies (1) to identify at least two existing regulations to repeal for every new regulation proposed or issued, (2) to offset the costs of a new regulation by eliminating costs associated with at least two existing regulations, and (3) to promulgate regulations during fiscal year 2017 that, together with repealed regulations, have combined incremental costs of $0 or less, regardless of the benefits. The Executive Order states that the total incremental cost limit for future fiscal years will be identified later by the Director of OMB. Following OMB’s instruction that each agency’s total incremental cost for fiscal year 2018 should be a net reduction from fiscal year 2017, each agency set a cost cap of $0 or less. 3. The Executive Order is blocking, delaying, or forcing the repeal of regulations needed to protect health, safety, and the environment, across a broad range of topics—from automobile safety, to occupational health, to air pollution.
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4. The Executive Order’s mandate that a new regulation may be issued only if its costs are offset by costs eliminated through the repeal of at least two regulations ignores the benefits of these rules—including rules that cannot be promulgated consistent with the mandate and rules that must be repealed to meet the mandate. Indeed, the Executive Order directs agencies to disregard the benefits of new and existing rules in complying with this mandate—including benefits to consumers, to workers, to people exposed to pollution, and to the economy—even when the benefits far exceed costs. The Executive Order’s direction to federal agencies to zero out costs to regulated industries, divorced from consideration of the public benefits for which Congress enacted these statutes, forces agencies to take regulatory actions that harm the people of this nation.
5. Executive Order 13771 and OMB’s Interim Guidance and Guidance direct regulatory agencies to engage in decisionmaking that is arbitrary, capricious, an abuse of discretion, and not in accordance with law. No governing statute authorizes any agency to withhold, delay, or revise a regulation that would address identified harms to public safety, health, or other statutory objectives until it can rescind two or more existing regulations and offset the costs of the new one. No governing statute authorizes any agency to withhold, delay, or revise a regulation that would address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs (for fiscal year 2017, a cap of $0; for fiscal year 2018, a cap of $0 or less) that regulations may impose on regulated entities or the economy.
6. Rulemaking in compliance with the Executive Order’s requirements cannot be undertaken without violating the statutes from which the agencies derive their rulemaking authority and the Administrative Procedure Act (APA).
7. The implementation of governing statutes, passed by Congress and signed into law by previous Presidents, is slowing and may largely halt under the Executive Order. In addition to
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complying with the substantive requirements of those laws and the procedural requirements of the APA, agencies, to issue a new proposed or final rule, are required to undertake new cost assessments both of the new proposed or final rule and at least two existing rules—although the new rule and the existing rules need not have any substantive relationship to one another and, with approval from OMB, need not even be issued by the same agency. Moreover, for each new regulation that an agency promulgates, it must undertake at least two additional rulemakings to repeal existing regulations.
8. In seeking to impose rulemaking requirements beyond and in conflict with the requirements of the APA and the statutes from which the federal agencies derive their rulemaking authority, the Executive Order exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3.
9. The Executive Order, Interim Guidance, and Guidance are facially unlawful. Implementation and enforcement of the Executive Order, Interim Guidance, and Guidance should be enjoined.
JURISDICTION AND VENUE 10. This Court has jurisdiction under 28 U.S.C. § 1331. 11. Venue is proper in this district because plaintiff Public Citizen resides and has its principal place of business in this judicial district, and because a substantial part of the acts or omissions giving rise to the claim occurred in this judicial district. 28 U.S.C. § 1391(c)(2), (e)(1).
PARTIES 12. Plaintiff Public Citizen, Inc., is a national, non-profit consumer advocacy organization with more than 400,000 members and supporters nationwide. Public Citizen engages
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in research, advocacy, media activity, and litigation related to advancing health and safety, consumer protection, and the environment, among other things. Public Citizen’s members, like most Americans, are the beneficiaries of consumer protection, public health, environmental, and other statutes that Congress enacted to serve the public interest and protect the public. Public Citizen’s members, including members Amanda Fleming and Terri Weissman, rely on Public Citizen to petition the government on their behalf, to advocate for strong protections with respect to auto safety, drug and medical device safety, workplace safety, consumer finance, and the environment, among other things. On behalf of its members, and in furtherance of its mission and the interests of its members, Public Citizen petitions federal agencies for rulemaking and comments on proposed regulations issued by federal agencies, and it publishes reports, writes opeds, and litigates in support of its members’ interests in health and safety, consumer protection, and environmental regulation. The Executive Order adversely affects Public Citizen’s members by forbidding new regulations to implement laws protecting their interests, unless the government repeals existing regulations that already do so. The Executive Order also injures Public Citizen and its members, including members Amy Allina, Amanda Fleming, and Terri Weissman, by causing agencies to delay, not issue, or repeal regulations that protect their concrete interests in order to comply with the Executive Order.
13. On behalf of its members, Public Citizen engages in research, advocacy, public education, and litigation to advance consumer protections, public health, and the environment. As part of this work, Public Citizen petitions federal agencies to issue new or stronger rules. When Public Citizen considers whether to submit a rulemaking petition, it considers factors such as the governing statute, regulations, and agency practice; the nature of the agency proceedings that would follow a petition; the resources and evidence available to Public Citizen; and likely
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outcomes of a rulemaking petition. The Executive Order, however, imposes a new requirement and consideration, directing an agency to repeal two regulations for every significant new regulation issued, and commanding agencies to offset regulated parties’ costs through deregulatory actions, regardless of a new regulations’ net benefits. These new and extra-statutory agency decisionmaking criteria make it likely that a successful rulemaking petition will be counterproductive and impede Public Citizen’s mission. The Executive Order thus adversely affects Public Citizen’s ability to advocate on its members’ behalf by forcing Public Citizen to choose between advocating for new regulations, at the cost of potential loss of other beneficial regulations, and refraining from advocating for necessary new public protections. The Executive Order injures Public Citizen’s ability to advance its mission through petitioning activity.
14. Plaintiff Natural Resources Defense Council, Inc. (NRDC) is a non-profit environmental and public health organization with hundreds of thousands of members nationwide. NRDC members, like most Americans, benefit from statutes that Congress has enacted to protect health and the environment, and these members, including members Karen Bain, Barbara Blau, James Coward, R.J. Mastic, Eduardo Pontoriero, Jose Rivero, and Gerald Winegrad, rely on NRDC to represent their interests in advocating for such protections. For example, NRDC members are exposed to and injured by exposure to pollution regulated under the Clean Air Act and exposed to and injured by exposure to toxic chemicals regulated under the Toxic Substances Control Act; such exposures increase NRDC members’ risk of injury to their health. NRDC members live, work, and/or recreate near enough to rail lines used to convey oil and other dangerous substances that an explosion involving such cargo near them would threaten their health, property, and/or recreational and aesthetic enjoyment. NRDC members study, observe, and enjoy species protected under, and that meet the standards for protection under, the Endangered
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Species Act. And NRDC and its members buy and use appliances in their personal and professional lives, including residential conventional cooking appliances and commercial water heaters, for which stricter, mandatory energy efficiency standards would benefit NRDC and its members by reducing costs, including lifecycle energy costs, increasing selection and availability of products that are not otherwise available or reliably identifiable by those interested in purchasing energy efficient appliances, and reducing air pollution that causes health, recreational, aesthetic, and economic harm to NRDC members. The Executive Order has harmed and continues to harm NRDC’s members’ economic, health, scientific, recreational, aesthetic, and other interests, including those NRDC members identified above, by delaying and preventing the adoption of new regulations to implement laws that protect these members’ interests.
15. On behalf of its members, NRDC engages in research, advocacy, public education, and litigation to protect public health and the environment. As part of this work, NRDC has for many years petitioned federal agencies to issue new or stronger rules to protect health and the environment. NRDC wishes to continue to be able to do so unburdened by the Executive Order’s command that the costs to regulated parties of all new significant regulations be offset by deregulatory actions. When NRDC considers whether to submit a rulemaking petition, it considers factors such as the governing statute, regulations, and agency practice; the nature of the agency proceedings that would follow a petition; the resources and evidence available to NRDC; and likely outcomes of a rulemaking petition. The Executive Order, however, imposes a new requirement and consideration, directing an agency to repeal two regulations for every significant new regulation issued, and commanding agencies to offset regulated parties’ costs through deregulatory actions, regardless of a new regulation’s net benefits. These new and extra-statutory agency decisionmaking criteria make it likely that a successful rulemaking petition will be counter-
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productive and impede NRDC’s mission. Because of the Executive Order’s offset requirements, NRDC decided not to petition the Environmental protection Agency (EPA) to adopt a new drinking water standard that would have protected NRDC’s members from presently unregulated contaminants. The Executive Order has harmed NRDC’s ability to advance its mission through petitioning activity.
16. The Communications Workers of America, AFL-CIO (CWA), is an international labor union representing 700,000 workers in the telecommunications, media, manufacturing, airline, and health care industries and in a wide variety of public sector positions in the United States, Canada, and Puerto Rico. In representing such workers, CWA seeks to improve their working conditions, including their health and safety at work, through collective bargaining and public policy advocacy. CWA frequently engages in the federal agency rulemaking process under the APA, advocating for rules that improve workers’ wages, hours, and working conditions. The Executive Order threatens this First Amendment-protected petitioning activity and participation in the rulemaking process because, under the Executive Order, successful advocacy in favor of a particular regulation is conditioned on repeal of other important regulations, such as those protecting workers’ wages, hours, and working conditions. Workplace hazards currently slated for the federal regulatory process include matters within the scope of federal safety and health laws that directly affect the health and safety of CWA-represented workers, such as trichloroethylene exposure for manufacturing workers and infectious disease exposure for nurses. Although in these examples CWA would press for strong worker protections that would save lives and are feasible, the Executive Order imposes a disturbing Sophie’s Choice because new health and safety protections can be issued only if twice as many other protections are repealed. The Executive Order thus chills CWA’s activity, to the detriment of its mission and its members, including members
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Denise Abbott and James Bauer, Sr. The Executive Order also injures CWA and its members, including members Denise Abbott and James Bauer, Sr., by causing agencies to forgo, delay, or repeal regulations that protect the members’ health and safety at work, or other workplace rights, in order to comply with the Executive Order.
17. Defendant Donald J. Trump is the President of the United States and issued the Executive Order challenged in this complaint. Plaintiffs sue President Trump in his official capacity.
18. Defendant Mick Mulvaney is the Director of OMB and OMB’s highest-ranking official. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Director Mulvaney in his official capacity. OMB is an agency within the meaning of the APA.
19. Defendant Rick Perry is the Secretary of Energy and the highest ranking official of the U.S. Department of Energy (DOE). He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Secretary Perry in his official capacity. DOE is an agency within the meaning of the APA.
20. Defendant Elaine L. Chao is the Secretary of Transportation and the highestranking official of the U.S. Department of Transportation (DOT). She is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Secretary Chao in her official capacity. DOT is an agency within the meaning of the APA.
21. Defendant Heidi King is the Deputy Administrator of the National Highway Traffic Safety Administration (NHTSA) in DOT, and that agency’s highest-ranking official. She is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs
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sue Deputy Administrator King in her official capacity. NHTSA is an agency within the meaning of the APA.
22. Defendant Loren Sweatt is the Acting Assistant Secretary of Labor for Occupational Safety and Health at the Department of Labor and the highest-ranking official of the Occupational Safety and Health Administration (OSHA). She is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Acting Assistant Secretary Sweatt in her official capacity. OSHA is an agency within the meaning of the APA.
23. Defendant Ryan Zinke is the Secretary of the Interior and the highest-ranking officer in the Department of the Interior. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Secretary Zinke in his official capacity. The Department of the Interior is an agency within the meaning of the APA.
24. Defendant R. Alexander Acosta is the Secretary of Labor, U.S. Department of Labor (DOL), and DOL’s highest-ranking officer. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Secretary Acosta in his official capacity. DOL is an agency within the meaning of the APA.
25. Defendant Raymond Martinez is the Administrator of the Federal Motor Carrier Safety Administration (FMCSA) in DOT, and the agency’s highest-ranking official. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Administrator Martinez in his official capacity. FMCSA is an agency within the meaning of the APA.
26. Defendant Jim Kurth is the Deputy Director and Acting Director of the U.S. Fish and Wildlife Service, and the agency’s highest-ranking official. He is charged with the supervision
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and management of all decisions and actions of that agency. Plaintiffs sue Acting Director Kurth in his official capacity. The Fish and Wildlife Service is an agency within the meaning of the APA.
27. Defendant Scott Pruitt is the Administrator of EPA and the agency’s highestranking official. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Administrator Pruitt in his official capacity. EPA is an agency within the meaning of the APA.
28. Defendant Howard “Skip” Elliot is the Administrator of the Pipeline and Hazardous Materials Safety Administration (PHMSA) in DOT, and the agency’s highest-ranking official. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Administrator Elliott in his official capacity. PHMSA is an agency within the meaning of the APA.
29. Defendant Chris Oliver is the Assistant Administrator for Fisheries at the National Marine Fisheries Service (NMFS), and the agency’s highest-ranking official. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Assistant Administrator Oliver in his official capacity. NMFS is an agency within the meaning of the APA.
30. Defendant David Zatezalo is the Assistant Secretary for Mine Safety and Health at DOL, and the highest-ranking official of the Mine Safety and Health Administration (MSHA). He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue Assistant Secretary Zatezalo in his official capacity. MSHA is an agency within the meaning of the APA.
31. Defendant Ronald Batory is the Administrator of the Federal Railroad Administration (FRA) and the agency’s highest-ranking official. He is charged with the supervision and management of all decisions and actions of that agency. Plaintiffs sue
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Administrator Batory in his official capacity. The Federal Railroad Administration is an agency within the meaning of the APA.
BACKGROUND The Executive Order
32. On January 30, 2017, defendant President Trump signed Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs.” 82 Fed. Reg. 9339 (2017).
33. The Executive Order directs that, “[u]nless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.” Sec. 2(a).
34. The Executive Order further directs that, for fiscal year 2017, “the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of [OMB].” Sec. 2(b).
35. In furtherance of the requirement quoted in paragraph 31, above, the Executive Order directs that “any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the APA and other applicable law.” Sec. 2(c).
36. The Executive Order further directs that, for fiscal year 2018 and subsequent years, “the head of each agency shall identify, for each regulation that increases incremental cost, the offsetting regulations described in paragraph 34, and provide the agency’s best approximation of the total costs or savings associated with each new regulation or repealed regulation.” Sec. 3(a).
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37. The Executive Order further states that, “[d]uring the Presidential budget process, the Director [of OMB] shall identify to agencies a total amount of incremental costs that will be allowed for each agency in issuing new regulations and repealing regulations for the next fiscal year. No regulations exceeding the agency’s total incremental cost allowance will be permitted in that fiscal year, unless required by law or approved in writing by the Director. The total incremental cost allowance may allow an increase or require a reduction in total regulatory cost.” Sec. 3(d).
38. The Executive Order directs that agencies offset the costs of new regulations and, in doing so, consider costs divorced from consideration of the benefits associated with the new rule or the existing rules designated for repeal, or of whether, taking into account costs and benefits, those rules have net benefits.
39. A true and correct copy of the Executive Order is appended as Exhibit A. 40. The Executive Order instructs the Director of OMB to “provide the heads of agencies with guidance on the implementation of” the requirements of section 2, described in paragraphs 31–33, above. Sec. 2(d). OMB’s Interim Guidance, Guidance, and Subsequent Actions 41. On February 2, 2017, OMB issued “Interim Guidance Implementing Section 2 of the Executive Order,” which addresses regulations to be issued in fiscal year 2017. The Interim Guidance states that guidance addressing application of the Executive Order for fiscal years 2018 and beyond will be issued at a later date. 42. The Interim Guidance states that the Executive Order applies “only to those significant regulatory actions,” as defined in Executive Order 12866, issued after noon on January 20, 2017, including final regulations for which a proposed rule was issued before that date.
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Executive Order 12866 defines “significant regulatory actions” to mean, among other things, regulatory actions that have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, jobs, the environment, public health or safety, or State, local, or tribal governments or communities, or that raise novel legal or policy issues.
43. The Interim Guidance further states that “[p]urely deregulatory actions that confer only savings to all affected parties generally will not trigger” the Executive Order’s requirement that the agency identify two or more existing rules for repeal, but that “if such deregulatory actions impose costs on individuals or entities, agencies will need to offset those costs.”
44. The Interim Guidance does not, however, allow an agency to treat consumer cost savings or other benefits of new or repealed rules as offsets to costs incurred by regulated entities. For example, it states that energy cost savings to consumers from rules requiring appliance manufacturers to make more energy efficient equipment “would not be counted as offset to costs” incurred by those manufacturers.
45. The Interim Guidance states that, in general, agencies cannot base the estimated cost savings of repealing an existing rule on the regulatory impact analysis (RIA) produced when the rule was issued. This direction requires agencies to undertake new cost estimates for each existing rule considered for elimination.
46. The Interim Guidance further states that agencies should not count the “sunk” (or already incurred) costs of repealed rules, but must instead count only those costs that would be incurred after the effective date of the repeal. Because often the bulk of the cost of existing rules (such as the cost of new equipment purchases to meet pollution standards) already have been incurred, this requirement greatly magnifies the number of rules that need to be repealed to permit new rules to be promulgated consistent with the Executive Order.
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47. The Interim Guidance states that cost savings from repeal of a rule by one component of an agency may be used to offset the costs of a rule issued by another component of that agency. It further states that cost savings can be transferred between agencies if OMB approves the transfer.
48. A true and correct copy of the Interim Guidance is appended as Exhibit B. 49. On April 5, 2017, OMB issued “Guidance Implementing Executive Order 13771,” which “supplements” the Interim Guidance. 50. The Guidance confirms that the Executive Order generally requires agencies to “comply with [its] requirements by issuing two EO 13771 deregulatory actions … for each EO 13771 regulatory action,” and that “[t]he incremental costs associated with EO 13771 regulatory actions must be fully offset by the savings of EO 13771 deregulatory actions.” 51. The Guidance further provides that even when “a statute prohibits consideration of cost in taking a particular regulatory action,” an agency is “required to offset the costs of such regulatory actions through other deregulatory actions.” 52. The Guidance further requires agencies not to count benefits of regulatory actions as offsets to the costs, or the loss of benefits of deregulatory actions as offsets to the cost savings, of those actions. 53. A true and correct copy of the Guidance is appended as Exhibit C. 54. In a September 7, 2017, memorandum from OMB, concerning implementation of Executive Order 13771, OMB instructed federal agencies to “propose a net reduction in regulatory costs for FY2018” in their fall regulatory agendas.
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Administrative Procedure Act 55. Under the APA, an agency must publish a notice of proposed rulemaking in the
Federal Register and solicit public comment before adopting, modifying, or repealing a rule. 5 U.S.C. § 553. The APA defines “rule making” as the “agency process for formulating, amending, or repealing a rule.” Id. § 551(5). The APA defines “rule” to include “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” Id. § 551(4). The Executive Order (Sec. 4) largely tracks this definition of a rule.
56. In the APA, Congress directed federal agencies to undertake reasoned and evidence-based decisionmaking when exercising their delegated authority to promulgate rules. An agency must consider the factors that Congress has directed it to consider and cannot “rel[y] on factors which Congress has not intended it to consider.” Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983).
57. Under the APA, final agency action is judicially reviewable. A reviewing court shall “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
58. The governing regulatory statutes enacted by Congress do not authorize federal agencies to consider the costs of other regulations issued in the same fiscal year or of regulations issued in prior years when determining whether to promulgate new or repeal existing regulations. Those statutes do not authorize federal agencies to condition issuance of new regulations on the repeal of existing regulations to offset the new regulations’ costs.
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Application of the Executive Order 59. In promulgating a new rule (including a rule repealing an existing rule), each
agency must comply with the substantive and procedural requirements of the APA and the agency’s governing statute. In a rulemaking, an agency may make decisions based on costs only to the extent and in the manner Congress has provided for in the statute authorizing the authority to issue rules.
60. The agencies’ governing statutes do not authorize agencies to repeal an existing regulation, weaken a new regulation, or forgo or delay a new regulation that it would otherwise issue for the purpose of offsetting the costs of new regulations.
61. The Executive Order, by requiring that agencies promulgating new regulations take into account the costs of the new regulation relative to costs of existing regulations that need to be repealed to comply with the Executive Order, as well as the costs of other regulations issued and repealed in the same fiscal year, requires the agencies to consider factors that are not specified in and are inconsistent with their governing statutes, and to repeal, weaken, or delay regulations for an impermissible purpose.
62. Agencies that base their decisions whether to propose, issue, or repeal regulations on the mandates of the Executive Order are acting in violation of their governing statutes. Decisionmaking based on the factors set forth in the Executive Order also constitutes action that is arbitrary and capricious, contrary to law, and in excess of agency authority, in violation of the APA. The adverse impact of the Executive Order is particularly egregious when the new or repealed regulations are designed to address health, safety, or environmental concerns.
63. By instructing the agencies to consider factors and take deregulatory action for reasons beyond those authorized by the agencies’ governing statutes, the Executive Order exceeds
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presidential authority and usurps Congress’s legislative authority. And by directing agencies to violate the law, or rendering them unable to regulate as required by the law, the President, through the Executive Order, is violating his obligation to take care that the law be faithfully executed.
64. The Executive Order states that it shall be “implemented consistent with applicable law,” Sec. 5(b); sections 2 and 3 include similar language. If this language were interpreted to mean that the agencies may disregard the Executive Order when applicable statutes do not authorize the conditioning of regulation on the repeal of existing regulations with offsetting costs, the language would render the Executive Order without effect because the Executive Order cannot be implemented by any agency consistent with applicable law. Nonetheless, agencies are undertaking to comply with the Executive Order, and OMB is acting to enforce its mandate that costs of new regulations be offset by the repeals of existing regulations.
65. Plaintiffs would have no complete and effective remedy for an agency’s decision not to issue a regulation because of the Executive Order’s repeal and offset requirements, although that decision would be based on factors unauthorized by the governing statute or the APA, because plaintiffs would lack an identifiable final agency action to challenge in the vast majority of cases. And even if an agency decision not to regulate were disclosed and a successful legal challenge could be brought, a subsequent court order vacating the agency’s ultra vires decision could not undo the regulatory delay caused by the unlawful decision.
66. When it issued the spring 2017 Unified Agenda of Regulatory and Deregulatory Actions, OMB stated that “[a]gencies withdrew 469 actions proposed in the Fall 2016 Agenda” and moved 391 previously active actions to “long-term” or “inactive” categories, as a step toward complying with Executive Order 13771. OMB, Current Unified Agenda of Regulatory and Deregulatory Actions, https://www.reginfo.gov/public/do/eAgendaMain (July 20, 2017).
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67. In December 2017, OMB stated that federal agencies in 2017 had withdrawn or delayed 1,579 regulatory actions. See OMB, Current Regulatory Plan and the Unified Agenda of Regulatory and Deregulatory Actions, https://www.reginfo.gov/public/do/eAgendaMain (Dec. 14, 2017). OMB directly attributed these actions to Executive Order 13771. See OMB, Regulatory Reform: Two-for-One and Regulatory Cost Caps, https://www.reginfo.gov/ public/do/eAgendaEO13771 (Dec. 14, 2017).
68. In addition to delays and withdrawals, OMB reported the “Results” of implementing the Executive Order: “Agencies issued 67 deregulatory actions and only 3 regulatory actions.” Id.
69. The following examples demonstrate the adverse effects of the Executive Order on plaintiffs and their members, as well as how the Executive Order directs agencies to act unlawfully and why it is unconstitutional.
A. Motor Vehicle Safety 70. The Motor Vehicle Safety Act was enacted “to reduce traffic accidents and deaths and injuries resulting from traffic accidents.” 49 U.S.C. § 30101. The Act mandates motor vehicle safety standards that are practicable, meet the need for motor vehicle safety, and are stated in objective terms. Id. § 30111(a). “Motor vehicle safety standard” means a minimum performance standard for motor vehicles or motor vehicle equipment. When prescribing such standards, NHTSA must consider all relevant, available motor vehicle safety information, and whether a proposed standard is reasonable, practicable, and appropriate for the types of motor vehicles or motor vehicle equipment for which it is prescribed and the extent to which the standard will further the statutory purpose of reducing traffic accidents and associated deaths. Id. § 30111(a), (b).
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71. The Motor Carrier Safety Acts of 1935 and 1984 require FMCSA to “prescribe requirements for … safety of operation and equipment of, a motor carrier; and … standards of equipment of, a motor private carrier, when needed to promote safety of operation.” 49 U.S.C. § 31502(b). Safety standards must, “[a]t a minimum … ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely …; (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators; (5) an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial motor vehicle in violation of” various laws and regulations. Id. § 31136(a).
72. The Executive Order, by requiring that safety regulations issued under the Safety Acts take into account cost—the cost of a new safety standard, that cost in relation to the costs of existing standards or other regulations to be repealed, and the costs of any other standards issued or repealed in that fiscal year—requires the agencies to add a consideration not among the considerations specified in the Safety Acts.
73. For example, pursuant to their authority under the two Safety Acts, and in light of the numerous studies concluding that the severity of a crash increases with increased travel speed, NHTSA and FMCSA in September 2016 proposed to require new multipurpose passenger vehicles, trucks, buses, and school bus vehicles with a gross vehicle weight rating of more than 26,000 pounds to be equipped with speed-limiting devices, and to require motor carriers operating such vehicles in interstate commerce to maintain functional speed-limiting devices set at not more than the maximum specified speed for the service life of the vehicle. 81 Fed. Reg. 61942 (2016).
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The comment period ended in December 2016. See 81 Fed. Reg. 78103 (2016). NHTSA and FMCSA estimate net benefits of $500 million to $5 billion annually from the rule, including fuel savings and the prevention of thousands of traffic injuries and deaths. 81 Fed. Reg. at 61945, 61961–64. They estimate that the rule will impose minimal cost on vehicle manufacturers related to the installation of speed limiters, but they estimate a social cost from lower travel speeds of $200 million to $1.5 billion annually. Id. Therefore, despite the proposed rule’s huge net benefits to society, including to plaintiffs’ members, the rule will fall within the scope of the Executive Order and cannot be finalized under that Executive Order unless two or more other regulations that impose equivalent or greater costs are repealed.
74. From February 2017 through July 2017, DOT indicated each month that Executive Order 13771 was affecting the timing of ongoing rulemakings: “As DOT rulemakings are being evaluated in accordance with Executive Orders 13771 and 13777, the schedules for many ongoing rulemakings are still to be determined, so we will not post an Internet Report for the month of May.” DOT, Significant Rulemaking Reports by Year, https://cms.dot.gov/regulations/significantrulemaking-report-archive (last visited Mar. 7, 2018). In July 2017, and after completion of the notice and comment process for the speed-limiter rule, NHTSA moved this rulemaking from its “current agenda” to its list of “long term actions,” listing the next action as “Undetermined” on a date “To Be Determined.”
75. Public Citizen has members, including Amanda Fleming, who have and will for years have a child who rides a school bus and would like the bus to be equipped with a speedlimiting device. The delay of the speed-limiter rule is depriving these members of the ability to use school buses with this desired feature.
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76. In another example, NHTSA in January 2017 proposed to require all new light vehicles to include crash-avoidance technologies known as vehicle-to-vehicle (V2V) communications, which will send information about a vehicle’s speed, heading, brake status, and other data to surrounding vehicles and receive the same information from other vehicles. 82 Fed. Reg. 3854, 3855–57 (2017). NHTSA expects V2V technology to identify and prevent potential crashes and to advance development of vehicle automation. Id. If finalized, the safety standard will be phased in over time, with costs that change over that period. Total estimated vehicle costs per year range from $2 to $5 billion ($135–$300 per vehicle). Id. at 3857. On the benefit side, the technology “could potentially prevent 424,901–594,569 crashes and save 955–1,321 lives [annually] when fully deployed throughout the light-duty vehicle fleet. Converting these and the accompanying reductions in injuries and property damage to monetary values, [NHTSA] estimate[s] that in 2051 the proposed rule could reduce the costs resulting from motor vehicle crashes by $53 to $71 billion (expressed in today’s dollars).” Id. at 3858. NHTSA estimates that the safety standard will have net positive benefits within 3–5 years. Id. at 3982–4000. Despite the huge net benefits to society, including benefits to plaintiffs’ members, the DOT will not be able to promulgate this safety standard without repealing two or more other regulations that impose equivalent or greater costs.
77. In proposing the V2V rule, NHTSA stated, “Without a mandate to require and standardize V2V communications, the agency believes that manufacturers will not be able to move forward in an efficient way and that a critical mass of equipped vehicles would take many years to develop, if ever.” 82 Fed. Reg. at 3854.
78. From February 2017 through July 2017, DOT indicated each month that Executive Order 13771 was affecting the timing of ongoing rulemakings: “As DOT rulemakings are being
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evaluated in accordance with Executive Orders 13771 and 13777, the schedules for many ongoing rulemakings are still to be determined, so we will not post an Internet Report for the month of May.” DOT, Significant Rulemaking Reports by Year, https://cms.dot.gov/regulations/significantrulemaking-report-archive (last visited Mar. 7, 2018). In July 2017, DOT moved this rulemaking from its “current agenda” to its list of “long term actions,” listing the next action as “Undetermined” on a date “To Be Determined.”
79. Public Citizen has members, including Amanda Fleming and Terri Weissman, who would like to purchase vehicles equipped with V2V communications when they purchase new cars in the next several years, but without a federal mandate, such vehicles will not be available. The delay of the V2V rule is depriving these members of the opportunity to purchase vehicles with this desired feature.
80. Until Executive Order 13771, the agency had intended to issue the speed-limiter rule and V2V rule; the Executive Order is delaying the rules, and the delays are causing injury to plaintiff Public Citizen’s members.
81. The Executive Order conditions DOT’s promulgation of the standards described above on the agencies’ ability to offset the costs of these safety regulations by repealing “at least two prior regulations,” Executive Order sec. 2(c), without taking into account the net benefits either of the new standards or the existing standards. To promulgate the speed-limiting-device regulation, the agencies would have to repeal regulations with costs of $200 million to $1.5 billion annually, without regard to the net benefits of the new regulation and the repealed regulations. To promulgate the V2V rule, DOT would have to repeal regulations with annual costs of $2 billion to $5 billion, again without regard to the net benefits of both the new and repealed regulations.
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82. The Executive Order requires the agencies, when engaged in rulemaking, to make decisions based on an impermissible and arbitrary choice—whether to issue a new standard at the cost of losing the benefits of two or more existing standards. To condition adoption of a vehicle safety standard on the repeal of two or more other standards or other types of regulations is arbitrary, capricious, an abuse of discretion, and contrary to the Safety Acts.
83. By instructing the agencies to repeal two or more standards for the purpose of adopting one, the Executive Order adds considerations inconsistent with the Safety Acts and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed. Public Citizen advocates for strong health and safety regulation by NHTSA and FMCSA, petitions NHTSA and FMCSA to issue new rules to protect health and safety, and comments on proposed NHTSA and FMCSA rules to urge NHTSA and FMCSA to craft rules that best protect consumers. Public Citizen’s members rely on Public Citizen to represent their interests with respect to vehicle safety. By making issuance of a new DOT rule contingent on repeal of two or more existing rules, the Executive Order requires the agency to reduce, delay, or forgo public protections, including vehicle-safety protections, to the detriment of Public Citizen and its members. Moreover, the Executive Order puts Public Citizen in the untenable position of choosing between either: (a) engaging in statutorily authorized and constitutionally protected advocacy in support of new motor vehicle and motor carrier safety standards, even though, for that advocacy to be successful, two or more existing rules must be repealed; or (b) forsaking this authorized and protected advocacy, to the detriment of Public Citizen and its members who have interests in motor-vehicle and motor-carrier safety.
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B. Transparency of Airline Ancillary Service Fees 84. In May 2014, DOT issued a notice of proposed rulemaking that proposed to require airlines and ticket agents to disclose at all points of sale the fees for certain basic ancillary services associated with air transportation consumers are buying or considering buying. See 79 Fed. Reg. 29970 (2014). DOT stated that “there is a need for rulemaking because we believe that consumers continue to have difficulty finding ancillary fee information.” Id. at 29977. Of the more than 600 consumers who submitted comments, more than 450 supported the proposed additional disclosure requirements. 82 Fed. Reg. 7536, 7537 (2017). DOT also received comments opposed to any disclosure requirement, including from Airlines for America (the trade association of the major airlines), the international airline trade association, and foreign and domestic air carriers. 85. On January 19, 2017, DOT issued a Supplemental Notice of Proposed Rulemaking (SNPRM) on the same topic, proposing to require air carriers, foreign air carriers, and ticket agents to clearly disclose to consumers at all points of sale customer-specific fee information, or itineraryspecific information if a customer elects not to provide customer-specific information, for a first checked bag, a second checked bag, and one carry-on bag wherever fare and schedule information is provided to consumers. See 82 Fed. Reg. at 7536. If an airline or ticket agent has a website that markets to U.S. consumers, the SNPRM proposed to require that the baggage fee information be disclosed adjacent to the fare at the first point in a search process where a fare is listed in connection with a specific flight itinerary. Id. The agency designated the proposed rule “significant” under Executive Order 12866. Id. at 7554. DOT provided a comment period for the proposal through March 20, 2017. Id. at 7536. 86. In the SNPRM, DOT “disagree[d] with airlines and airline associations” that had earlier commented that the facts before DOT “do not reflect consumer harm.” DOT stated that “we
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believe the additional time spent searching to find the total cost of travel and the additional funds spent on air transportation that might have been avoided if the consumer had been able to determine the true cost of travel up front are the harms suffered by consumers when basic ancillary service fees are not adequately disclosed.” Id. at 7540–41; see also id. at 7536.
87. On March 2, 2017, DOT issued a notice suspending the comment period for the SNPRM indefinitely. 82 Fed. Reg. 13572 (2017). From February 2017 through July 2017, DOT indicated each month that Executive Order 13771 was affecting the timing of ongoing rulemakings: “As DOT rulemakings are being evaluated in accordance with Executive Orders 13771 and 13777, the schedules for many ongoing rulemakings are still to be determined, so we will not post an Internet Report for the month of May.” DOT, Significant Rulemaking Reports by Year, https://cms.dot.gov/regulations/significant-rulemaking-report-archive (last visited Mar. 7, 2018).
88. In DOT’s spring 2017 regulatory agenda, DOT moved the baggage-fee disclosure rulemaking from the “proposed rule stage” to “long term actions,” listing the next action as “Undetermined” on a date “To Be Determined.” At the same time, OMB stated in the Unified Agenda of Regulatory and Deregulatory Actions that “[a]gencies withdrew 469 actions proposed in the Fall 2016 Agenda” and moved 391 previously active actions to “long-term” or “inactive” categories, as a step toward complying with Executive Order 13771. OMB, Current Unified Agenda of Regulatory and Deregulatory Actions, https://www.reginfo.gov/ public/do/eAgendaMain (July 20, 2017).
89. On December 5, 2017, DOT withdrew the proposal to require air carriers and ticket agents to clearly disclose to consumers certain information about fees for checked bags, wherever fare and schedule information is provided to consumers. See DOT, Notice of withdrawal of
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proposed rulemaking, 82 Fed. Reg. 58778 (2017). The 1-page Federal Register notice described the reason for the withdrawal as follows: “The Department’s existing regulations already provide consumers some information regarding fees for ancillary services. The withdrawal of this rulemaking corresponds with the Department’s and Administration’s priorities and is consistent with Executive Order 13771.” Id.
90. Currently, baggage-fee information is available on some websites but not others, and is not available in the manner proposed in the SNPRM.
91. The SNPRM stated DOT’s determination that consumer-friendly disclosure of baggage fees will save consumers time and enable them to make better informed purchasing decisions, but that such disclosure will not happen voluntarily. 82 Fed. Reg. at 7556–57, 7541.
92. Plaintiffs’ members, such as Public Citizen member Amy Allina, purchase airline tickets online and sometimes check baggage. They have to spend time searching for baggage-fee information, to figure out for themselves the true total cost of listed flights, and sometimes have not gotten accurate information or have misunderstood the information, given the way in which it is provided. They would benefit from having baggage-fee information easily accessible wherever fare and schedule information is provided, to allow them to easily search for and compare the true total cost of air travel among air carriers. Plaintiffs’ members are injured by having to spend more time searching to find the total cost of air travel than they would if DOT required baggage fee disclosure as proposed in the SNPRM.
93. Until Executive Order 13771, the agency had intended to issue this rule; the Executive Order is delaying the rule, and the delay is causing injury to plaintiff Public Citizen’s members.
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94. Executive Order 13771 requires DOT, when engaged in rulemaking, to make decisions based on an impermissible and arbitrary choice—whether to issue a new standard at the cost of losing the benefits of two or more existing standards. To condition adoption of a new rule on the repeal of two or more other rules or other types of regulations is arbitrary, capricious, an abuse of discretion, and contrary to law.
95. By instructing the agencies to repeal two or more standards for the purpose of adopting one, the Executive Order adds considerations inconsistent with the Federal Aviation Act and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
96. Public Citizen advocates for strong consumer protection regulations, including regulations requiring disclosures to inform consumer choice. Public Citizen’s members rely on Public Citizen to represent their interests with respect to consumer advocacy. By making issuance of a new Department of Transportation rule contingent on repeal of two or more existing rules, the Executive Order requires the agency to reduce, delay, or forgo public protections, including consumer protections, to the detriment of Public Citizen and its members. Moreover, the Executive Order puts Public Citizen in the untenable position of choosing between either: (a) engaging in statutorily authorized and constitutionally protected advocacy in support of new consumer protection rules, even though, for that advocacy to be successful, two or more existing rules must be repealed; or (b) forgoing this authorized and protected advocacy, to the detriment of Public Citizen and its members.
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C. Occupational Safety and Health 97. The Occupational Safety and Health Act (OSH Act) aims “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. § 651(b). It reflects Congress’s finding that “personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.” Id. § 651(a). 98. The OSH Act requires an occupational health standard involving “toxic materials or harmful physical agents” to “adequately assur[e], to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.” Id. § 655(b)(5). After a significant risk is identified, OSHA, an agency within the Department of Labor, must promulgate a standard that will eliminate that risk, unless doing so is infeasible in a particular industry. AFL-CIO v. OSHA, 965 F.2d 962, 973 (11th Cir. 1992). OSHA has a “duty to keep adding [protective] measures so long as they afford benefit and are feasible, up to the point where [it] no longer finds significant risk.” Bldg. & Constr. Trades Dep’t v. Brock, 838 F.2d 1258, 1269 (D.C. Cir. 1988). 99. Under the OSH Act, “feasibility” encompasses economic feasibility. Under the OSH Act, a “standard is economically feasible if the costs it imposes do not ‘threaten massive dislocation to, or imperil the existence of, the industry.’” Am. Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991) (quoting United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1265 (D.C. Cir. 1980)). It is infeasible if it would “threaten the existence or competitive structure of an industry.” Steelworkers, 647 F.2d at 1272.
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100. The Executive Order, by requiring that health regulations issued under the OSH Act take into account the cost of the new health standard, the cost in relation to the costs of existing standards to be repealed, and the costs of any other standards issued or repealed in that fiscal year, requires the agency to add considerations not among those exclusive considerations specified in the OSH Act.
101. For example, before the President issued Executive Order 13771, OSHA was considering whether to set a new occupational health standard for styrene, an industrial chemical that can harm workers’ respiration, eyes, and nervous system, and is classified by the Department of Health and Human Services’ National Toxicology Program as “reasonably anticipated to be a human carcinogen.” OSHA, Occupational Exposure to Styrene (Fall 2016), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201610&RIN=1218-AD09. The current federal permissible exposure limit is two to five times higher than the limits established by the Centers for Disease Control, the State of California, and the European Union. Setting a new standard would be a “significant regulatory action.” Therefore, to issue a proposed rule to update the limit, the DOL is required by the Executive Order to offset the costs by repealing “at least two prior regulations,” Executive Order sec. 2(c) and 3(a), and to compute the cost offset without taking into account the benefit either of the new standard or the existing ones to be repealed. In March 2017, OSHA withdrew this rulemaking.
102. Before Executive Order 13771, OSHA was developing a standard to protect health care employees and employees in other high-risk environments from exposure to pathogens that can cause significant infectious disease, such as tuberculosis, pandemic influenza, and SARS. 75 Fed. Reg. 24835 (2010). The standard would require employers to establish a comprehensive infection control program and control measures. OSHA had anticipated issuing a proposed rule in
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October 2017, but, to do so, OSHA would have been required by the Executive Order to offset the costs of this rule by repealing “at least two prior regulations,” Executive Order sec. 2(c) & 3(a)— and to compute the cost offset without taking into account the benefits either of the new standard or the existing standards to be repealed. In the spring 2017 regulatory agenda issued in July 2017, OSHA moved the rulemaking to “Long Term Action” and listed the date for the next action as “NPRM” on a date “To Be Determined.” Members of plaintiffs’ organizations, such as CWA member Denise Abbott and Public Citizen member Jonathan Soverow, work in healthcare facilities, are exposed to pathogens that can cause significant infectious disease, would benefit from an OSHA standard, and are injured by OSHA’s delay in issuing the standard.
103. In addition, in January 2017, OSHA granted citizen petitions requesting that OSHA adopt a safety standard to address prevention of workplace violence in healthcare. Before OSHA can enact any permanent health or safety standard, it must make a threshold finding that a place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices. Invoking this standard, OSHA’s Administrator, in granting the citizen petitions, stated that workplace violence is a serious occupational hazard that presents a significant risk for healthcare and social assistance workers. In December 2016, OSHA had issued a request for information regarding workplace violence in the healthcare industry, with a comment period ending on April 6, 2017. See 81 Fed. Reg. 88147 (2016).
104. Since the close of the comment period in April 2017, OSHA has taken no public action on the rulemaking regarding prevention of workplace violence. In December 2017, in OSHA’s fall regulatory agenda, OSHA moved the workplace-violence-prevention rulemaking to “long term actions,” listing the next action as “Undetermined” on a date “To Be Determined.”
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105. Members of plaintiffs’ organizations, such as CWA member Abbott, work in healthcare facilities and are exposed to the “significant” risks that an OSHA standard on prevention of workplace violence would address, which would be reduced by a OSHA standard. In addition, plaintiffs’ members, such as CWA member Ms. Abbott, would like education and training on prevention of workplace violence at their places of employment, including education and training in de-escalation techniques, which is not readily available to them. Training and education on preventing workplace violence would be available to her and other CWA members who work in healthcare if OSHA issued a safety standard, as it intended to do when it granted the citizen petitions in January 2017. The members’ lack of access to education and training in preventing workplace violence is thus caused by the delay attributable to Executive Order 13771.
106. Until Executive Order 13771, OSHA had intended to issue the rules described above; the Executive Order is delaying those rules, and the delay is causing injury to plaintiffs’ members.
107. The Executive Order requires the agency to make decisions based on an impermissible and arbitrary choice—whether to issue a new standard at the cost of losing benefits of two or more existing standards. To condition promulgation of an occupational safety and health standard on the repeal of two or more other such standards, or two other regulations, is arbitrary, capricious, an abuse of discretion, and contrary to the OSH Act. Likewise, to condition OSHA’s ability to regulate safety or health risks on identification of unrelated regulations of equal cost that the agency may be able to persuade some other agency to repeal is arbitrary, capricious, an abuse of discretion, and contrary to the OSH Act.
108. By conditioning OSHA’s ability to regulate safety and health risks on the Department of Labor’s repeal of two or more unrelated regulations of equal cost, the Executive
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Order adds considerations inconsistent with the agency’s and the courts’ longstanding interpretations of the OSH Act, and accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
109. CWA has advocated for health and safety improvements for workers in the OSHA rulemaking process. CWA represents nurses in a number of private hospitals across the country, as well as other workers in high-risk environments, whose health is at unnecessary risk without federal rulemaking on measures to protect health care employees and employees in other high-risk environments from infectious disease exposures to pathogens that can cause significant disease. Public Citizen likewise has in the past commented on OSHA proposed rules; it has also petitioned OSHA to issue new occupational safety and health rules and is currently contemplating petitioning OSHA to issue two new safety rules. The Executive Order puts CWA and Public Citizen in the untenable position of choosing between either: (a) engaging in statutorily authorized and constitutionally protected advocacy in support of new worker health and safety standards, even though, for that advocacy to be successful, two or more existing rules must be repealed; or (b) forsaking this authorized and protected advocacy, to the detriment of CWA, Public Citizen, and their members who have interests in worker health and safety. Because the Executive Order requires the agency, before it can issue either a proposed or final workplace safety standard, to identify two or more existing rules for repeal, compliance with the Executive Order slows or prevents the issuance of proposed rules and final rules, to the detriment of CWA, Public Citizen, and their members. Because the Executive Order requires the agency to repeal two or more existing rules as a condition of issuing a new workplace safety or health standard, and because the repealed rules must have combined costs equal to or higher than the new rule, compliance with the
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Executive Order decreases workplace safety and health, to the detriment of CWA, Public Citizen, and their members.
D. Mine Safety and Health 110. The Mine Safety and Health Act (MSH Act) was enacted to protect the health and safety of miners. 30 U.S.C. § 801(a) (“[T]he first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource—the miner.”). Mirroring the language of the OSH Act, the MSH Act requires a mine safety standard involving “toxic materials or harmful physical agents” to “adequately assure on the basis of the best available evidence that no miner will suffer material impairment of health or functional capacity even if such miner has regular exposure to the hazards dealt with by such standard for the period of his working life.” Id. § 811(a)(6). Further, the MSH Act also specifically provides that “[n]o mandatory health or safety standard promulgated under this subchapter shall reduce the protection afforded miners by an existing mandatory health or safety standard.” Id. § 811(a)(9). Regulations under the MSH Act are promulgated by MSHA, an agency within the Department of Labor. Id. § 811(a). 111. The Executive Order, by requiring that safety regulations issued under the MSH Act take into account cost—the cost of the new safety standard, the cost in relation to costs of existing standards to be repealed, and the costs of other standards issued and repealed that fiscal year—requires the agency to consider a factor in addition to those exclusive considerations specified in the MSH Act. 112. For example, to reduce mining deaths from pinning, crushing, or striking injuries to miners who work near certain mobile equipment, MSHA has proposed a rule requiring underground coal mine operators to equip that equipment with proximity detection systems, with
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a phase-in schedule for newly manufactured and existing equipment. 80 Fed. Reg. 53070 (2015). The comment period for the proposed rule is scheduled to close on April 10, 2017. 82 Fed. Reg. 9369 (2017). The agency estimates that the rule will both impose annualized costs of $16 to $18 million and create annualized benefits of $16 to $18 million, not including benefits that could not be quantified due to a lack of definitive information (such as savings to mine operators who would be able to avoid production delays typically associated with mine accidents). 80 Fed. Reg. at 53082. Because MSHA has determined that the rule qualifies as “significant,” the rule will fall within the scope of the Executive Order. The Executive Order will require the Department of Labor to offset the costs of the rule by repealing “at least two prior regulations,” Executive Order sec. 2(c) & 3(a), without taking into account the benefits to miner safety either of the new standard or the existing standards to be repealed. In its spring regulatory agenda issued in July 2017, MSHA moved the rulemaking to “Long Term Action,” with the “Next Action Undetermined” on a date “To Be Determined.”
113. The Executive Order requires the agency to make decisions based on an impermissible and arbitrary choice—whether to issue a new standard at the cost of losing the benefits of two or more existing standards. To repeal two or more standards for the purpose of adopting one would be arbitrary, capricious, an abuse of discretion, and contrary to the MSH Act. Because MSHA is not permitted by statute to reduce protections from existing standards, the Executive Order forces MSHA either to forgo new standards altogether or to make issuance of new standards contingent on repeal of unrelated regulations by another agency (within the Department of Labor or, with OMB’s permission, from outside the Department of Labor) to offset the cost of any new safety standard.
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114. By conditioning MSHA’s ability to issue new regulations on the Department of Labor’s repeal of two or more unrelated regulations of equal cost, the Executive Order adds considerations inconsistent with the underlying statutes and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
115. Public Citizen advocates for strong mine-safety protections, including through press statements, comments to MSHA, and advocacy before Congress. Because the Executive Order requires the agency, before it can issue either a proposed or final safety standard, to identify two or more existing rules for repeal, and because the Executive Order conditions issuance of a new safety regulation on the repeal of two or more existing rules, compliance with the Executive Order deters and prevents issuance of new MSH Act rules, to the detriment of plaintiffs and their members. The Executive Order puts Public Citizen in the untenable position of choosing between either: (a) engaging in statutorily authorized and constitutionally protected advocacy in support of new mine safety standards, even though, for that advocacy to be successful, two or more existing rules must be repealed; or (b) forsaking this authorized and protected advocacy, to the detriment of Public Citizen and its members.
E. Toxic Substances 116. The Toxic Substance Control Act (TSCA), as amended in 2016, is based on congressional findings that “human beings and the environment are being exposed each year to a large number of chemical substances and mixtures” that “may present an unreasonable risk of injury to health or the environment.” 15 U.S.C. § 2601(a).
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117. TSCA directs the administrator of the EPA to evaluate existing chemicals under a risk-based safety standard “without consideration of costs or other nonrisk factors.” Id. § 2604(b)(4)(A), (f).
118. For example, to prevent documented harms to developing fetuses, carcinogenic effects from all routes of exposure, and respiratory, nervous system, kidney, liver, and immune system effects, EPA proposed two rules in December 2016 and January 2017 that would phase out trichloroethylene (TCE), a highly toxic volatile organic compound, for use in vapor degreasing, aerosol degreasing, and spot cleaning in dry cleaning facilities. 82 Fed. Reg. 7432 (2017) (vapor degreasing); 81 Fed. Reg. 91592 (2016) (aerosol degreasing and spot cleaning). The comment periods closed on March 20, 2017, and February 14, 2017, respectively. The agency estimates that the vapor degreasing rule will impose costs of $30 million to $45 million annually but have benefits (including health protection benefits) that exceed costs by $35 million to $402 million annually, and that the aerosol degreasing and spot cleaning rule will impose costs of $170,000 annually but have benefits that exceed those costs by $9 million to $24.6 million annually. 82 Fed. Reg. at 7453; 81 Fed. Reg. at 91594. Both rules were classified as “significant,” 82 Fed. Reg. at 7458; 81 Fed. Reg. at 91622, and therefore fell within the scope of the Executive Order.
119. In another example, methylene chloride poses neurotoxicity, liver toxicity, and liver and lung cancer risks to workers, consumers, and bystanders where it is used, and NMethylpyrrolidone (NMP) poses health risks to pregnant women and women of child-bearing years. In January 2017, the EPA proposed a rule to regulate methylene chloride and NMP in paint removers. 82 Fed. Reg. 7464 (2017). When finalized, the rule will ban methylene chloride, for all consumer and most types of commercial paint removal, and the rule will either ban NMP or impose a series of restrictions such as limitations on the amount of the substances in paint removal
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products, requiring warning labels for consumers, and requiring commercial users to have worker protection programs in place, including specialized gloves, as well as other equipment and hazard communication. The rule was classified as a significant regulatory action and therefore fell within the scope of the Executive Order. In its spring 2017 regulatory agenda, EPA moved the rulemaking to “Long Term Actions,” and listed the next action as “Supplemental NPRM” on a date “To Be Determined.”
120. The Executive Order prohibits the EPA from promulgating these health regulations unless it offsets their costs by repealing “at least two prior regulations,” Executive Order sec. 2(c), and to compute the offset without taking into account the net benefits either of the new standards or the existing standards that will be repealed.
121. The Executive Order requires the EPA to make decisions based on an impermissible and arbitrary choice—whether to issue a new standard at the cost of losing the benefits of two or more existing standards.
122. By making adoption of a new TSCA standard contingent on repeal of two or more other regulations, the Executive Order adds considerations inconsistent with the TSCA and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
123. Members of Public Citizen, including member Amanda Fleming, NRDC, and CWA are and will be exposed to TCE, methylene chloride, and/or NMP, which present serious health risks. To protect their members and limit their exposure to toxic chemicals, Public Citizen and NRDC have long advocated for regulation of toxic substances, including advocacy for the 2016 TSCA amendments. NRDC has also advocated for effective, timely implementation of the
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TSCA and has formally urged EPA to do so through the rulemaking process. CWA similarly advocates for regulation of toxic substances that threaten the health of its members. The Executive Order puts plaintiffs in the untenable position of choosing between either: (a) engaging in statutorily authorized and constitutionally protected advocacy in support of new TSCA standards, even though, for the advocacy to be successful, two or more existing rules must be repealed; or (b) forsaking this authorized and protected advocacy, to the detriment of plaintiffs and their members who have interests in protection from toxic substances. TCE, for example, is present in at least one manufacturing facility where CWA members work, and if EPA adopts a rule regarding the human health risks of this substance, OSHA would normally follow with a rule protecting workers, including CWA members, from the substance’s risks in the workplace. Because the Executive Order requires EPA, before it can issue either proposed or final safety standards, to identify two or more for repeal, and because the Executive Order conditions issuance of a new rule on the repeal of two or more existing rules, compliance with the Executive Order deters and prevents issuance of new TSCA rules, to the detriment of plaintiffs and their members.
124. Until Executive Order 13771, the agency had intended to issue the rules described above; the Executive Order is delaying the rules, and the delay is causing injury to plaintiffs’ members.
F. Hazardous Materials Transportation, Federal Railroad Safety, and Federal Water Pollution Control
125. In the past several years, a surge in the transport of volatile and explosive crude oil by rail has led to catastrophic train accidents, causing fire balls, oil spills into rivers, destruction of a city’s downtown, and loss of lives. The National Transportation Safety Board has investigated rail accidents and recommended strengthening regulations to prevent future accidents and reduce the harm when accidents occur.
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126. DOT regulates rail safety under two overlapping statutes: (1) the Hazardous Materials Transportation Act (HMTA), which directs the Secretary of Transportation to “prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce,” 49 U.S.C. § 5103(b), and (2) the Federal Railroad Safety Act (FRSA), which authorizes the Secretary to issue regulations and orders “for every area of railroad safety,” 49 U.S.C. § 20103(a). PHMSA administers the HMTA, and the FRA administers the FRSA. 49 C.F.R. §§ 1.89, 1.97(b). PHMSA also has authority under the Federal Water Pollution Control Act to issue regulations requiring railroads and other facilities to submit and obtain approval of oil-spill response plans. 33 U.S.C. § 1321. Such plans must respond “to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil.” Id. § 1321(j)(5)(A)(ii).
127. In July 2016, PHMSA, in consultation with the FRA, proposed a rule to require railroads to submit and obtain approval of comprehensive oil-spill response plans, to share information about high-hazard flammable train routes and contents with state and tribal emergency response organizations, and to update boiling point testing procedures. 81 Fed. Reg. 50068 (2016). The agency estimates that the rule will provide net benefits by substantially reducing the incidents and severity of oil spills. Id. at 50114. The final rule was scheduled for July 2017. In July 2017, the agency delayed the rule to December 2017. In December 2017, the agency estimated that the final rule would be issued in July 2018.
128. Because the rule is classified as a significant regulatory action, id. at 50108, it is subject to the Executive Order. Therefore, to issue a final rule, DOT is required to offset its costs by repealing “at least two prior regulations,” Executive Order sec. 2(c) & 3(a), and to compute the
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offset without taking into account the net benefits of either the new regulation or the existing regulations to be repealed.
129. The Executive Order requires the agencies to make decisions based on an impermissible and arbitrary consideration—whether the new regulation is more important to rail safety than the combined benefits of two or more existing standards—that is nowhere specified in the governing statutes.
130. By conditioning issuance of one new rail safety regulation on the repeal of two or more existing rules, the Executive Order adds considerations inconsistent with the DOT’s underlying statutes and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
131. In the face of crude oil train disasters, NRDC has advocated on behalf of its members who live in the blast zone along rail lines on which hazardous crude oil is shipped. NRDC has commented on proposed rules that improve rail safety, advocated for legislation to require rules to reduce crude oil shipping hazards, and advocated for and commented on rules that will require the railroads to have comprehensive oil spill response plans. The Executive Order puts NRDC in the untenable position of choosing between either: (a) engaging in statutorily authorized and constitutionally protected advocacy in support of new rail safety standards, even though, for that advocacy to be successful, two or more existing rules must be repealed; or (b) forsaking this authorized and protected advocacy, to the detriment of NRDC and its members who have interests in rail safety. Because the Executive Order requires the DOT, before it can issue either proposed or final safety standards, to identify two or more existing rules for repeal, compliance with the Executive Order necessarily slows or effectively prevents the issuance of proposed rules and final
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rules, to the detriment of NRDC and its members. Because the Executive Order conditions the issuance of one new safety regulation on repeal of two or more existing rules with equal or higher combined costs, compliance with the Executive Order deters or prevents issuance of new rail safety rules, to the detriment of NRDC and its members.
132. Until Executive Order 13771, the agency had intended to issue this rule; the Executive Order is delaying the rule, and the delay is causing injury to NRDC’s members.
G. Energy Efficiency and Conservation 133. The Energy Policy and Conservation Act (EPCA) authorizes DOE to set energy conservation standards for various consumer products and certain commercial and industrial equipment. President Reagan signed into law the provisions of EPCA that establish appliance efficiency standards, while Presidents George H.W. Bush and George W. Bush signed into law strengthening legislation. See Pub. L. 100-12; Pub. L. 100-357; Pub, L. 102-486; Pub. L. 109-58; Pub. L. 110-140. DOE projects that national energy-efficiency standards completed through 2016 will save as much energy as the entire nation consumes in a year and that consumers will save $1 trillion on their utility bills by 2020 and $2 trillion by 2030.2 134. EPCA achieves these savings by providing that any new or amended energy conservation standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that DOE determines is technologically feasible and economically justified. 42 U.S.C. §§ 6295(o)(2)(A), 6313(a)(6)(A)(ii)(II). DOE must periodically review already established energy conservation standards, and any new or amended standard must result in significant conservation of energy. Id. § 6295(m), (o)(3)(B); see id.
2 See U.S. Dep’t of Energy, Saving Energy and Money with Appliance and Equipment Standards in the United States (2017), available at https://energy.gov/sites/prod/files/2017/01/f34/Applian ce%20and%20Equipment%20Standards%20Fact%20Sheet-011917_0.pdf.
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§ 6313(a)(6)(A)(ii)(II). In deciding whether a new or amended standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens, taking into account seven statutory factors: (1) the economic impact of the standard on manufacturers and consumers of the products subject to the standard; (2) the savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard; (3) the total projected amount of energy (or as applicable, water) savings likely to result directly from the standard; (4) any lessening of the utility or the performance of the covered products likely to result from the standard; (5) the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard; (6) the need for national energy and water conservation; and (7) other factors the Secretary of Energy considers relevant. Id. §§ 6295(o)(2)(B)(i)(I)–(VII); 6313(a)(6)(B)(ii). EPCA also contains an “anti-backsliding” provision that bars the agency from prescribing any standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. Id. §§ 6295(o)(1); 6313(a)(6)(B)(iii)(I).
135. The Executive Order requires DOE, when setting energy conservation standards, to make regulatory decisions based on factors other than the exclusive factors specified by EPCA, including the cost of the energy conservation standard in isolation from its cost-saving and pollution-reducing benefits, and the cost (but not the benefits) of an energy-efficiency standard in relation to the costs of unrelated regulations.
a. Conventional cooking products 136. For example, in June 2015, DOE proposed a rule under EPCA to amend the energyefficiency standards for residential conventional cooking products, such as stoves and ovens. 80
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Fed. Reg. 33030 (2015). In September 2016, DOE issued a supplemental notice of proposed rulemaking. 81 Fed. Reg. 60784 (2016). DOE was required by statute to publish a final rule no later than two years after the original proposal—that is, by June 2017. 42 U.S.C. § 6295(m)(3)(A). DOE estimates that the standard will impose an additional $42.6 million in increased equipment costs annually, but result in more than $293 million in energy bill savings for consumers, and more than an additional $88 million in reduced pollution benefits, for a net annual benefit of more than $339 million per year. 81 Fed. Reg. at 60789.
137. DOE has designated the cooking appliance standard as “Major” and with “EO 13771 Designation: Regulatory.” Therefore, notwithstanding the considerable net benefit to consumers and to the public, the Executive Order requires the agency, as a condition of issuing the new standard, to repeal “at least two prior regulations,” Executive Order sec. 2(c), and to offset its costs, computing the offset without regard to the net benefits either of the new standard or the existing regulations being repealed. In its 2017 fall regulatory agenda, DOE indicated that it planned to issue another supplemental notice of proposed rulemaking in October 2018, instead of a final rule as required by June 2017.
138. Some of plaintiffs’ members, such as NRDC members Karen Bain, Barbara Blau, Eduardo Pontoriero, and Jose Rivero, intend to purchase new residential cooking appliances, including stoves and ovens, in the next two to five years, and want to purchase reasonably priced, energy-efficient products. Similarly, plaintiff Public Citizen intends to purchase a new residential range and wants to purchase a reasonably priced, energy-efficient product. Energy-efficient stoves and ovens reduce the members’ and Public Citizen’s energy use and utility bills, and serve their interests in reducing their environmental footprints. In addition, some of plaintiffs’ members,
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including Mr. Pontoriero and Mr. Rivero, have economic and business interests in wider access to affordable energy-efficient ovens and stoves, with a broader range of features.
139. Plaintiffs’ members, including the NRDC members identified above, and Public Citizen have been unable to reliably identify and purchase stoves and ovens that are energy efficient. DOE’s proposed standard would require that all residential stoves and ovens marketed in the United States meet DOE’s new, stricter energy-efficiency standards. Executive Order 13771 is delaying the rule, and the delay is causing injury to plaintiffs’ members and plaintiff Public Citizen.
b. Commercial water heaters 140. In May 2016, DOE proposed a rule under EPCA to amend the energy-efficiency standards for commercial water heating equipment. 81 Fed. Reg. 34440 (2016). By law, DOE must publish a final rule no later than two years after this proposal—that is, by April 2018. 42 U.S.C. § 6313(a)(6)(C)(iii)(I). The rule is classified as a significant regulatory action, 81 Fed. Reg. at 34527, and it is subject to Executive Order 13771. 141. DOE estimated that the proposed standard for commercial water heating equipment would reduce energy use by 1.8 quadrillion British thermal units, or a savings of about 8 percent. 81 Fed. Reg. at 34445. DOE estimated that the proposed standard would increase annual equipment costs by $144 million, but provide annual benefits of $367 million in reduced equipment operating costs, and annual benefits from reduced air pollution of more than $200 million, with an annualized net benefit of more than $427 million per year. Id. at 34526. DOE calculated that the cumulative net present value of total commercial consumer savings from the proposed standard would be from $2.26 billion to $6.75 billion. DOE further calculated that the standard would result in cumulative emissions reductions of 98 million metric tons of carbon
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dioxide, more than 1000 tons of methane, and significant quantities of other air pollutants, providing air-pollution reduction benefits with a net present value of between about $1 billion and $10 billion. Id. at 34445.
142. Notwithstanding the proposed commercial water heating equipment standard’s considerable net benefits, the Executive Order requires DOE to offset the proposed standard’s costs, and to repeal “at least two prior regulations.” Executive Order sec. 2(c). In its 2017 fall regulatory agenda, DOE moved this rulemaking to its list of “long term actions,” listing the next action as “Undetermined” on a date “To Be Determined.”
143. Some of plaintiffs’ members, such as NRDC member R.J. Mastic, have a direct professional and business interest in having access to a wider degree of availability, affordability, and range of features on energy-efficient commercial water heating equipment. By, among other things, increasing the selection and reducing the costs of energy efficient products and encouraging manufacturers to develop more efficient technologies, energy-efficiency standards allow plaintiffs’ members to attract and better serve clients.
144. NRDC, Public Citizen, and their members benefit from improved appliance energy efficiency, including improved energy efficiency for residential conventional cooking products and commercial water heating equipment. Plaintiffs and their members use these products, and improved energy-efficiency standards will reduce their operating costs, including by reducing utility bills. In addition, reduced consumption of energy will lessen air pollution to which plaintiffs’ members are exposed and that adversely affects plaintiffs’ members’ health, recreational, aesthetic, and economic interests. Public Citizen and NRDC have long advocated for strong energy-efficiency standards. NRDC has submitted multiple rounds of formal public comments in support of stronger energy-efficiency standards for residential conventional cooking
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products and commercial water heating equipment. Moreover, the Executive Order puts plaintiffs in the untenable position of choosing between either: (a) engaging in statutorily authorized and constitutionally protected advocacy in support of new energy-efficiency standards, even though, for that advocacy to be successful, two or more existing rules must be repealed; or (b) forsaking this authorized and protected advocacy, to the detriment of plaintiffs and their members.
145. Plaintiffs and their members directly benefit from the significant energy savings and pollution reductions achieved through EPCA energy-efficiency standards. They are and will be harmed by implementation of Executive Order 13771, which has caused delay of the proposed standard for residential conventional cooking products and the proposed standard for commercial water heating equipment, and will likely weaken final regulations to avoid imposing regulatory costs that would need to be offset. Because the Executive Order requires DOE to identify two or more existing rules for repeal before DOE can issue either a proposed or final energy-efficiency standard, compliance with the Executive Order has delayed or prevented the issuance of these standards and other rules, to the detriment of plaintiffs and their members. Because the Executive Order conditions the issuance of one new energy-efficiency standard on repeal of two or more existing rules that have combined costs equal to or higher than the new rule, compliance with the Executive Order limits the adoption of new and more stringent energy-efficiency standards, to the detriment of plaintiffs and their members.
146. Until Executive Order 13771, DOE had intended to issue the rules described above; the Executive Order is delaying the rules, and the delay is causing injury to plaintiffs and their members.
147. As these examples show, the Executive Order requires the agency to make decisions based on an impermissible and arbitrary choice—whether to issue a new standard at the
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cost of losing the benefits of two or more existing standards. Because DOE is forbidden by statute to reduce protections from existing standards, the Executive Order forces DOE either to forgo new standards altogether for appliances such as residential stoves and ovens and commercial water heating equipment, or to repeal or convince some other agency to repeal unrelated regulations to offset the cost of any new standard.
148. By conditioning DOE’s issuance of one new rule on repeal of two or more existing rules, the combined costs of which offset the costs of the new rule, the Executive Order adds considerations inconsistent with the underlying statutes and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
H. Clean Air 149. Congress enacted the Clean Air Act to protect and enhance air quality “to promote the public health and welfare and the productive capacity of [the] population.” 42 U.S.C. § 7401(b)(1). The Act requires EPA to establish emissions standards and to review and update the standards to ensure they meet the statutory criteria and keep up with technological advances. Id. § 7411. The Clean Air Act has saved over 150,000 lives per year and spared more than 100,000 people per year from hospital visits from respiratory ailments like asthma and bronchitis. According to the EPA, in the Act’s first 40 years, benefits—in the form of longer lives, healthier children, greater workplace productivity, and ecosystem protection—outweighed costs by more than 30 to 1.3
3 EPA, The Benefits and Costs of the Clean Air Act from 1990 to 2020, available at https://www.epa.gov/sites/production/files/2015-07/documents/fullreport_rev_a.pdf (Apr. 2011).
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150. In the Clean Air Act, Congress directed EPA to establish several types of standards based on prescribed factors. For example, the Act directs EPA to promulgate national ambient air quality standards (NAAQS) for air pollution from numerous and diverse mobile and stationary sources, including emissions of such substances as ozone, particulate matter, and sulfur dioxide. Id. § 7409. The Act directs EPA to set primary NAAQS at levels “requisite to protect the public health” with “an adequate margin of safety.” Id. § 7409(b)(1). At five-year intervals, EPA must review and revise the NAAQS as appropriate to meet the controlling statutory standard. Id. § 7409(d)(1). The Act does not permit EPA to consider implementation costs in setting the NAAQS. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001).
151. The Clean Air Act also requires EPA to set new source emission standards for a wide range of industries and to review and update those standards every 8 years. 42 U.S.C. § 7411. EPA must require the best system of emission reduction that has been adequately demonstrated. In doing so, it is to take into account the cost of achieving emission reductions, as well as health and environmental impact and energy requirements. Id. § 7411(a)(1). EPA is allowed to consider costs only in this manner.
152. In addition, under the Clean Air Act, because greenhouse gasses are “air pollutants,” EPA had a duty to determine whether greenhouse gas pollution in the atmosphere endangers public health and welfare. Massachusetts v. EPA, 549 U.S. 497 (2007). In 2009, EPA made an endangerment determination, which was upheld in Coalition for Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012), cert. denied 134 S. Ct. 468 (2013). In light of this determination, when EPA determines that emissions from a category of mobile sources (e.g., cars, trucks, airplanes) “cause or contribute” to elevated atmospheric greenhouse gas levels, EPA has a mandatory obligation to promulgate a regulation controlling the emissions. E.g., 42 U.S.C.
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§ 7521(a)(1). The Executive Order unlawfully conditions EPA’s issuance of one new Clean Air Act rule on the repeal of two or more existing rules, the combined costs of which offset the costs of the new rule, in derogation of the Clean Air Act.
153. The Executive Order requires the agency to make an impermissible and arbitrary choice—whether to issue a new standard at the cost of the benefits of two or more existing standards.
154. By instructing EPA to repeal two or more regulations for the purpose of adopting one, the Executive Order adds considerations inconsistent with EPA’s underlying statutes and, accordingly, exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to take care that the laws be faithfully executed.
155. NRDC, for more than 45 years, has worked to protect its members’ lives, health, and welfare, advocating on behalf of its members for vigorous and effective implementation of the Clean Air Act. NRDC regularly advocates on behalf of its members in rulemakings over national standards, state implementation proceedings, and enforcement cases. NRDC has prevailed in dozens of cases challenging failures to perform mandatory duties or to meet statutory deadlines, and overturning regulatory standards and actions that are arbitrary, capricious, or contrary to law. NRDC has also supported EPA as an intervenor in many cases to defend EPA rules against challenges by regulated entities. NRDC’s members are adversely affected by the Executive Order because it prevents issuance, or causes the delay, weakening, or repeal, of critical life-saving and environment-protecting air pollution limits. The Executive Order puts NRDC in the untenable position of choosing between either: (a) engaging in statutorily authorized and constitutionally protected advocacy in support of new environmental protections, even though, for that advocacy
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to be successful, two or more existing rules must be repealed; or (b) forsaking this authorized and protected advocacy, to the detriment of NRDC and its members who have interests in environmental protection.
FIRST CAUSE OF ACTION (Non-statutory review of ultra vires action; violation of separation of powers) 156. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 157. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires. 158. The Constitution vests executive power in the President. U.S. Const., art. II. The President of the United States has only those powers conferred on him by the Constitution and federal statutes. 159. Federal legislation must be passed by both chambers of Congress before it may be presented to the President and, if signed, become law. U.S. Const., art. I. The President has no authority under the Constitution to amend federal statutes unilaterally. 160. By requiring agencies engaged in rulemaking to consider and take final action or to withhold final action based on factors that are impermissible and arbitrary under the governing statutes, the Executive Order purports to amend the statutes through which Congress has delegated rulemaking authority to federal agencies. 161. Such action by the President exceeds presidential authority and usurps legislative power conferred by the Constitution exclusively on Congress.
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162. Plaintiffs and their members will suffer irreparable injury if the Executive Order is not declared unlawful, and plaintiffs and their members have no adequate remedy at law.
163. The public interest favors entry of a declaration that the Executive Order is unconstitutional, in violation of the separation of powers, because the Executive Order prevents, weakens, delays, and eliminates regulations that protect plaintiffs and the public from harm.
164. Accordingly, the Executive Order violates the constitutional separation of powers and compliance with or enforcement of the Executive Order is ultra vires.
SECOND CAUSE OF ACTION (Non-statutory review of ultra vires action; violation of the Take Care Clause) 165. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 166. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires. 167. Under the Constitution, the President has duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. 168. The Take Care Clause is judicially enforceable against presidential action that undermines statutes enacted by Congress and signed into law. See, e.g., Angelus Milling Co. v. Comm’r of Internal Revenue, 325 U.S. 293, 296 (1945) (“Insofar as Congress has made explicit statutory requirements, they must be observed and are beyond the dispensing power of [the Executive Branch].”); Kendall v. United States ex. Rel. Stokes, 37 U.S. (12 Pet.) 524, 612–13 (1838). 169. The Take Care Clause limits the President’s power and ensures that he will faithfully execute Congress’s laws.
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170. Under the Constitution, the President lacks the authority to direct federal officers or agencies to act in derogation of the statutes that authorize them to promulgate rules.
171. The Executive Order directs agencies to take action contrary to numerous laws passed by Congress, including but not limited to the Motor Vehicle Safety Act, the Motor Carrier Safety Acts of 1935 and 1984, the OSH Act, the MSH Act, TSCA, HMTA, the FRSA, the Federal Water Pollution Control Act, the EPCA, the ESA, the Clean Air Act, and the APA.
172. Plaintiffs and their members will suffer irreparable injury if the Executive Order is not declared unlawful and in violation of the Take Care Clause. Plaintiffs and their members have no adequate remedy at law.
173. The public interest favors entry of a declaration that the Executive Order is contrary to law and unconstitutional, because the Executive Order prevents, weakens, delays, and eliminates regulations that protect plaintiffs and the public from harm.
174. Accordingly, the Executive Order is in violation of the Take Care Clause and compliance with or enforcement of the Executive Order is ultra vires.
THIRD CAUSE OF ACTION (Non-statutory review of ultra vires action by agency officials) 175. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 176. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires. 177. Congress has delegated authority to the agency defendants to administer specific programs to achieve public policy objectives, such as clean air, highway safety, workplace safety, protection of endangered species, and energy efficiency. As part of that authorization, Congress
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has given the agency defendants the authority to promulgate regulations to promote the objectives of the specific programs. Congress has not authorized the agency defendants to promulgate, modify, or weaken regulations to offset the costs of other, unrelated regulatory programs.
178. Neither the statutes from which the agency defendants derive their rulemaking authority nor the APA authorizes these defendants to delay, weaken, or forgo new regulations based on whether they can repeal two or more existing regulations to offset the new costs or to satisfy an annual cost cap.
179. The Executive Order directs these defendants to exercise their authority in ways that are arbitrary, capricious, an abuse of discretion, in violation of the governing statutes, and in violation of the APA, 5 U.S.C. § 706. The agency defendants cannot implement the Executive Order without violating the statutes from which they derive their rulemaking authority and the APA.
180. Plaintiffs and their members will suffer irreparable injury if the agency defendants comply with the Executive Order. Plaintiffs and their members have no adequate remedy at law.
181. The public interest favors barring the agency defendants from complying with the Executive Order because the Order is unconstitutional and compliance with it is contrary to law, and prevents, weakens, delays, and eliminates regulations that protect plaintiffs and the public from harm.
182. Because the Executive Order is unconstitutional and directs agencies to violate the law, this Court should declare that the Executive Order is of no force and effect and enjoin compliance with the order.
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FOURTH CAUSE OF ACTION (Non-statutory review of ultra vires action by director of OMB) 183. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 184. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires. 185. The director of OMB may act only pursuant to authority lawfully delegated by Congress or the President. 31 U.S.C. § 501 et seq. 186. Because the Executive Order violates the President’s authority under the Constitution and directs action contrary to law, implementation of the Executive Order by the director of OMB is ultra vires. 187. Plaintiffs and their members will suffer irreparable injury if the agency defendants comply with the Executive Order and OMB’s implementation of it. Plaintiffs and their members have no adequate remedy at law. 188. The public interest favors entry of an injunction barring implementation by OMB of the Executive Order and OMB’s Interim Guidance and Guidance because the Interim Guidance and Guidance, and the Executive Order on which they are based, are contrary to law, and prevent, weaken, delay, and eliminate regulations that protect plaintiffs and the public from harm. 189. Because the Executive Order is unconstitutional and directs agencies to violate the law, this Court should declare that the OMB Interim Guidance and Guidance implementing the Executive Order, as well as the Executive Order, are of no force and effect and enjoin the director of OMB from implementing the Executive Order.
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FIFTH CAUSE OF ACTION (Violation of the APA)
190. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs as if fully set forth herein.
191. The APA requires this Court to hold unlawful and set aside any agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).
192. The OMB Interim Guidance and Guidance, which implement section 2 of the Executive Order and purport to be binding on federal agencies, constitute final agency action under the APA.
193. The President lacks constitutional authority to issue the Executive Order and to direct the director of OMB to implement it, including by issuing the Interim Guidance and Guidance. The Interim Guidance and Guidance are arbitrary, capricious, an abuse of discretion, not in accordance with law, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, in contravention of the APA. Id.
194. Plaintiffs and their members will suffer irreparable injury if the director of OMB implements the Executive Order. Plaintiffs and their members have no adequate remedy at law.
195. The public interest favors entry of an injunction barring implementation of the Interim Guidance and Guidance because they violate the APA and are in excess of OMB’s authority, chill First Amendment activity, and stand as an obstacle to fulfillment of congressional mandates and purposes discharged through agency rulemaking.
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196. Because the Executive Order is unconstitutional and directs unlawful action, its

implementation by the director of OMB will cause other federal agencies to violate the APA and

numerous statutes, as discussed above. This Court should hold the Interim Guidance and Guidance

unlawful and set them aside, declare that they are of no force and effect, and enjoin the director of

OMB from implementing the Executive Order.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs pray that this Court:

(A) Declare the Executive Order in violation of the Take Care Clause, in excess of

presidential authority under Article II of the Constitution, an infringement on legislative authority,

and invalid; and

(B) Declare that defendants cannot lawfully implement or comply with sections 2 and

3(a) and (d) of the Executive Order;

(C) Declare unlawful and set aside the OMB Interim Guidance and Guidance;

(D) Enjoin the agency defendants, including the director of OMB, from complying with

the Executive Order;

(E) Grant such other relief as this Court may deem just and proper.

Dated: April 2, 2018

Respectfully submitted,

Michael E. Wall (CA Bar No. 170238) Cecilia D. Segal (CA Bar No. 310935) NATURAL RESOURCES DEFENSE
COUNCIL, INC. 111 Sutter Street, Floor 21 San Francisco, CA 94104 (415) 875-6100

/s/ Allison M. Zieve (DC Bar No. 424786) Scott L. Nelson (DC Bar No. 413548) Sean M. Sherman (DC Bar No. 1046357) PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street NW Washington, DC 20009 (202) 588-1000

56

Case 1:17-cv-00253-RDM Document 67 Filed 04/20/18 Page 58 of 88

Counsel for Natural Resources Defense Council, Inc.
Patricia M. Shea (DC Bar No. 367231) COMMUNICATIONS WORKERS OF AMERICA 501 3rd Street NW Washington, DC 20001 (202) 434-1100
Counsel for Communications Workers of America

Counsel for all Plaintiffs
Patti A. Goldman (DC Bar No. 398565) EARTHJUSTICE 705 2nd Avenue, #203 Seattle, WA 98104 (206) 343-7340
Counsel for all Plaintiffs

57

Case 1:17-cv-00253-RDM Document 67 Filed 04/20/18 Page 59 of 88 EXHIBIT A

L·I~~ G"u",,"~.',.'."..'."...9,,...,, ""''

Case 1:17-cv-00253-RDM Document 67 Filed 04/20/18 Page 60 of 88
Federal Register/ Vol. 82, No. 22 / Friday, February 3, 2017 / Presidential Documents

Presidential Documents

9339

Executive Order 13771 of January 30, 2017
Reducing Regulation and Controlling Regulatory Costs
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Budget and Accounting Act of 1921, as amended (31 U.S.C. 1101 et seq .). section 1105 of title 31, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. Purpose. It is the policy of the executive branch to be prudent and financially responsible in the expenditure of funds, from both public and private sources. In addition to the management of the direct expenditure of taxpayer dollars through the budgeting process, it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations. Toward that end, it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.
Sec. 2. Regulatory Cap for Fiscal Year 2017. (a) Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.
(b) For fiscal year 2017, which is in progress, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).
(c) In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law.
(d) The Director shall provide the heads of agencies with guidance on the implementation of this section. Such guidance shall address, among other things, processes for standardizing the measurement and estimation of regulatory costs; standards for determining what qualifies as new and offsetting regulations; standards for determining the costs of existing regulations that are considered for elimination; processes for accounting for costs in different fiscal years; methods to oversee the issuance of rules with costs offset by savings at different times or different agencies; and emergencies and other circumstances that might justify individual waivers of the requirements of this section. The Director shall consider phasing in and updating these requirements. Sec. 3. Annual Regulatory Cost Submissions to the Office of Management and Budget. (a) Beginning with the Regulatory Plans (required under Executive Order 12866 of September 30, 1993, as amended, or any successor order) for fiscal year 2018, and for each fiscal year thereafter, the head of each agency shall identify, for each regulation that increases incremental cost, the offsetting regulations described in section 2(c) of this order, and provide the agency's best approximation of the total costs or savings associated with each new regulation or repealed regulation.

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Federal Register/ Vol. 82, No. 22 / Friday, February 3, 2017 / Presidential Documents
(b) Each regulation approved by the Director during the Presidential budget process shall be included in the Unified Regulatory Agenda required under Executive Order 12866, as amended, or any successor order.
(c) Unless otherwise required by law, no regulation shall be issued by an agency if it was not included on the most recent version or update of the pub lished Unifi ed Regulatory Agenda as required under Executive Order 12866, as amended, or any successor order, unl es s the issuance of such regulation was approved in advance in writing by the Director.
(d) During the Presidential budget process, the Director shall identify to agencies a total amount of incremental costs that will be allowed for each agency in issuing new regu lations and repealing regulations for the next fiscal year. No regulations exceeding th e agency's total incrementa l
cost allowance will be permitted in that fiscal year, unless required by
law or approved in writing by the Director. The total incremental cost allowance may allow an increase or require a reduction in total regulatory cost.
(e) The Director shall provide the heads of agencies with guidance on the implementation of the requirements in this section. Sec. 4. Definition. For purposes of this order the term "regulation" or "rule" means an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency, but does not include:
(al regulations issued with respect to a military, national security, or foreign affairs function of the United States;
(bl regulations related to agency organization, management, or personnel; or
(cl any other category of regulations exempted by the Director. Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(il the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director relating to budgetary, administrative, or legislative proposals. (bl This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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Federal Register/ Vol. 82, No. 22 / Friday, February 3, 2017 / Presidential Documents

9341

(cl This order is not intended to, and does not , create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(FR Doc. 2017-02451 Filed 2-2-17; 11:15 am] Billing code 3295-F7-P

THE WHITE HOUSE, January 30, 2017.

Case 1:17-cv-00253-RDM Document 67 Filed 04/20/18 Page 63 of 88 EXHIBIT B

Case 1:17-cv-00253-RDM Document 67 Filed 04/20/18 Page 64 of 88

ADMINISTRATOR
OFFICE OF INFORMATION AND REGULATORY AFFAIRS

EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
February 2, 2017

MEMORANDUM FOR: REGULATORY POLICY OFFICERS AT EXECUTIVE DEPARTMENTS AND AGENCIES AND MANAGING AND EXECUTIVE DIRECTORS OF CERTAIN AGENCIES AND COMMISSIONS

FROM:

Dominic J. Mancini, Acting Administrator Office of Information and Regulatory Affairs

SUBJECT:

Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, Titled “Reducing Regulation and Controlling Regulatory Costs”

I. General Requirements
This interim guidance, in the form of Questions and Answers (Q&As), addresses the requirements in Section 2, “Regulatory Cap for Fiscal Year 2017,” of the Executive Order of January 30, 2017, titled “Reducing Regulation and Controlling Regulatory Costs” (EO). Specifically, the guidance explains, for purposes of implementing Section 2 in Fiscal Year 2017, the following requirements:
1) ”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.” Sec. 2(a).
2) “For fiscal year 2017, . . .the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget . . . .” Sec. 2(b).
3) “In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” Sec. 2(c).
In general, executive departments and agencies (“agencies”) may comply with those requirements by issuing two “deregulatory” actions (described below) for each new significant regulatory action that imposes costs. The savings of the two deregulatory actions are to fully offset the costs of the new significant regulatory action.

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In addition, beginning immediately, agencies planning to issue one or more significant regulatory action on or before September 30, 2017, should for each such significant regulatory action:
1) A reasonable period of time before the agency issues that action, identify two existing regulatory actions the agency plans to eliminate or propose for elimination on or before September 30, 2017; and
2) Fully offset the total incremental cost of such new significant regulatory action as of September 30, 2017.
Please consult with your Office of Information and Regulatory Affairs (OIRA) Desk Officer if you have any particular questions regarding the applicability or interpretation of the EO not addressed in these Q&As. The Office of Management and Budget (OMB) plans to issue further guidance regarding the application of EO for Fiscal Years 2018 and beyond soon. In addition, OMB may revise these Q&As.
Comments on this interim guidance should be provided to reducingregulation@omb.eop.gov by February 10, 2017.
II. Coverage
Q: Which new regulations are covered?
A: The EO’s requirements for Fiscal Year 2017 apply only to those significant regulatory actions, as defined in Section 3(f) of Executive Order 12866, an agency issues between noon on January 20 and September 30, 2017. This includes significant final regulations for which agencies issued a Notice of Proposed Rulemaking before noon on January 20, 2017. Significant guidance documents may also be covered (see below).
Please continue to follow the standard significance determination process outlined in Executive Order 12866. Regulations that affect only other Federal agencies (and not the public); that are issued with respect to a military, national security, or foreign affairs function of the United States; and that are related to agency organization, management, or personnel are not subject to Section 2’s requirements.
Q: What about rules that implement Federal spending programs?
A: In general, Federal spending rules that primarily cause income transfers from taxpayers to program beneficiaries (e.g., rules associated with Pell grants and Medicare spending) are considered “transfer rules” and are not covered by this EO. However, in cases where these rules impose requirements on non-Federal entities, such as reporting or recordkeeping, agencies would need to account for these costs. Please consult with your OIRA Desk Officer on these rules. See OMB Circular A-4 for a discussion of the distinction between transfers and costs generally.
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Q: Do Section 2’s requirements apply to significant regulatory actions of independent agencies?
A: No, the requirements of Section 2 apply only to those agencies required to submit significant regulatory actions to OIRA for review under EO 12866. Nevertheless, we encourage independent regulatory agencies to identify existing regulations that, if repealed or revised, would achieve cost savings that would fully offset the costs of new significant regulatory actions.
Q: Are new guidance/interpretive documents covered?
A: New significant guidance or interpretive documents will be addressed on a case-by-case basis. Consult with your OIRA Desk Officer before issuing new significant guidance or regulatory interpretations. Agencies should continue to adhere to OMB’s 2007 Memorandum on Good Guidance Practices. As always, agencies should ensure that such documents are the appropriate vehicle for the particular policy goal, and that it is clear that compliance with any agency guidance is voluntary. Any cost savings claimed for guidance or other documents must be specific and verifiable.
Q: Which existing regulatory actions, if repealed or revised, would be considered deregulatory actions, and thus qualify for savings?
A: Any existing regulatory action that imposes costs and the repeal or revision of which will produce verifiable savings may qualify. Meaningful burden reduction through the repeal or streamlining of mandatory reporting, recordkeeping or disclosure requirements may also qualify. Agencies should also confirm that they will continue to achieve their regulatory objectives after the deregulatory action is undertaken. Please consult with your OIRA Desk Officer regarding information collections or other actions you believe should qualify as deregulatory actions under Section 2.
Q: Do regulatory actions issued before January 20 that are vacated or remanded by a court after that date qualify for savings?
A: Generally no, based on the presumption that a court determined these regulatory actions were issued, at least in part, with insufficient legal basis. There may be individual cases, however, where we would consider counting such savings, and specifically request comment on this topic. As one example, the agency may be directed by a court, under remand, to modify a rule through full notice and comment rulemaking, in order address particular issues.
Q: Do regulatory actions overturned by subsequently enacted laws qualify for savings?
A: Generally yes. We will consider Acts of Congress that overturn final regulatory actions, such as disapprovals of rules under the Congressional Review Act, to operate in a similar manner as agency deregulatory actions for the purposes of the requirements of Section 2 of the EO.
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III. Accounting Questions
Q: How should costs be measured?
A: Costs should be measured as the opportunity cost to society. OMB Circular A-4 defines this concept.
Q: How should agencies account for deregulatory actions that do not outright repeal existing regulations but revise existing requirements to produce real cost savings?
A: OMB will address deregulatory actions that continue to allow agencies to meet regulatory goals on a case-by-case basis. Purely deregulatory actions that confer only savings to all affected parties generally will not trigger the requirement under Section 2(a) for the agency to identify two existing regulatory actions to be repealed. However, if such deregulatory actions impose costs on individuals or entities, agencies will need to offset those costs.
Q: Can effects such as future energy cost savings for rules that require the adoption of more energy efficient technologies be counted against the compliance costs of a regulatory action for purposes of Section 2(b) of the EO?
A: In most circumstances, such effects would not be counted as offsets to costs according to OIRA’s reporting conventions for benefit-cost analysis.
Q: What about costs that occur over different time periods?
A: All costs estimates should be annualized in accordance with OMB Circular A-4. While timing issues will be handled on a case-by-case basis, in general, the start and end points for the annualization of costs should be directly comparable across the new and corresponding repealed regulatory actions.
Q: Can agencies use previously estimated costs from an original Regulatory Impact Analyses (RIA) in determining the cost savings generated by an eliminated regulatory action?
A: In general, no. While the original RIA may have information that will be useful in calculating cost savings, the most current information available on projected cost savings (e.g., new information on the cost of operating compliance technologies) must be included to the extent feasible. Agencies are also strongly encouraged to use program evaluations and similar techniques to determine the actual cost and other effects of eliminating regulatory actions.
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Q: What costs of existing regulatory actions should be counted as cost savings from a deregulatory action?
A: All costs that would have occurred after the effective date of the repeal of the existing regulatory action should be the basis for the cost savings estimate. This means, for example, that agencies should not count sunk costs.
Q: How should costs that duplicate those in another regulatory action be addressed?
A: In general, costs should be counted only once, in the regulatory action that imposes the legally binding requirement resulting in those costs. Exceptions should be discussed on a case-by-case basis with your OIRA Desk Officer.
Q: How should agencies treat unquantified costs and cost savings?
A: These will be handled on a case-by-case basis. As a general matter, the weight assigned to unquantified effects will depend on their significance and degree of certainty. See OMB Circular A-4 for more information on unquantified costs.
IV. Process and Waiver Questions
Q: Which significant regulatory actions might qualify for individual waivers?
A: Emergencies addressing critical health, safety, or financial matters, or for some other compelling reason, may qualify for a waiver from some or all of the requirements of Section 2. Please submit requests for a waiver assessment to your OIRA Desk Officer prior to submitting the rule for OMB review under EO 12866.
Note that Section 2(b) of EO applies “unless otherwise required by law.” Agencies may proceed with significant regulatory actions that need to be finalized in order to comply with an imminent statutory or judicial deadline even if they are not able to identify offsetting regulatory actions by the time of issuance. In the unlikely case where your agency believes other regulatory actions, which are not needed to comply with an imminent statutory or judicial deadline, are required by law, please consult with your OIRA Desk Officer. In all cases, however, agencies should identify additional regulatory actions to be repealed in order to offset the cost of the new significant regulatory action, even if such action is required by law.
Q: Can regulatory and deregulatory actions be bundled in the same regulatory action?
A: Yes, under certain circumstances. In practice, many regulatory actions can both impose new requirements and remove or streamline existing requirements on the same regulated entities and within the same regulatory program. In this case, the agency must clearly identify the specific provisions that are counted within the regulatory and deregulatory portion of the rules, and the costs and cost savings associated with each. The net cost impact (the different
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between costs imposed and cost savings) of such rules will generally determine whether they are regulatory actions that need to be offset. Agencies, however, should avoid artificially bundling provisions that are not logically connected in a single regulatory action.
Q: What must agencies do to “identify” existing regulatory actions to be repealed?
A: At a minimum, the agency should identify all of the associated regulatory actions to be repealed, along with cost saving estimates, no later than the date of issuance of the corresponding new significant regulatory action. Agencies should confirm that they will continue to achieve their regulatory objectives (such as health or environmental protection). All of the regulatory actions slated for repeal but not yet finalized also must be included in the Unified Regulatory Agenda.
Q: Do deregulatory actions have to be finalized before new regulatory actions can be finalized?
A: Per Section 2(a), each agency must identify two existing regulatory actions to be repealed. For many significant regulatory actions, the most appropriate place for such an identification is in the preamble of the rule being issued for notice and comment or promulgated. To the extent feasible, regulatory actions should be eliminated before or on the same schedule as the new regulatory action they offset. In cases where finalizing an offsetting regulation is not possible, agencies should provide a plan for finalizing the offsetting regulation. The most appropriate place for such a plan is the preamble of the rule being issued. The plan should include a commitment to include the offsetting regulation in the next addition of the Unified Regulatory Agenda, with dates for any required regulatory actions and estimates of the associated cost savings.
Q: How does this EO interact with other EOs and guidance addressing regulatory activities?
A: All requirements under other EOs and implementing guidance (e.g., EO 12866 and OMB Circular A-4) remain applicable.
Q: Can savings be transferred within an agency?
A: Yes. The requirements of this EO apply agency-wide. Regulatory savings by a component in one agency can be used to offset a regulatory burden by a different component in that same agency.
Q: Can savings be transferred from other agencies?
A: Agencies that are not able to generate sufficient savings to account for new regulatory actions they must issue may submit a written request to the Director of OMB to transfer savings from another agency before they submit a regulatory action for review that does not contain the needed offset. However, if the Director does not concur with this request, the Agency must identify adequate offsets absent a waiver.
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Case 1:17-cv-00253-RDM Document 67 Filed 04/20/18 Page 70 of 88 Q: How does the regulatory cost cap in Section 2 of the EO affect the consideration of
regulatory benefits or other requirements under EO 12866? A: The regulatory cost cap has no effect on the requirements of EO 12866 or the consideration
of regulatory benefits in making regulatory decisions. The goal of the requirement to eliminate two existing regulatory actions for each new significant regulatory action is to provide a mechanism for agencies to identify and repeal outdated, ineffective, or unnecessary regulatory actions. Similar to fiscal spending caps, the goal of the regulatory cost cap is to provide a mechanism for the prudent management and control of regulatory costs imposed on society by agencies attempting to achieve regulatory benefits.
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M-17-21

EXECUTIVE OFFICE OF THE PRESIDENT 
 OFFICE OF MANAGEMENT AND BUDGET 

WASHINGTON, D.C. 20503 

April5,2017

MEMORANDUM FOR: REGULATORY POLICY OFFICERS AT EXECUTIVE DEPARTMENTS AND AGENCIES AND MANAGING AND EXECUTIVE DIRECTORS OF CERTAIN AGENCIES AND COMMISSIONS

FROM:

~ ~~~ Dominic J. Mancini, Acting Administrator \
Office of Information and Regulatory Affairs

SUBJECT:

Guidance Implementing Executive Order 13771, Titled "Redlcing Regulation and Controlling Regulatory Costs"

I.

Introduction

This guidance, in the form of Questions and Answers (Q&As), addresses the requirements of Executive Order (EO) 13771 , titled "Reducing Regulation and Controlling Regulatory Costs." It applies to Fiscal Years (FY) 2017 and beyond. This guidance supplements the Office of Management and Budget (OMB) interim guidance issued on February 2, 2017, titled "Interim Guidance Implementing Section 2 of the EO of January 30, 2017, Titled 'Reducing Regulation and Controlling Regulatory Costs."' While OMB' s Office of Information and Regulatory Affairs (OIRA) believes this guidance largely treats the subjects covered in the February 2, 2017 interim guidance in a consistent manner, where these two memoranda are in conflict, this guidance supersedes the previous guidance. It reflects OIRA's consideration of the comments received in response to the February 2, 2017, interim guidance. Comments sent by members of the public are available on Regulations.gov in docket ID OMB-2017-0002.

II.

General Requirements

The guidance explains, for purposes of implementing Section 2, the following requirements:

• "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." Sec. 2(a).
• "For fiscal year 201 7 ... the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget ...." Sec. 2(b).
• "In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations." Sec. 2(c).

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In general, executive departments or agencies ("agencies") may comply with those requirements by issuing two EO 13771 deregulatory actions (described below) for each EO 13771 regulatory action (described below). The incremental costs associated with EO 13771 regulatory actions must be fully offset by the savings of EO 13771 deregulatory actions.

In addition, agencies planning to issue one or more EO 13771 regulatory actions on or before September 30, 2017, should for each such EO 13771 regulatory action:

• Identify two existing regulatory actions the agency plans to eliminate or propose for elimination on or before September 30, 2017 in a reasonable period of time before the agency issues the EO 13 771 regulatory action; and
• Fully offset the total incremental cost of such EO 13771 regulatory action as of September 30, 2017.

Guidance on the requirements of Section 3(a) is forthcoming.

Beginning with FY 2018, Section 3(d) requires the Director of OMB to identify to agencies a total amount of incremental costs (or "regulatory cap" as stated in Section 2) for all EO 13771 deregulatory and EO 13771 regulatory actions finalized during the fiscal year. The total incremental cost imposed by each agency should not exceed the agency's allowance for that fiscal year, unless required by law or approved by the Director. The total incremental cost allowance may be an increase or reduction in total regulatory cost, and will be informed by agencies' draft submissions for the Regulatory Plan.

Please consult with OIRA if you have any particular questions regarding the applicability or interpretation ofEO 13771 not addressed in these Q&As.

Agencies should continue to comply with all applicable laws and requirements. In addition, EO 12866 remains the primary governing EO regarding regulatory planning and review. Accordingly, among other requirements, except where prohibited by law, agencies must continue to assess and consider both the benefits and costs of regulatory actions, including deregulatory actions, when making regulatory decisions, and issue regulations only upon a reasoned determination that benefits justify costs.

III.

Definitions

This section provides definitions for terms used in this guidance. The definitions should not necessarily be applied to other sections ofEO 13771 that this guidance does not cover, and do not replace definitions used in other EOs or statutes.

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Ql. What is an "agency"?
A: An "agency," unless otherwise indicated, means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5). A cabinet department is considered a single agency for purposes ofEO 13771 compliance.
Q2. What is an "EO 13771 regulatory action"?
A: An "EO 13771 regulatory action" is:
(i) A significant regulatory action as defined in Section 3(f) of EO 12866 that has been finalized and that imposes total costs greater than zero; or
(ii) A significant guidance document (e.g., significant interpretive guidance) reviewed by OIRA under the procedures of EO 12866 that has been finalized and that imposes total costs greater than zero.
For example, EO 13771 regulatory actions include negotiated rulemakings that are significant as defined in Section 3(f) of EO 12866, that have been finalized, and that impose total costs greater than zero.
Q3. What is a "significant guidance document"?
A: As defined in OMB's Final Bulletin for Agency Good Guidance Practices, a "significant guidance document" is a guidance document disseminated to regulated entities or the general public that may reasonably be anticipated to:
(i) Lead to an annual effect on the economy of$100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(ii) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(iii)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(iv)Raise novel legal or policy issues arising out oflegal mandates, the President's priorities, or the principles set forth in EO 12866, as further amended.
A significant guidance document does not include legal advisory opinions for internal Executive Branch use and not for release (such as Department of Justice Office of Legal Counsel opinions); briefs and other positions taken by agencies in investigations, pre-litigation, litigation, or other enforcement proceedings; speeches; editorials; media interviews; press materials; Congressional correspondence; guidance documents that pertain to a military or foreign affairs function of the United States (other than guidance on procurement or the import or export of non-defense articles and services); grant solicitations;
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warning letters; case or investigatory letters responding to complaints involving fact-specific determinations; purely internal agency policies guidance documents that pertain to the use, operation or control of a government facility; internal guidance documents directed solely to other Federal agencies; and any other category of significant guidance documents exempted by an agency in consultation and concurrence with the OIRA Administrator. In the list above, "internal" policies and guidance documents do not include those that materially affect an agency's interactions with non-Federal entities, even if nominally directed only to agency personnel. For example, an internal directive to field staff on how to implement a regulatory requirement could be a significant guidance document if it satisfied any of (i) through (iv) above.
If they satisfy the definition above, modifications to existing guidance and interpretative documents would be considered significant guidance documents.
Q4. What is an "EO 13771 deregulatory action"?
A: An "EO 13771 deregulatory action" is an action that has been finalized and has total costs less than zero. An EO 13771 deregulatory action qualifies as both: (1) one of the actions used to satisfy the provision to repeal or revise at least two existing regulations for each regulation issued, and (2) a cost savings for purposes of the total incremental cost allowance. EO 13771 deregulatory actions are not limited to those defined as significant under EO 12866 or OMB' s Final Bulletin on Good Guidance Practices.
An EO 13771 deregulatory action may be issued in the form of an action in a wide range of categories of actions, including, but not limited to:
• Informal, formal, and negotiated rulemaking; • Guidance and interpretative documents; • Some actions related to international regulatory cooperation; and • Information collection requests that repeal or streamline recordkeeping, reporting, or
disclosure requirements.
Significant proposed rules issued before noon on January 20, 2017, that are formally withdrawn by notice in the Federal Register and removed from the Unified Agenda of Regulatory and Deregulatory Actions may qualify as repeal actions, but do not qualify for cost savings.
Please consult with OIRA regarding other actions your agency believes should qualify as an EO 13771 deregulatory action.
QS. What does "offset" mean?
A: The term "offset" means at least two EO 13771 deregulatory actions have been taken per EO 13771 regulatory action and that the incremental cost of the EO 13771 regulatory action has been appropriately counterbalanced by incremental cost savings from EO 13771 deregulatory actions, consistent with the agency's total incremental cost allowance.
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Q6. What is a "statutorily or judicially required" rulemaking?

A: A statutorily required rulemaking is one for which Congress has provided by statute an explicit requirement and explicit timeframe for rulemaking. For example, a statute that states, an agency "shall issue nutrition labeling requirements within I0 years" ofthe statute's enactment date would be considered a statutorily required rule.

A judicially required rulemaking is one for which there is a judicially established binding deadline for rulemaking, including deadlines established by settlement agreement or consent decree.

Agencies should consult with OIRA to determine whether a rule falls within the definition of

a statutorily or judicially required rulemaking.

·

Q7. What is a rule issued with respect to a "national securityfunction" ofthe United States?

A: For the purposes ofEO 13771, a regulation issued with respect to a national security function is a regulation that satisfies the two following requirements:

(1) The benefit-cost analysis demonstrates that the regulation is anticipated to improve national security as its primary direct benefit; and
(2) (A) For regulations the agency considers legislative rules: OIRA and the agency agree the regulation qualifies for a "good cause" exception under 5 U.S.C. 553(b)(3)(B); or (B) For other regulations (including significant guidance) the agency and OIRA agree that applying the requirements ofEO 13771 to the regulation would be impracticable or contrary to public interest.

Q8. What is "total incremental cost"?

A: The term ''total incremental cost" means the sum of all costs from EO 13771 regulatory actions minus the cost savings from EO 13771 deregulatory actions.

IV.

Scope Questions

Q9. Which new regulations as defined in EO 13771 must be offset?

A: Agencies are required to offset EO 13771 regulatory actions issued after noon on January 20, 2017. This includes those EO 13771 regulatory actions that are rules finalizing a Notice of Proposed Rulemaking (or in certain instances an interim fmal rule; see Question 11 for a further discussion) issued before noon on January 20, 2017.

Agencies should use the existing significance determination process outlined in EO 12866 for determining whether an action is an EO 13771 regulatory action. Agencies should not assume that actions that appear, or have appeared, in the Unified Agenda ofRegulatory and

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Deregulatory Actions as nonsignificant have been determined by OIRA to be nonsignificant. Agencies should obtain an affirmative significance determination from OIRA before publishing regulatory actions.
Ql0. How are interim and directfinal rules treated?
A: In general, significant interim and direct final rules must be offset. However, a significant interim final rule or direct final rule may qualify for an exemption with respect to the timing for identifying and issuing the EO 13771 deregulatory actions.
Qll. How are significant rules thatfinalize interim final rules (IFR) treated?
A: If the final rule neither increases nor decreases the cost of the IFR, then the action does not need to be offset nor does it qualify as an EO 13771 deregulatory action. If the final rule includes changes that increase the cost of the IFR, then the final rule must be offset (however, if the final rule imposes only de minimis costs relative to the IFR, the final rule may qualify for an exemption). Ifthe final rule reduces the cost of the IFR, then the rule and the cost savings relative to the IFR may qualify as an EO 13771 deregulatory action.
Q12. Must agencies identify EO 13771 deregulatory actions/or significant advance notices ofproposed rulemaking (ANPRM)?
A: No. With respect to rulemaking, the requirements ofEO 13771 do not apply to pre-notice of proposed rulemaking activities such as ANPRMs.
Ql3. How are regulatory actions that implement Federal spending programs or establish fees and penalties treated?
A: In general, Federal spending regulatory actions that cause only income transfers between taxpayers and program beneficiaries (e.g., regulations associated with Pell grants and Medicare spending) are considered "transfer rules" and are not covered by EO 13771. Additionally, an action that establishes a new fee or changes the existing fee for a service, without imposing any new costs, does not need to be offset; nor does an action that establishes new penalties or fines or changes those already in existence.
However, in some cases, such regulatory actions may impose requirements apart from transfers, or transfers may distort markets causing inefficiencies. In those cases, the actions would need to be offset to the extent they impose more than de minimis costs. Examples of ancillary requirements that may require offsets include new reporting or recordkeeping requirements or new conditions, other than user fees, for receiving a grant, a loan, or a permit. Analogously, if an action reduces the stringency of requirements or conditions for transfer recipients or permit holders, the action may qualify as an EO 13771 deregulatory action. Also, an action that causes transfers that, for example, induce moral hazard or other inefficient behavior may need to be offset and an action that reduces such transfers may qualify as an EO 13771 deregulatory action.
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Please consult with OIRA on these actions, especially with regards to potential distortionary costs due to transfers. See OMB Circular A-4 for a discussion of the distinction between transfers and costs generally.
Q14. How are activities treated that are associated with regulatory cooperation or international standards?
A: Regulatory activities associated with regulatory cooperation with foreign governments that reduce costs to entities or individuals within the United States, including at the border, or otherwise lower the cost of regulations on the United States economy, may qualify as EO 13771 deregulatory actions. Activities associated with standard-setting that reduce costs to entities or individuals within the United States may also qualify as EO 13771 deregulatory actions. However, agency actions to harmonize with the standards of an international body or foreign government that increase costs on United States entities or individuals may need to be offset. OIRA recognizes such harmonization could also lead to operating efficiencies for businesses that agencies may be able to capture in their analysis of the benefits and costs of EO 13771 actions.
Agencies should consult OIRA on how to treat specific regulatory activities related to regulatory cooperation or international standard-setting.
Q15. Do regulatory actions overturned by subsequently enacted laws qualify for savings?
A: Generally, yes. OIRA considers Acts of Congress that overturn final regulatory actions, such as disapprovals of rules under the Congressional Review Act, to operate in a similar manner as agency EO 13771 deregulatory actions.
Q16. Do regulatory actions that are vacated or remanded by a court qualify as EO 13771 deregulatory actions?
A: If a regulatory action issued before noon on January 20, 2017, is vacated by a judicial order for which all appeals have been resolved, OIRA will consider on a case-by-case basis whether the regulatory action being vacated qualifies as an EO 13771 deregulatory action.
If an EO 13771 regulatory action was issued on or after noon on January 20, 2017, any judicial order for which all appeals have been resolved vacating the regulatory action, and any related subsequent agency action (such as a withdrawal of a vacated regulation from the Code of Federal Regulations in order to comply with the order), will not qualify as an EO 13771 deregulatory action. Any EO 13771 deregulatory actions used to offset a vacated EO 13771 regulatory action, however, would be available to offset other EO 13771 regulatory actions (after accounting for any sunk costs incurred in complying with the vacated action).
If a court permits a regulatory action to remain in effect after a judicial remand for further agency proceedings, such as through remand without vacatur, the remanded action remains in effect. Therefore, there is no action at the time of remand that could qualify as an EO 13771
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deregulatory action. In the same way that an agency complies with EO 12866 when issuing a subsequent agency action to revise a remanded regulatory action, an agency will similarly need to comply with EO 13771. A subsequent agency action may qualify as an EO 13771 deregulatory action if the subsequent agency action is deregulatory in nature, or may need to be offset if the action is a significant regulatory action that is final and that imposes costs (i.e., an EO 13771 regulatory action).
Agencies should notify OIRA of any judicial decisions that affect regulatory actions subject to EO 13771.
Ql 7. What happens if an EO 13 771 deregulatory action is remanded or vacated by a court?
A: As in the answer to the previous question, OIRA recognizes the inherent case-by-case nature of the issues raised by the potential remand or vacatur of an EO 13771 deregulatory action. For example, such decisions may happen years after a rule is finalized, and may affect compliance with both the cost allowances and the repeal provisions established pursuant to EO 13 771. The agency should contact 0 IRA to determine how a remand or vacatur of an EO 13771 deregulatory action affects the agency's obligations under EO 13771.
Q18. Does EO 13771 apply to significant regulatory actions in which the law prohibits the consideration ofcosts in determining a statutorily required standard?
A: Because EO 13771 applies only to the extent permitted by law, agencies are still required to comply with their statutory obligations. Accordingly, if a statute prohibits consideration of cost in taking a particular regulatory action, EO 13771 does not change the agency's obligations under that statute. However, agencies will generally be required to offset the costs of such regulatory actions through other deregulatory actions taken pursuant to statutes that do not prohibit consideration of costs. Because each agency's obligations will differ depending on the particular statutory language at issue, these issues must be addressed on a case-by-case basis.
Please consult with OIRA regarding questions about particular statutory language and its relationship to EO 13771.
Q19. How do the requirements ofEO 13771 apply to significant regulatory actions issued by one agency that do not have the force and effect oflaw until adopted, with or without change, by another agency?
A: Because the agency authorities that establish such sequential or otherwise overlapping regulatory responsibilities differ by program, these actions will need to be handled on a case-by-case basis. However, agencies in these circumstances should always work together to avoid double-counting costs and cost savings; they should also work together as closely as possible when developing regulatory approaches for such programs. In cases where one agency's action does not qualify as an EO 13771 regulatory action because it is not a significant regulatory action under EO 12866, associated actions by other agencies may still be covered by EO 13771.
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Q20. Does EO 13771 apply to regulatory actions ofindependent regulatory agencies?

A: No. EO 13771 applies only to those agencies that meet the definition of "agency" in this guidance. Nevertheless, independent regulatory agencies are encouraged to identify existing regulations that, if repealed or revised, would achieve cost savings that would fully offset the costs of significant regulatory actions while continuing to meet the agency's statutory obligations.

V.

Accounting Questions

Q21. How should costs and cost savings be measured?

A: Except where noted in other portions of this guidance, costs should be estimated using the methods and concepts appearing in OMB Circular A-4. There are several types of impacts that, under OMB Circular A-4, could be reasonably categorized as either benefits or costs, with the only difference being the sign (positive or negative) on the estimates. In most cases where there is ambiguity in the categorization of impacts, agencies should conform to the accounting conventions they have followed in past analyses. For example, if medical cost savings due to safety regulations have historically been categorized as benefits rather than reduced costs, they should continue to be categorized as benefits for EO 13771 regulatory actions. Identifying cost savings, such as fuel savings associated with energy efficiency investments, as benefits is a common accounting convention followed in OIRA's reports to Congress on the benefits and costs of Federal regulations.

Cost savings estimates for EO 13771 deregulatory actions should follow the same conventions, but in reverse. Only those impacts that have been traditionally estimated as costs when taking a regulatory action should be counted as cost savings when taking an EO 13771 deregulatory action. For example, the medical cost savings described above as historically being counted as benefits when regulating should not then be counted as "negative cost savings" when deregulating.

An agency that has used different accounting conventions across different past analyses should consult with OIRA regarding the categorization of ambiguous impacts. In general, when faced with ambiguity, OIRA will attempt to achieve greater consistency in the categorization of similar types of costs and benefits across different agencies.

OIRA notes that rules that cause an increase in the resources used by Federal agencies to accomplish their programmatic goals may need to be offset, and rules that reduce the real resources used by Federal agencies to accomplish their goals may qualify as EO 13771 deregulatory actions. These types of impacts have long been considered regulatory costs under OMB Circular A-4, and are a component of the costs OIRA includes in its reports to Congress on the benefits and costs of Federal regulations.

For EO 13771 deregulatory actions that revise or repeal recently issued rules, agencies generally should not estimate cost savings that exceed the costs previously projected for the

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relevant requirements, unless credible new evidence show that costs were previously underestimated. On the other hand, a less recent regulatory impact analysis (RIA) may need revision to reflect, among other things, the fact that only costs occurring after the effective date of the regulatory repeal should be the basis for the cost savings estimate (i.e., agencies should not count sunk costs). Where an agency believes it can significantly improve upon a prior cost estimate, especially a recent one, through methodological enhancements, the agency should first discuss those methodologies with OIRA.
Q22. How should cost savings be determinedfor regulatory actions that expand consumption and/or production options?
A: For regulatory actions that expand consumption and/or production options-sometimes referred to as "enabling" regulatory actions or regulations-cost savings should include the full opportunity costs of the previously forgone activities. Opportunity cost in this context would equal the sum of consumer and producer surplus, minus any fixed costs. See OMB Circular A-4 for a more detailed discussion of these concepts.
Generally, "one-time" regulatory actions (i.e., those actions that are not periodic in nature) that expand consumption and/or production options would qualify as EO 13771 deregulatory actions.
There may be situations where this approach for determining the cost offsets generated by an enabling regulatory action is inappropriate. For instance, this approach may not be appropriate in certain circumstances where, if an agency were to fail to issue a regulatory action, a significant existing and ongoing economic activity would be prohibited. See Question 26. Cost offsets for such regulatory actions will be determined on a case-by-case basis.
Please consult with OIRA on all such non-routine regulations.
Q23. How does Executive Order 13771 apply to routine hunting and.fishing regulatory actions?
A. Routine hunting and fishing regulatory actions that establish annual harvest limits are not required to be offset, and are not eligible to be used as cost savings. This includes migratory bird hunting frameworks under the Migratory Bird Treaty Act and fishery management plans and amendments under the Magnuson-Stevens Fishery Conservation and Management Act. This exemption does not apply to regulatory actions that affect hunting and fishing activity that are not routine regulatory actions.
Q24. What base year should agencies use?
A: Agencies should adjust all estimates to 2016 dollars using the GDP deflator, as released on March 30, 2017, until further guidance is provided by OIRA.
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Q25. How should agencies calculate cost and cost savings/or the purpose ofEO 13771 accounting?
A: Agencies should calculate the present value (as of 2016) of costs for EO 13771 regulatory actions and cost savings for EO 13 771 deregulatory actions over the full duration of the expected effects of the actions using both 7 percent and 3 percent end-of-period discount rates.
Q26. In determining costs and cost savings under EO 13771, how should regulatory baselines be determined?
A: For the most part, agencies should follow the guidance about regulatory baselines provided in OMB Circular A-4. However, there can be uncertainty, which is recognized in OMB Circular A-4, regarding how best to capture the directive to assess impacts against the state of the world in the absence of the regulation. Provided below are two cases in which this uncertainty, or other challenges arising in the context of OMB Circular A-4, have often been addressed by performing analyses with multiple baselines. In each of these cases, OIRA has also provided guidance about how to determine costs or cost savings for the purposes of EO 13771:
(1) When a regulatory action finalizes an interim final rule (IFR), agencies are typically encouraged to present two sets of estimates: the overall regulatory impacts and the incremental impacts relative to the IFR. For purposes of determining costs or available cost savings under EO 13771, agencies :finalizing an IFR should include only the incremental impacts of the final rule, relative to the IFR.
(2) There are multiple Federal programs and policies-such as discharge general permitting under the Clean Water Act or Medicare quality performance tracking­ that are updated or renewed at regular intervals via rulemaking. Because these updates reliably occur, an assessment of the incremental changes between the previous and updated programs is often much more informative than a comparison of the updated programs against hypothetical discontinuance. Although multiple-baseline analysis is likely to continue to be encouraged in such cases for analysis conducted under EO 12866, for purposes ofEO 13771, costs or cost savings should be determined by the incremental changes between previous and updated programs. For example, if an agency is statutorily or judicially required to issue a regulation every five years to permit or prohibit an activity, and the agency previously issued a regulation to address the requirement, the appropriate baseline to use for estimating the costs or cost savings of the new regulation under EO 13771 is likely the existing regulation (or interim operating conditions if there is temporarily no regulation in effect).
Please consult with OIRA if you have questions regarding the appropriate baseline upon which to calculate costs or cost savings.
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Q27. How should agencies treat unquantified costs and cost savings?
A: As stated in OMB Circular A-4, agencies should use their best efforts to monetize the effects of both regulatory actions and deregulatory actions and, in some cases, significant guidance documents. Depending on the likely magnitude of the effects, such efforts may include conducting or sponsoring studies to develop monetized estimates. In proposed/draft regulatory actions expected to lead to EO 13771 regulatory actions or EO 13771 deregulatory actions agencies should, at a minimum, clearly identify any non-monetized costs or cost savings, explain the key reason(s) why monetization is not possible, discuss any information the agency has that is relevant to estimating such costs, and request information from the public to monetize such costs at the final stage.
The weight assigned to unquantified effects will depend on their significance and degree of certainty, and will be handled on a case-by-case basis. See OMB Circular A-4 for more information on unquantified costs.
Q28. How should agencies treat EO 13771 regulatory actions and EO 13771 deregulatory actions published by multiple agencies?
A: These will be handled on a case-by-case basis. Agencies should consult OIRA as early as possible to determine the appropriate treatment of the action.
Q29. Can agencies "bank" cost savings and deregulatory actions?
A: Yes. Agencies may bank both EO 13771 deregulatory actions and the associated cost savings for use in the same or a subsequent fiscal year towards EO 13771 's requirement to identify at least two existing regulations to be repealed (unless prohibited by law) and, separately, to comply with the total incremental cost allowance. Surplus EO 13771 deregulatory actions and cost savings do not expire at the end of a fiscal year and can be used in subsequent fiscal years.
For example, if an agency issues four EO 13771 deregulatory actions, the agency may apply them to up to two subsequent EO 13771 regulatory actions, including those occurring in a future fiscal year. Regardless, at the end of each fiscal year, an agency must be able to identify, and should have finalized, twice as many EO 13771 deregulatory actions as EO 13771 regulatory actions.
Similarly, if an agency issues two EO 13771 deregulatory actions with total cost savings of $200 million to offset the cost of an EO 13771 regulatory action with a cost of $150 million, the agency may bank the surplus cost savings of $50 million to offset the cost of another EO 13771 regulatory action, regardless of when the latter action is issued. See Questions 24 and 25 for accounting conventions that allow for appropriate comparison of costs and cost savings experienced at different time periods.
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Q30. Can EO 13771 deregulatory actions (and associated cost savings) be transferred within an agency?

A: Yes. The requirements ofEO 13771 apply agency-wide. An EO 13771 deregulatory action issued by a component in one agency can be used to offset an EO 13771 regulatory action issued by a different component in that same agency.

Q31. Can EO 13771 deregulatory actions (and associated cost savings) be transferred between agencies?

A: An agency that is not able to identify sufficient EO 13771 deregulatory actions for an EO 13771 regulatory action it intends to issue may submit a written request to the Director of OMB to assess whether the transfer ofEO 13771 deregulatory action credits (after consultation with the supplying agency) would be appropriate before submitting the EO 13771 regulatory action to OMB for review under EO 12866. However, ifthe transfer is not appropriate, the agency must identify adequate offsets absent an exemption.

VI.

Process Questions

Q32. How does EO 13771 affect the consideration ofregulatory benefits or other 
 requirements under EO 12866? 


A: EO 13771 does not change the requirements ofEO 12866, which remains the primary governing EO regarding regulatory review and planning. In particular, EO 13771 has no effect on the consideration of benefits in informing any regulatory decisions. For all EO 13771 regulatory actions and EO 13771 deregulatory actions, except where prohibited by law, agencies must continue to assess and consider both benefits and costs and comply with all existing requirements and guidance, including but not limited to those in EO 12866 and OMB Circular A-4.

Q33. Which EO 13771 regulatory actions might qualify for a full or partial exemption from EO 13771 requirements?

A: The following categories of EO 13771 regulatory actions may qualify for a full or partial exemption from EO 13771 's requirements: 1) expressly exempt actions; 2) emergency actions; 3) statutorily or judicially required actions; and 4) de minimis actions. These categories are not exhaustive. For any EO 13771 regulatory action an agency believes qualifies for an exemption under any of the circumstances provided below, agencies should submit exemption requests to OIRA prior to submitting the action to OMB for review under EO 12866 or prior to publication of the EO 13771 regulatory action if it was not subject to EO 12866 review.

• Expressly exempt- EO 13771 expressly exempts regulations issued with respect to a military, national security (see Question 7 above), or foreign affairs function, and regulations related to agency organization, management, or personnel. These actions qualify for a full exemption. See 5 USC 553.

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• Emergencies - EO 13771 regulatory actions addressing emergencies such as critical health, safety, financial, non-exempt national security matters, or for some other compelling reason, may qualify for an exemption. In most cases, exemptions for such rules will be granted with respect to the timing of required offsets, allowing the agency to address the emergency before identifying and issuing EO 13771 deregulatory actions. Agencies will generally still be required to offset such actions. If necessary, the costs of such actions, and the requirement to identify for repeal at least two existing regulations, will be moved to the subsequent fiscal year for purposes of determining EO 13771 compliance.
• Statutorily or judicially required- EO 13771 does not prevent agencies from issuing regulatory actions in order to comply with an imminent statutory or judicial deadline, even if they are not able to satisfy EO 13771 's requirements by the time of issuance. However, agencies will be required to offset any such EO 13771 regulatory actions as soon as practicable thereafter. In addition, this flexibility may not apply to discretionary provisions attached to EO 13771 regulatory actions required to comply with statutory or judicial deadlines.
• De minimis-EO 13771 regulatory actions with de minimis costs may qualify for an exemption. For example, if OIRA designates a proposed rule as significant under EO 12866 because it raises novel legal or policy issues, and the agency estimates the action would have present value costs of $50,000 spread over a large number of persons and/or entities, OIRA may exempt the action from some or all of the requirements of EO 13771.
Q34. Is a significantfinal regulatory action exemptfrom the requirements ofEO 13771 if the action was designated not significant at a prior stage?
A: Generally, no. Any regulatory action that is identified as significant at the final rule stage that imposes total costs greater than zero would need to be offset to comply with EO 13771, regardless ofthe determination in an earlier phase. Therefore, the agency should consult OIRA as soon as possible if it believes an action that was not determined to be significant at the draft or proposed rule stage may now be determined to be significant, perhaps due to substantive issues identified through public comment or further agency analysis.
Q35. How should agencies prioritize existing requirements to repeal or revise?
A: Agencies should follow the requirements in EO 13777 for prioritizing existing requirements to repeal or revise. EO 13777 establishes Regulatory Reform Task Forces in agencies, and directs those task forces to evaluate existing regulations and make recommendations to the agency head regarding their repeal, replacement, or modification, consistent with applicable law. EO 13777 directs each Regulatory Reform Task Force to identify regulations that:
• Eliminate jobs, or inhibit job creation; • Are outdated, unnecessary, or ineffective; • Impose costs that exceed benefits; • Create a serious inconsistency or otherwise interfere with regulatory reform initiatives
and policies;
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• Are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note), or the guidance issued pursuant to that provision, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or
• Derive from or implement EOs or other Presidential directives that have been subsequently rescinded or substantially modified.
EO 13777 further directs each Regulatory Reform Task Force to seek input and other assistance, as permitted by law, from entities significantly affected by Federal regulations, including State, local, and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations. Input from such public engagement may be used to prioritize recommendations to repeal or revise.
Finally, where the costs of an EO 13771 regulatory action will be incurred entirely or to a large degree by a certain sector or geographic area, the agency should prioritize EO 13771 deregulatory actions that affect the same sector or geographic area, to the extent feasible and permitted by law.
Q36. Can regulatory and deregulatory actions be bundled in the same action?
A: Yes, under certain circumstances. Many actions submitted to OIRA for review under EO 12866 consist of logically connected changes to multiple but related sections of the Code of Federal Regulations. For example, a rule exempting some categories of regulated entities from compliance with a previously issued regulation may also require eligible entities to submit additional documentation to demonstrate eligibility for the exemption. In these cases, it may be legitimate and appropriate to pursue such changes through a single "bundled" action, and this guidance is not meant to materially change agency decision making in this area. Where an agency combines such provisions, the cost impact (the difference between costs imposed and cost savings, per Question 21) of such rules will generally determine whether such actions are EO 13771 regulatory actions that need to be offset, or EO 13771 deregulatory actions. Agencies, however, should avoid artificially bundling provisions that are not logically connected in a single regulatory action. OIRA may determine that the regulatory and deregulatory portions of the rule should be considered separately for purposes ofEO 13771 compliance.
Agencies should consult with OIRA when considering bundling regulatory and deregulatory actions.
Q37. When and how should agencies identify EO 13771 deregulatory actions?
A: The agency's Unified Agenda ofRegulatory and Deregulatory Actions should reflect compliance with the requirements ofEO 13771, and should include, to the extent practicable, EO 13771 deregulatory actions that, when combined with EO 13771 deregulatory actions that are not regulations (such as Paperwork Reduction Act information collection reforms), are sufficient to offset those actions appearing in the Agenda that are or are expected to result
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in EO 13771 regulatory actions. At a minimum, the agency should identify all EO 13771 deregulatory actions, along with cost savings estimates, by the time it submits to OMB for review under EO 12866 the corresponding EO 13771 regulatory action. In the rare event that an agency is unable to identify sufficient EO 13771 deregulatory actions, OIRA will address such a situation on a case-by-case basis.
While each Federal Register notice should identify whether the regulation is an EO 13771 regulatory action, there is no need to discuss specific offsetting EO 13771 deregulatory actions within the same Federal Register entry. Additionally, offsetting the costs of regulatory actions to comply with the requirements ofEO 13771 should not serve as the basis or rationale, in whole or in part, for issuing an EO 13771 deregulatory action.
Q38. When must identified EO 13771 deregulatory actions befinalized?
A: To the extent practicable, agencies should issue EO 13771 deregulatory actions before or concurrently with the EO 13771 regulatory actions they are intended to offset. By the end of each fiscal year, including any carryover from previous fiscal years, agencies should have: (1) issued at least twice the number ofEO 13771 deregulatory actions as EO 13771 regulatory actions; and (2) appropriately offset the cost of all final EO 13771 regulatory actions issued. The offset should be consistent with their respective total incremental cost allowance for future fiscal years, and agencies are ,expected to maintain compliance, to the extent practicable, throughout the year. These requirements exclude those EO 13771 regulatory actions issued during the year for which either law prohibits compliance with EO 13771 or the agency received an exemption from OIRA. When an agency receives a partial exemption from OIRA (e.g., with respect to the timing ofEO 13771 deregulatory actions), the requirements should be addressed as soon as practicable. Agencies should plan in advance and leave sufficient time, if necessary, for OIRA to complete its review under EO 12866 or the Paperwork Reduction Act, and for agencies to publish in the Federal Register any EO 13771 deregulatory actions needed to comply with EO 13771 before the end of each fiscal year.
Q39. What happens if an agency is not infull compliance with the requirements ofEO
13771 at the end ofafiscal year?
A: If, by the end of a fiscal year, an agency does not finalize at least twice as many EO 13771 deregulatory actions as EO 13771 regulatory actions issued during the fiscal year, or has not met its total incremental cost allowance for that fiscal year, the agency must, within 30 days of the end of the fiscal year, submit for the OMB Director's approval, a plan for coming into full compliance with EO 13771 that addresses each of the following:
(1) The reasons for, and magnitude of, non-compliance; (2) How and when the agency will come into full compliance; and (3) Any other relevant information requested by the Director.
This excludes EO 13771 regulatory actions that are exempt or where compliance with 
 EO 13771 is prohibited by law. 

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Case 1:17-cv-00253-RDM Document 67 Filed 04/20/18 Page 88 of 88 OMB may recommend that an agency take additional steps to achieve compliance, such as publishing a notice in the Federal Register requesting ideas from the public on EO 13771 deregulatory actions to pursue. OMB may also request that agencies post plans approved by the Director. This guidance is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any pruty against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
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 Case 1:17-cv-00253-RDM Document 63 Filed 02/26/18 Page 1 of 52

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, INC., et al., Plaintiffs,
v. DONALD J. TRUMP, President of the United States, et al.,
Defendants.

Civil Action No. 17-253 (RDM)

MEMORANDUM OPINION AND ORDER In this action, Plaintiffs Public Citizen, Inc., Natural Resources Defense Council, Inc. (“NRDC”), and Communication Workers of America, AFL-CIO (“CWA”) challenge the lawfulness of Executive Order 13771, issued by President Trump on January 30, 2017, and two guidance documents issued by the Office of Management and Budget (“OMB”) implementing the Executive Order. Pending before the Court are the government’s motion to dismiss, Dkt. 15, and Plaintiffs’ cross-motion for summary judgment, Dkt. 16. The Executive Order imposes three new restrictions on the administrative process. It requires Executive Branch agencies to identify two existing regulations to be repealed for every new regulation, requires agencies to offset the private costs of compliance posed by new regulations by eliminating the costs associated with existing regulations, and imposes an annual regulatory cap (set at zero for 2017) on incremental regulatory costs that each agency may introduce. According to Plaintiffs, these requirements trammel on an array of federal statutes, all of which require federal agencies to consider statute-specific factors in deciding whether to promulgate or to repeal regulations, and none of which permits the implementing agencies—or

Case 1:17-cv-00253-RDM Document 63 Filed 02/26/18 Page 2 of 52
the President—to premise those decisions on the adoption or repeal of other, unrelated regulations.
Before reaching the merits of Plaintiffs’ challenge, however, the Court must first satisfy itself that it has Article III jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). As explained below, the Court concludes that Plaintiffs have failed to meet their burden of plausibly alleging or proffering facts that, if accepted as true, would establish that they have standing to sue. Plaintiffs approach the standing requirement from multiple tacks. They seek to establish “associational standing” by identifying an array of regulatory actions that, they contend, the Executive Order will likely delay or preclude and by arguing that their members will suffer harm as a result. But, as to some of those regulatory actions, they fail to identify particular members who will be harmed. As to others, they fail to allege facts sufficient to show that the relevant agency would have issued the rule absent the Executive Order. And, as to yet others, they fail plausibly to allege or otherwise to show that any delay of the regulatory action attributable to the Executive Order will substantially increase the risk that any of their members will be harmed or that any of their members will face a substantial probability of harm once such an increase in risk is taken into account. See Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1295 (D.C. Cir. 2007).
Alternatively, Plaintiffs contend that they have “organizational standing” to sue—that is, that they have standing to sue in their own right. They allege, in particular, that Executive Order 13771 has a chilling effect on their missions to encourage agencies to adopt regulations designed to protect public health and safety (Public Citizen), to protect the environment (NRDC), and to protect workers’ rights (CWA). Plaintiffs assert that, as things now stand, if they contemplate proposing a new rule, they must evaluate whether the cost of the new rule—the loss of two or
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more unknown existing rules—is worth the benefit of the new rule. The burden of merely considering the issue, however, is insufficient to establish organizational standing. And Plaintiffs do not assert that they have actually declined—or will actually decline—to pursue a new rule out of concern that the Executive Order will require the relevant agency to rescind two existing rules.
This is not to say that a plaintiff—or, indeed, that the present Plaintiffs—will never be able to establish standing to challenge the Executive Order. On the present record, however, the Court must conclude that it lacks jurisdiction. The Court, accordingly, will grant the government’s motion to dismiss, Dkt. 15, and will deny Plaintiffs’ motion for summary judgment, Dkt. 16.
I. BACKGROUND A. Executive Order 13771
On January 30, 2017, the President issued Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs.” Exec. Order No. 13771, 82 Fed. Reg. 9339. The Executive Order imposes three new restrictions on the authority of agencies to adopt or to propose new regulations: the “two for one” requirement, an “offset” requirement, and an “annual cap” on the net costs of private compliance with covered regulations. Each of these requirements is discussed only briefly in the Executive Order, leaving it to the Director of OMB to flesh out the requirements—and exceptions—in guidance and in the course of implementing the Executive Order.
Under the “two for one” requirement, “whenever an executive department or agency . . . publicly proposes for notice and comment or otherwise promulgates a new regulation,” the agency must “identify at least two existing regulations to be repealed.” Exec. Order No. 13771 § 2(a). This requirement works in tandem with the “offset” requirement, which requires agencies
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to offset “any new incremental cost associated with new regulations” by eliminating “existing costs associated with at least two prior regulations.” Id. § 2(c). Finally, the “annual cap” provision works in the aggregate and prohibits agencies from adopting new regulations that exceed their “total incremental cost allowance” for the year. Id. § 3(d). This cap, or total incremental cost allowance, is based on the costs of any new regulations adopted in the relevant year, less any cost savings achieved through the repeal of existing regulations. Id. The cap was set at zero for fiscal year 2017, id. § 2(b), and must be reset every year by the Director of OMB, id. § 3(d). The total cost allowance for the fiscal year may be zero, positive (i.e., permitting a net increase in total regulatory costs), or negative (i.e., requiring a net reduction in overall regulatory costs). Id. For 2018, the caps vary by agency from zero to negative $196 million in annualized costs. Office of Mgmt. & Budget, Regulatory Reform: Two-for-One Status Report and Regulatory Cost Caps 1–2 (2017) [hereinafter Two-for-One Report].1
The Executive Order states that it “shall be implemented consistent with applicable law” and that “[n]othing in th[e] [O]rder shall be construed to impair or otherwise affect . . . the authority granted by law to an executive department or agency.” Exec. Order No. 13771 § 5. Similar provisos appear within particular provisions. See id. § 2(a) (two-for-one requirement applies “[u]nless prohibited by law”); id. § 2(c) (offset requirement applies “to the extent permitted by law” and any elimination of costs must comport “with the Administrative Procedure Act and other applicable law”). The Executive Order also exempts certain types of regulations and authorizes the OMB Director to exempt other “categor[ies] of regulations.” Id. § 4.
1 Available at https://www.reginfo.gov/public/pdf/eo13771/FINAL_TOPLINE_All_ 20171207.pdf.
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B. OMB Guidance OMB issued interim guidance on February 2, 2017, and followed up with final guidance
on April 5, 2017. See Office of Mgmt. & Budget, Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 (2017) [hereinafter Interim Guidance]; Office of Mgmt. & Budget, Guidance Implementing Executive Order 13771 (2017) [hereinafter Final Guidance]. Several important clarifications and refinements are set forth in these guidance documents.
First, the Executive Order does not apply to all regulatory actions, but only to “significant regulatory action[s]” and “significant guidance document[s].” Final Guidance, Q&A 2. A regulatory action or guidance document is “significant” if it is likely to “[h]ave an annual effect on the economy of $100 million or more” or to meet other criteria.2 Exec. Order No. 12866 § 3(f), 3 C.F.R. 638 (1994). A “deregulatory action,” in contrast, is “an action” that “has been finalized” and the “total costs” of which are “less than zero.” Final Guidance, Q&A 4. Deregulatory actions need not qualify as “significant” and thus take a “wide[r] range” of forms than regulatory actions. Id.
Second, unlike prior executive orders, cf. Exec. Order No. 12866, Executive Order 13771 focuses only on compliance costs borne by regulated parties, without regard to the public benefit
2 In full, a “significant regulatory action” is an action likely (1) to “[h]ave an annual effect on the economy of $100 million or more” or to “adversely affect in a material way the economy, . . . the environment, public health or safety, or [s]tate, local, or tribal governments or communities;” (2) to “[c]reate a serious inconsistency or otherwise interfere with an action taken or planned by another agency;” (3) to “[m]aterially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof;” or (4) to “[r]aise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in [Executive Order 12866].” Exec. Order No. 12866 § 3(f), 3 C.F.R. 638 (1994). The OMB guidance incorporates the definition of “significant regulatory action” set forth in Executive Order 12866 and the definition of “significant guidance document” from OMB’s Final Bulletin for Agency Good Guidance Practices. See Final Guidance, Q&A 2–3. There are no material differences between these definitions.
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of the existing or proposed rule. Accordingly, a regulation that imposes $100 million in costs, but that saves $1 billion in losses, is not treated as generating a net savings of $900 million; rather, its adoption would be treated as a $100 million cost, and its repeal would count as $100 million in savings. See Final Guidance, Q&A 21, 32; Interim Guidance at 4. The guidance provides additional details on accounting. In calculating costs and savings for purposes of the Executive Order, agencies are required to determine the present value of the costs or savings of the regulatory action (or deregulatory action) “over the full duration of the expected effects of the action.” Final Guidance, Q&A 25. An agency’s “total incremental cost” for a fiscal year “means the sum of all costs from” significant regulatory actions and guidance documents “minus the cost savings from . . . deregulatory actions.” Final Guidance, Q&A 8.
Third, the Executive Order recognizes that certain federal statutes prohibit agencies from considering costs in determining whether a significant regulatory action is warranted. With respect to those regulatory actions, the OMB guidance acknowledges that the Executive Order cannot—and does not—“change the agency’s obligations under [such a] statute.” Final Guidance, Q&A 18. But, even though agencies are not permitted to consider costs in deciding whether to promulgate these regulations, they are still “generally . . . required to offset the costs of such regulatory actions through other deregulatory actions taken pursuant to statutes that do not prohibit consideration of costs.” Id. Likewise, if an agency faces an imminent statutory or judicial deadline for taking a regulatory action, the Executive Order “does not prevent” the agency from taking the regulatory action in a timely manner, even if it cannot first satisfy the requirements of the Executive Order. Final Guidance, Q&A 33. The agency must, however, “offset [the] regulatory action[] as soon as practicable thereafter.” Id.
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Fourth, agencies are permitted to “bank” cost savings and deregulatory actions “for use in the same or a subsequent fiscal year” to offset significant regulatory actions or guidance documents and to meet their “total incremental cost allowance[s].” Final Guidance, Q&A 29. An agency that, for example, takes four deregulatory actions in fiscal year 1 may take two covered regulatory actions in year 1 or in future fiscal years. Id. “Similarly, if an agency issues two . . . deregulatory actions with total cost savings of $200 million,” and issues a “regulatory action with a cost of $150 million” in fiscal year 1, “the agency may bank the surplus cost savings of $50 million to offset the costs of another . . . regulatory action” in a future fiscal year. Id. “To the extent practicable,” however, agencies must take any required offsetting “deregulatory actions before or concurrently with the . . . regulatory actions they are intended to offset.” Final Guidance, Q&A 38.
Finally, as counsel for the government acknowledged at oral argument, neither the Executive Order nor the OMB guidance provides a clear mechanism for notifying members of the public whether and when a proposed (or possible) regulatory action might be delayed or abandoned due to the requirements of the Executive Order. See Dkt. 56 at 64 (Tr. Oral Arg. 64:7–22) (“I suspect [that information on delayed or abandoned regulatory actions] will not be public.”). With respect to deregulatory actions, the Unified Agenda of Regulatory and Deregulatory Actions should “include, to the extent practicable, . . . deregulatory actions that . . . are sufficient to offset [any] regulatory actions” subject to the Executive Order. Final Guidance, Q&A 37. And when a regulatory action is allowed under the Executive Order, the Federal Register notice must indicate that the action is subject to the Executive Order. Id. But that Federal Register notice need not identify the required “offsetting . . . deregulatory actions.” Id. Furthermore, although the Executive Order requires that agencies identify offsetting deregulatory
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actions as a condition of taking new regulatory actions, the OMB guidance precludes agencies from relying on the Executive Order “as the basis or rationale, in whole or in part, for” taking the deregulatory action. Id. As a result, neither the Executive Order nor the OMB guidance provides a mechanism for notifying interested parties that an otherwise desirable regulation is being delayed or withheld in order to comply with the Executive Order or that a deregulatory action was initiated in order to comply with the Executive Order. C. Procedural History
On February 8, 2017, Plaintiffs filed this action against the President, the Director of OMB, the heads of thirteen federal agencies, and the United States. Dkt. 1. Plaintiffs are Public Citizen, which is a national consumer advocacy group, NRDC, which is a national environmental and public health organization, and the CWA, which is an international labor union. Dkt. 14 at 4–7 (Am. Compl. ¶¶ 12–14). Each of these organizations has hundreds of thousands of members and seeks to advance its members’ interests by, among other things, securing legal and regulatory protections through litigation and advocacy before federal agencies. Id. (Am. Compl. ¶¶ 12–14).
Two months after Plaintiffs filed suit, the government moved to dismiss the complaint for lack of standing and for failure to state a claim, Dkt. 9, and fourteen states filed an amicus brief in support of the government addressing the merits of the dispute, Dkt. 12. In response, Plaintiffs filed an amended complaint as of right that, among other things, added further allegations relating to their standing to sue.3 Dkt. 14 (Am. Compl.). The government has now renewed its motion to dismiss, Dkt. 15, and Plaintiffs have moved for summary judgment, Dkt. 16. The fourteen states have also renewed their amicus filing, Dkt. 19, and other amici have
3 For concision, the Court will refer to Plaintiffs’ amended complaint as “the complaint.”
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filed in support of the government, Dkt. 39, and in support of Plaintiffs, Dkt. 25; Dkt. 26; Dkt. 31; Dkt. 40.
The centerpiece of Plaintiffs’ case—and the foundation for their five claims—is their contention that Executive Order 13771 necessarily “impose[s] rulemaking requirements beyond and in conflict with the requirements of the” Administrative Procedure Act (“APA”) and “the statutes from which . . . federal agencies derive their rulemaking authority.” Dkt. 14 at 4 (Am. Compl. ¶ 8); see id. at 17–43 (Am. Compl. ¶¶ 63–124) (describing potential applications of the Executive Order that demonstrate “how the . . . Order directs agencies to act unlawfully and why it is unconstitutional”). As a result, Plaintiffs allege, the Executive Order (1) exceeds the President’s authority under Article II and usurps Congress’s power to legislate; (2) conflicts with the President’s duty to execute legislation under the Take Care Clause; and (3) directs federal agencies to take action that is ultra vires. Id. at 43–46 (Am. Compl. ¶¶ 125–51). Plaintiffs further allege (4) that the OMB guidance documents are also ultra vires and (5) that the guidance documents violate the APA. Id. at 47–49 (Am. Compl. ¶¶ 152–65). Plaintiffs seek a declaration that the Executive Order is unconstitutional and that it and the OMB guidance are invalid, and they seek an injunction barring the OMB Director and various agencies from implementing the Executive Order. Id. at 49 (Am. Compl. Prayer).
II. LEGAL STANDARD “The party invoking federal jurisdiction bears the burden of establishing” each of the elements of Article III standing, although “the manner and degree of evidence required” varies with “the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct” will often suffice. Id.; see also Owner-Operator Indep. Drivers Ass’n v.
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Dep’t of Transp., 879 F.3d 339, 346–47 (D.C. Cir. 2018). But, “[w]here a motion to dismiss a complaint present[s] a dispute over the factual basis of the court’s subject matter jurisdiction[,] . . . the court may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant.” Feldman v. FDIC, 879 F.3d 347, 351 (D.C. Cir. 2018) (internal quotation marks and citation omitted). Rather, the Court “must go beyond the pleadings and resolve any disputed issues of fact . . . necessary to a ruling []on the motion to dismiss;” in doing so, however, the Court must also ensure that Plaintiffs have been accorded “ample opportunity to secure and [to] present evidence relevant to the existence of jurisdiction.” Id. (internal quotation marks and citations omitted). Prior to discovery, the Court must accord Plaintiffs “the benefit of all reasonable inferences,” and, in the absence of “evidentiary offerings,” the Court must avoid “assessing the credibility of [their] allegations.” Id.
III. ANALYSIS “Because Article III limits federal judicial jurisdiction to cases and controversies, see U.S. Const. art. III, § 2, federal courts are without authority” to decide disputes unless the plaintiff has standing—that is, “‘a personal stake in the outcome of the controversy [sufficient] to warrant his invocation of federal-court jurisdiction.’” Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). As the Court will discuss below, standing doctrine includes various permutations. Across all contexts, however, “the irreducible constitutional minimum of standing contains three elements.” Lujan, 504 U.S. at 560. First, the plaintiff must allege (and must eventually prove) that she has suffered, or faces an imminent threat of suffering, an “injury in fact.” Id. Conjectural or hypothetical threats of injury will not suffice. Id. Second, the plaintiff must allege (and must
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eventually prove) facts sufficient to establish a “causal connection between [that] injury and the conduct complained of.” Id. In other words, the injury must “be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party.” Id. (internal quotation marks, alterations, and citation omitted). Third, the injury must be redressable “by a favorable decision.” Id. at 561. Again, speculation will not suffice; rather, the plaintiff must allege (and must eventually prove) that it is “likely” that judicial intervention will rectify or prevent the asserted wrong. Id.
When an association seeks to invoke the jurisdiction of a federal court, it can establish standing in one of two ways. It can assert “associational standing” to sue on behalf of its members. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). Or it can assert “organizational standing” to sue on its own behalf. See People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015) [hereinafter PETA]. Here, Plaintiffs attempt to satisfy both of these standards. The Court will first address Plaintiffs’ array of arguments for associational standing and will then turn to their single theory of organizational standing. A. Associational Standing
“Even in the absence of injury to itself, an association may have standing solely as the representative of its members.” Warth v. Seldin, 422 U.S. 490, 511 (1975). In Hunt v. Washington State Apple Advertising Commission, the Supreme Court set forth the criteria for associational standing. 432 U.S. 333. Under the so-called Hunt test, a plaintiff at the motion to dismiss stage must plausibly allege or otherwise offer facts sufficient to permit the reasonable inference (1) that the plaintiff has at least one member who “would otherwise have standing to sue in [her] own right;” (2) that “the interests” the association “seeks to protect are germane to [its] purpose;” and (3) that “neither the claim asserted nor the relief requested requires the
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participation of [the] individual members in the lawsuit.” Id. at 343. The government does not dispute that Plaintiffs’ allegations satisfy the second and third elements of the Hunt test, and the Court (which must satisfy itself that it has jurisdiction) agrees that neither factor poses a hurdle.
In contrast, the first element—the requirement that at least one member of the association have standing to sue in her own right—is not so easily satisfied. In an impressive effort to do so, Plaintiffs point to over a dozen putative regulatory actions that they contend would benefit their members and that, they further assert, have been or will be delayed, weakened, or barred as a result of Executive Order 13771 and the OMB guidance. For ease of discussion, the Court will consider these putative regulatory actions in categories corresponding to the reasons why Plaintiffs fail to meet the first element of the Hunt test.
1. Regulatory Actions Affecting Unidentified Members At the threshold, the first element of the Hunt test requires that the plaintiff-association identify at least one specific member who has suffered, or is likely to suffer, an injury in fact. Summers, 555 U.S. at 498; see also Sierra Club v. Morton, 405 U.S. 727, 735 (1972). “[I]t is not enough” for the association “to aver that unidentified members have been injured.” Chamber of Commerce, 642 F.3d at 199. With respect to several of the putative regulatory actions Plaintiffs identify, they have made no effort—either in their complaint or in the multiple declarations they have submitted—to identify a specific member who has suffered, or who is likely to suffer, an injury in fact due to the Executive Order’s effect on the regulatory action.4 As to some of these putative regulatory
4 These include (1) two Environmental Protection Agency (“EPA”) proposed rules that would “phase out trichloroethylene . . . for use in vapor degreasing, aerosol degreasing, and spot cleaning in dry cleaning facilities,” Dkt. 14 at 28 (Am. Compl. ¶ 90); (2) “critical life-saving and environment-protecting air pollution limits” from the EPA, id. at 42–43 (Am. Compl. ¶ 124); (3)
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actions, Plaintiffs might nonetheless contend that the consequences are so sweeping that “there is
a substantial likelihood that at least one member may have suffered an injury-in-fact.” Am.
Chemistry Council v. Dep’t of Transp., 468 F.3d 810, 820 (D.C. Cir. 2006). But, as the Court of
Appeals has cautioned, “[i]t is not enough to show . . . that there is a substantial likelihood that at
least one member [of the association] has standing.” Id. Instead, “[a]t the very least, the identity
of the party suffering an injury in fact must be firmly established.” Id. As a result, Plaintiffs
cannot rely on these putative regulatory actions to satisfy the first element of the Hunt test.
2. Unspecified Regulatory and Deregulatory Actions
Plaintiffs also assert that their members will be injured by agencies’ decisions to forgo or
weaken potential regulatory actions and by the repeal of existing regulations. With respect to
foregone or weakened regulatory actions, Plaintiffs have not alleged or otherwise proffered any
facts identifying specific regulatory initiatives that have been, or are likely to be, discarded or
weakened as a result of Executive Order 13771. Quoting a former Environmental Protection
Agency (“EPA”) Administrator, Plaintiffs do contend that it is “likely” that “the EPA and other
agencies will stop seeking new regulations so they can protect existing rules.” Dkt. 47 at 23.
a possible “occupational health standard for styrene, an industrial chemical that can harm workers[,]” from the Occupational Safety and Health Administration, id. at 23 (Am. Compl. ¶ 77); (4) a Mine Safety and Health Administration (“MSHA”) proposed rule “requiring underground coal mine operators to equip [certain mobile] equipment with proximity detection systems” designed to “reduce mining deaths from pinning, crushing, or striking injuries,” id. at 26 (Am. Compl. ¶ 84); (5) “potential” MSHA rules that would “protect miners against diesel exhaust emissions and silicosis,” Dkt. 16-17 at 8 (Wagner Decl. ¶ 20); (6) a citizen petition filed with the Food and Drug Administration relating to the tracking of tobacco sales, Dkt. 16-3 at 5–6 (R. Weissman Decl. ¶ 12); (7) a Department of Transportation withdrawn proposal “to require air carriers and ticket agents to clearly disclose to consumers certain information about fees for checked bags,” Dkt. 61 at 2, and other unspecified Department of Transportation rules, Dkt. 16 at 27; and, finally, (8) five Department of Housing and Urban Development withdrawn proposals, “including one entitled ‘Floodplain Management Protection of Wetlands Minimum Property Standards for Flood Hazard Exposure; Building to the Federal Flood Risk Management Standard,’” Dkt. 61 at 2–3.
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The Court must, of course, accept well-pleaded factual allegations as true. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). It may not, however, assume the truth of “mere conclusory statements,” Williams v. Lew, 819 F.3d 466, 472 (D.C. Cir. 2016), and it must reject vague and “overly speculative” predictions about “future events,” Arpaio, 797 F.3d at 21. The former EPA Administrator’s expectation and the other assertions that Plaintiffs offer are both speculative and conclusory. In the absence of some greater specificity, predictions that agencies are likely to stop issuing new regulations in order to comply with the Executive Order’s requirements are inadequate to establish associational standing.
Plaintiffs also allege that members of Public Citizen (including two identified members) will suffer injury because the Executive Order will cause agencies to “repeal regulations that protect their concrete interests,” Dkt. 14 at 4–5 (Am. Compl. ¶ 12), and that members of the CWA (including two identified members) will suffer injury because the Executive Order will “caus[e] agencies” to “repeal regulations that protect the members’ health and safety at work” or that otherwise protect “workplace rights,” id. at 7 (Am. Compl. ¶ 14). See also id. at 5–6 (Am. Compl. ¶ 13) (alleging that agencies will “repeal . . . important health [and] environmental regulations” due to the Executive Order). Neither the complaint nor the declarations offered by the two members of Public Citizen and the two members of the CWA, however, identify any specific regulations that have been repealed, or are likely to be repealed, as a result of the Executive Order. See Dkt. 16-7 at 2–3 (Fleming Decl. ¶¶ 4–6) (Public Citizen member asserting only that the Executive Order will likely cause agencies “to delay, weaken, or forgo” regulations); Dkt. 16-10 at 2–3 (T. Weissman Decl. ¶¶ 4–6) (same); Dkt. 16-5 at 2 (Abbott Decl. ¶ 7) (CWA member asserting only that the Executive Order may cause agencies to delay, weaken, or forgo “a new standard for workplace exposure to infectious diseases”); Dkt. 16-6 at
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2–5 (Bauer Decl. ¶¶ 6–8) (CWA member asserting only that various workplace protections would not have been obtained “without the existence of the [Occupational Health and Safety Administration’s] Lead Standard and CWA making sure Verizon was complying with the law”); see also Dkt. 16-2 at 3 (LeGrande Decl. ¶ 8) (noting that Bauer “would be harmed by the repeal of such an existing standard” but failing to aver that such a repeal was likely to occur). Absent greater specificity, such predictions are too abstract and too speculative to support standing. See Arpaio, 797 F.3d at 21.
In any event, it appears that Plaintiffs have abandoned their contention that their members will be injured by the repeal of beneficial regulations pursuant to the Executive Order. The government’s motion to dismiss argues, for example, that Plaintiffs’ asserted concern about the repeal of favorable regulations “is entirely speculative.” Dkt. 15-1 at 28. Plaintiffs, in turn, offer no response to this argument, and, indeed, make no mention of their allegation that specific members will be harmed by the repeal of regulations. See Dkt. 47 at 19–30 (omitting mention of injury due to repeal); see also Dkt. 16 at 26–30 (same). The government, in reply, concludes that “Plaintiffs [have] abandon[ed] any claim of injury on behalf of their members from the potential future repeal of regulations.” Dkt. 51 at 13. The Court agrees. See Local Civil Rule 7(b); see also Sandoval v. U.S. Dep’t of Justice, --- F. Supp. 3d ---, 2017 WL 5075821, at *6 (D.D.C. Nov. 2, 2017).
3. Delay of Regulatory Actions The lion’s share of Plaintiffs’ efforts is directed at showing that Executive Order 13771 has already delayed—and will continue to delay—the issuance of new regulatory actions.
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Plaintiffs offer eight examples of putative regulatory actions that, they say, have been or will be
delayed due to the Executive Order:5
(1) An unspecified regulation on greenhouse gas emissions. See Dkt. 47 at 25; Dkt. 16-13 at 9 (Winegrad Decl. ¶ 18).
(2) A citizen petition filed by Public Citizen requesting that the Food and Drug Administration (“FDA”) “withdraw approval of the use of medically important antibiotics in livestock and poultry.” Dkt. 16-3 at 5–6 (R. Weissman Decl. ¶¶ 12–13).
(3) A request for information on occupational exposure to infectious diseases in healthcare settings from the Occupational Safety and Health Administration (“OSHA”). See Dkt. 14 at 23–25 (Am. Compl. ¶¶ 78, 81); Dkt. 16 at 28; Dkt. 47 at 21–22.
(4) A proposed rule banning the use of certain chemicals in paint remover from the EPA. See Dkt. 14 at 28–30 (Am. Compl. ¶¶ 91, 95); Dkt. 47 at 22–23.
5 Two other proposed rules on which Plaintiffs rely cannot support standing because those rules are now final. According to Plaintiffs, an EPA rule regulating mercury discharges from dental offices was delayed due to the Executive Order. Dkt. 47 at 24; see Dkt. 16 at 27; Dkt. 16-4 at 6– 7 (Wetzler Decl. ¶¶ 13–14); Dkt. 47-3 at 2 (Heimbinder Decl. ¶ 8). As Plaintiffs concede, however, “delay of this rule is no longer ongoing.” Dkt. 47 at 24 n.7. Plaintiffs also claim standing based on the delay of a rule from the National Marine Fisheries Service designating certain areas along the East Coast as critical habitat for the Atlantic sturgeon. See Dkt. 14 at 38– 40 (Am. Compl. ¶¶ 113–17); Dkt. 47 at 25; Dkt. 16-4 at 9 (Wetzler Decl. ¶ 17); Dkt. 16-13 at 9– 11 (Winegrad Decl. ¶¶ 19–23). That rule, however, is also now final. See Endangered and Threatened Species; Designation of Critical Habitat for the Endangered New York Bight, Chesapeake Bay, Carolina and South Atlantic Distinct Population Segments of Atlantic Sturgeon, 82 Fed. Reg. 39,160 (Aug. 17, 2017) (to be codified at 50 C.F.R. pt. 226). As a result, the declaratory and injunctive relief Plaintiffs seek would not affect the risk of the underlying harms—physical injury due to mercury and diminished odds of observing Atlantic sturgeon in their natural habitat—that these rules address. “[P]ast harm” does not establish standing to seek “forward-looking relief.” Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau, 785 F.3d 684, 689 (D.C. Cir. 2015); see also City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (“[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” (internal quotation marks and citation omitted)). Plaintiffs have not argued, moreover, that this case falls within the exception to the mootness doctrine for “disputes capable of repetition, yet evading review.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007).
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(5) A proposed rule setting energy efficiency standards for residential conventional cooking products from the Department of Energy. See Dkt. 14 at 34–36 (Am. Compl. ¶¶ 106, 109); Dkt. 47 at 20–21, 25.
(6) A proposed rule mandating vehicle-to-vehicle (“V2V”) communications technology on light vehicles from the National Highway Traffic Safety Administration (“NHTSA”). See Dkt. 14 at 19–20 (Am. Compl. ¶¶ 68, 69); Dkt. 47 at 25.
(7) A proposed rule mandating speed-limiting devices on certain commercial vehicles from NHTSA. See Dkt. 14 at 18–20 (Am. Compl. ¶¶ 67, 69); Dkt. 47 at 25.
(8) A proposed rule requiring certain railroads that transport petroleum oil to develop oil spill response plans from the Pipeline and Hazardous Materials Safety Administration (“PHMSA”). See Dkt. 14 at 31–33 (Am. Compl. ¶¶ 98, 102); Dkt. 47 at 25.
Plaintiffs contend that the delay of each of these potential or proposed rules will prolong their
members’ exposure to the risks the putative rules are designed to mitigate, such as death, bodily
injury, or financial loss. Dkt. 47 at 24–25. And they argue that these risks would likely be
redressed by a favorable decision. Id. at 29–30.
Plaintiffs are correct that injuries that have not yet occurred, but that are “threatened,”
may at times satisfy the injury-in-fact requirement. Warth, 422 U.S. at 499. A threatened injury
“may suffice” if it “is ‘certainly impending,’ or [if] there is a ‘substantial risk’ that the harm will
occur.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409, 414 n.5 (2013)); see also Attias v. Carefirst, Inc., 865
F.3d 620, 626–27 (D.C. Cir. 2017) (“[T]he [Supreme] Court [has] clarified that a plaintiff can
establish standing by satisfying either the ‘certainly impending’ test or the ‘substantial risk’
test.”). But “[a]llegations of possible future injury” premised on “attenuated chain[s] of
inferences” will not suffice. Clapper, 568 U.S. at 409, 414 n.5 (internal quotation marks and
citation omitted); see also Sierra Club v. EPA, 755 F.3d 968, 973 (D.C. Cir. 2014) (“[Plaintiffs]
claiming increased health risks [must] demonstrate a substantial probability that they will be
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injured.” (internal quotation marks, alterations, and citations omitted)). The key to shifting an alleged “injury from ‘conjectural’ to ‘imminent,’” is the ability plausibly to aver or show that “there is a substantial probability of injury.” Chamber of Commerce, 642 F.3d at 200 (internal quotation marks, alterations, and citations omitted).
Plaintiffs cannot plausibly allege that the delay in finalizing the regulatory actions at issue here will certainly cause their members injury; instead the delay will, at most, increase the risk that the identified individuals might someday suffer an injury. Although the D.C. Circuit has recognized that “increases in risk can at times be ‘injuries in fact’ sufficient to confer standing,” Nat. Res. Def. Council v. EPA, 464 F.3d 1, 6 (D.C. Cir. 2006), the governing standard is not easily met. In evaluating a claim of standing based on an increased risk of harm, the Court must begin by “consider[ing] the ultimate alleged harm”—such as death, bodily injury, or financial loss—as the “concrete and particularized injury,” and must then “determine whether the increased risk of such harm makes injury to an individual citizen sufficiently imminent for standing purposes.” Attias, 865 F.3d at 627 (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 915 (D.C. Cir. 2015)). To satisfy this test, Plaintiffs must aver facts or proffer evidence sufficient to show both a “substantially increased risk of harm” and a “substantial probability of harm with that increase taken into account.” See Food & Water Watch, 808 F.3d at 914 (quoting Pub. Citizen, 489 F.3d at 1295). Moreover, because increased-risk-of-harm cases often depend on the government’s regulation of someone else, see Pub. Citizen, 489 F.3d at 1295, they implicate a further level of uncertainty: the asserted injury “hinge[s] on the response of the regulated . . . third party . . . and perhaps on the response of others as well,” Lujan, 504 U.S. at 562. To demonstrate that “the [government’s] actual action has caused the substantial risk of harm,” Clapper, 568 U.S. at 414 n.5, the plaintiff must, therefore, allege or
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show that the relevant third parties will react to the challenged action in such manner as to create that substantial risk, Lujan, 504 U.S. at 562. In considering such a causal chain, the Court must reject as overly speculative “predictions of future injury that are not normally susceptible of labelling as ‘true’ or ‘false.’” Arpaio, 797 F.3d at 21 (internal quotation marks and citations omitted).
In the present context, these requirements mean that Plaintiffs must plausibly allege or show, first, that the relevant agency intended to issue the regulation in question; second, that Executive Order 13771 will likely cause the agency to delay issuance of the regulation; third, that—with the relevant period of delay taken into account—an identified member of one of the associations will face a substantial probability of a concrete injury; and, finally, that the period of delay attributable to the Executive Order will substantially increase that risk of harm. As explained below, the Court concludes that Plaintiffs have not plausibly alleged that the relevant agencies otherwise intended to issue two of the eight regulatory actions they identify, and their allegations regarding a third putative regulatory action only barely, if at all, clear this first hurdle. With respect to the remaining five putative regulatory actions, however, Plaintiffs have met that burden, and have also plausibly alleged that the Executive Order has delayed, or is likely to delay, the regulatory action. They have not, however, plausibly alleged that at least one of their members faces a substantial risk of a concrete harm due to the delay in finalizing any of the identified regulatory actions.
a. Whether the Agency Otherwise Intended To Take the Regulatory Action Plaintiffs must first plausibly allege or show that the putative regulatory actions that they have identified would have been taken in the absence of Executive Order 13771. That is a difficult task because it implicates “how independent decisionmakers”—here, executive
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agencies—“will exercise their judgment.” Clapper, 568 U.S. at 413. The task is not impossible, however. Although mere speculation will not suffice, id. at 414, a plaintiff can establish the requisite likelihood of third-party action by relying on (1) the third party’s past practices, see Susan B. Anthony, 134 S. Ct. at 2345; (2) the third party’s representations concerning its future conduct, id.; and (3) “experience and common sense,” Attias, 865 F.3d at 628 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). In considering any such evidence or allegations, however, the Court must take care not to place itself in the role of policymaker or to second-guess the “broad and legitimate discretion” of the other branches of government. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006) (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989) (opinion of Kennedy, J.)). Accordingly, in the absence of clear markers—such as proposed rules or agency pronouncements—the Court should avoid speculating about how governmental entities “will exercise their discretion.” Clapper, 568 U.S. at 412; see id. at 410–12 (injury depended in part on whether the Attorney General and Director of National Intelligence would decide to surveil plaintiffs’ foreign contacts); DaimlerChrysler, 547 U.S. at 344 (injury depended in part on “how [state] legislators [would] respond to a reduction in revenue”); R.J. Reynolds Tobacco Co. v. FDA, 810 F.3d 827, 830 (D.C. Cir. 2016) (injury depended on whether the FDA would propose and issue a rule adverse to plaintiffs’ economic interests). Applying these standards, the Court will consider, in turn, each of the specific regulatory actions Plaintiffs have identified.
First, Plaintiffs contend that at least one member of NRDC is suffering a harm due to the delay of “rules to curb climate change.” Dkt. 47 at 25. NRDC member Gerald Winegrad avers that “global warming and [the] consequent sea level rise could deprive [him] of water supply, use of [his] land and home, and recreational opportunities.” Dkt. 16-13 at 8–9 (Winegrad Decl.
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¶ 17). He “believe[s] that regulation of greenhouse gas emissions is important to . . . prevent exacerbating the global warming problem and its effects on [him] and [his] property.” Id. at 9 (Winegrad Decl. ¶ 18). Finally, he expresses concern that the Executive Order “will reverse, halt or delay these crucial regulations, to [his] detriment.” Id. (Winegrad Decl. ¶ 18). Plaintiffs, however, have not identified any proposed rule or other specific putative regulatory action that might address Winegrad’s concerns. As a result, the Court cannot determine whether any identifiable regulatory action has been—or likely will be—delayed due to the Executive Order and, if so, how that delay might have affected Winegrad. Any injury allegedly stemming from the prospect that the Executive Order has delayed the issuance of unspecified regulations relating to a broadly defined area of concern is too abstract and speculative to support standing.
Second, Plaintiffs rely on a citizen petition in which Public Citizen asked the FDA to “withdraw approval of the use of medically important antibiotics in livestock and poultry.” Dkt. 16-3 at 5–6 (R. Weissman Decl. ¶ 12). Public Citizen member Dr. Anthony So, a physician, attests that “the use of antibiotics in animal feed increases [his] risk of infection and lowers the effectiveness of available treatments for infections from antibiotic-resistant bacteria.” Dkt. 16-8 at 2–3 (So Decl. ¶ 7). Public Citizen member Terri Weissman shares that concern, averring that she and her children “would benefit directly” if the FDA granted Public Citizen’s petition. Dkt. 16-10 at 2–3 (T. Weissman Decl. ¶ 6). Plaintiffs, however, have not alleged or provided any evidence that the FDA ever intended to grant or seriously considered granting the petition. Plaintiffs jump over this antecedent question, arguing instead that delay is inevitable. Delay, however, is possible only if the FDA was otherwise inclined to withdraw its approval for the use of medically important antibiotics in livestock and poultry.
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Third, Plaintiffs contend that OSHA “is developing a standard to protect healthcare
employees and employees in other high-risk environments from exposure to dangerous
pathogens” and that the Executive Order “will necessarily delay issuance of [any such] new
health or safety standards.” Dkt. 47 at 21–22. Unlike the prior two examples, Plaintiffs’
complaint and other submissions suggest that OSHA was poised to take this regulatory action
prior to issuance of the Executive Order. Their complaint alleges that OSHA was in the process
of developing the infectious disease standard and that the agency anticipated issuing a proposed
rule in October 2017. Dkt. 14 at 23 (Am. Compl. ¶ 78). Public records, moreover, support that allegation.6 In May 2010, OSHA issued a request for information “on occupational exposure to
infectious agents in settings where healthcare is provided . . . and [in other] healthcare-related
settings.” Request for Information on Infectious Diseases, 75 Fed. Reg. 24,835, 24,835 (May 6,
2010). After reviewing the comments, meeting with stakeholders, and completing a Small
Business Regulatory Enforcement Fairness Act review, OSHA announced in the spring of 2016
that it was “developing a standard to ensure that employers establish . . . comprehensive infection
6 The Unified Agenda of Regulatory and Deregulatory Actions, issued in the spring and fall of each year, provides information on the status of “regulatory and deregulatory activities under development throughout the Federal Government.” Office of Mgmt. & Budget, About the Unified Agenda, https://www.reginfo.gov/public/jsp/eAgenda/StaticContent/UA_About.jsp. The various editions of the Unified Agenda illuminate the progress of a potential rule over time and are available online. See Office of Mgmt. & Budget, Reginfo.gov, https://www.reginfo.gov/ public/jsp/Utilities/index.jsp. The status of a particular rulemaking at a certain point in time can be ascertained by searching OMB’s website using the Regulatory Identification Number (“RIN”) corresponding to the rulemaking and then selecting the appropriate edition of the Unified Agenda. See Office of Mgmt. & Budget, Search of Agenda/Regulatory Plan, https://www. reginfo.gov/public/do/eAgendaSimpleSearch. For concision, when discussing the regulatory history of a particular rulemaking, the Court will provide the RIN in a footnote and cite the relevant version of the Unified Agenda (e.g., “Fall 2017 Agenda”) in the text. The Court may take judicial notice of Executive Branch statements and reports pursuant to Federal Rule of Evidence 201. See Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
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control program[s] and control measures to protect employees from . . . exposure[] to pathogens that can cause significant disease.”7 Spring 2016 Agenda. At that time, OSHA anticipated that it would issue a Notice of Proposed Rulemaking (“NPRM”) in March 2017, id., although the agency subsequently pushed this date back to October 2017, Fall 2016 Agenda. After Executive Order 13771 issued, however, the infectious disease standard was moved to the “Long-Term Actions” section of the Unified Agenda, Spring 2017 Agenda, where it remains, Fall 2017 Agenda.
It is not obvious what follows from these facts and allegations, and neither party has briefed the issue. On one hand, there is evidence that OSHA intended to issue an NPRM (and, presumably, eventually a final rule) before the Executive Order was issued. On the other hand, the rulemaking process is inherently inchoate until an agency issues an NPRM, which then serves as a benchmark for agency action and triggers the requirement that the agency offer a reasoned explanation if it ultimately decides not to go forward as proposed. See Williams Nat’l Gas Co. v. FERC, 872 F.2d 438, 450 (D.C. Cir. 1989). The decision whether to issue an NPRM, moreover, is often policy-laden and, in that respect, beyond the judicial ken.
Because the parties have not addressed this issue, the Court will assume (without deciding) for present purposes that the infectious disease standard would have issued but for the Executive Order. As explained below, however, that assumption will prove insufficient to permit Plaintiffs to establish standing using the infectious disease standard as their hook.8
7 RIN: 1218–AC46. 8 Plaintiffs have offered even less with respect to a potential rule “amend[ing] energy efficiency standards for consumer refrigerators and freezers.” Dkt. 16-12 at 3 (Quigley Decl. ¶ 10). They aver that the Department of Energy was “expected to issue a notice of proposed rulemaking in 2017.” Id. (Quigley Decl. ¶ 10). They offer no basis to conclude, however, that the Department intended to amend the relevant standards. The Spring 2017 edition of the Unified Agenda stated
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Finally, the remaining five potential regulatory actions more easily clear this first hurdle. Each involves a proposed rule, and the NPRMs shed significant light on “whether the [agencies] [intended to] issue . . . final rule[s].” R.J. Reynolds, 810 F.3d at 830. An NPRM typically reflects an agency’s preliminary assessment that the proposed rule—or some “logical outgrowth” of it—should be adopted. Envtl. Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005). To be sure, an NPRM “in no way [binds] the agency to promulgate a final rule if further reflection, or changed circumstances,” persuade the agency “that no regulatory change [is] warranted.” Williams Nat’l Gas, 872 F.2d at 450. But, as noted above, any such withdrawal is subject to judicial review and must be supported by “a reasoned explanation.” Id. Moreover, because the NPRM must include “the terms or substance of the proposed rule or a description of the subjects and issues involved,” 5 U.S.C. § 553(b)(3), it also provides the Court—and the public—information on “what [such a rule] would say,” R.J. Reynolds, 810 F.3d at 830. There is, accordingly, at least a plausible basis to conclude that the relevant agencies actually intended to finalize the five rules that they proposed.
b. Whether Executive Order 13771 Has Caused Delay Plaintiffs devote most of their attention to the next question: whether the delay in finalizing the OSHA infectious disease standard and the five proposed rules was caused by Executive Order 13771. See Dkt. 47 at 19–30. The Court must, of course, avoid any undue intrusion on the discretion of the Executive Branch to set policy priorities, see Allen v. Wright,
that the Department “may propose and adopt more stringent standards” or, alternatively, that it “may . . . issue a determination that no amendments to the current standards are required.” Spring 2017 Agenda (RIN: 1904–AD80) (emphasis added). And the most recent edition indicates that the Department intends to issue a request for information at an undetermined date. Fall 2017 Agenda. Plaintiffs, accordingly, have not plausibly alleged that the Department planned to issue a final rule “amend[ing] [the relevant] energy efficiency standards.” Dkt. 16-12 at 3 (Quigley Decl. ¶ 10).
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468 U.S. 737, 759–61 (1984); Pub. Citizen, 489 F.3d at 1291–92, and “may not assume a particular exercise of [an agency’s] discretion in establishing standing,” DaimlerChrysler, 547 U.S. at 346. That does not mean, however, that the Court must disregard evidence or plausible allegations that the Executive Order has caused delay.
With respect to the OSHA standard and the five proposed rules, there is some rulespecific evidence that Executive Order 13771 has contributed to delay. As to the OSHA standard, prior to issuance of the Executive Order, OSHA indicated that it was developing a standard and that it anticipated issuing an NPRM in October 2017.9 Fall 2016 Agenda. After the Executive Order issued, however, the standard was moved to the “Long-Term Actions” section of the Unified Agenda. Spring 2017 Agenda. Similarly, after the Executive Order issued, three of the proposed rules Plaintiffs have identified were moved from the “Final Rule Stage” to the “Long-Term Actions” section of the Unified Agenda.10 Fall 2017 Agenda. A fourth rule was scheduled for final action in December 2016,11 Fall 2016 Agenda, but, after the Executive Order issued, the window for final action was pushed back to September 2017, Spring 2017 Agenda, and then pushed back further to accommodate the anticipated issuance of a Supplemental NPRM in October 2018, Fall 2017 Agenda. Finalization of the fifth proposed rule
9 RIN: 1218–AC46. 10 RINs: 2070–AK07 (proposed EPA rule banning the use of certain chemicals in paint remover); 2127–AK92 (proposed NHTSA rule mandating speed-limiting devices on certain commercial vehicles); 2127–AL55 (proposed NHTSA rule mandating V2V communications technology on light vehicles). 11 RIN: 1904–AD15 (proposed Department of Energy rule setting energy efficiency standards for residential conventional cooking products).
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has been successively postponed from July 2017 to December 2017 to July 2018.12 Fall 2016 Agenda; Spring 2017 Agenda; Fall 2017 Agenda.
To be sure, these delays might be attributed to a change in administration and a shift in policy priorities, without regard to the Executive Order. The government’s own statements, however, arguably undercut this theory. Three of the NPRMs that Plaintiffs identify, for example, were proposed by the Department of Transportation. See Federal Motor Vehicle Safety Standards; V2V Communications, 82 Fed. Reg. 3854 (proposed Jan. 12, 2017) [hereinafter V2V Rule]; Federal Motor Vehicle Safety Standards; Federal Motor Carrier Safety Regulations; Parts and Accessories Necessary for Safe Operation; Speed Limiting Devices, 81 Fed. Reg. 61,942 (proposed Sept. 7, 2016) [hereinafter Speed-Limiting Device Rule]; Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains, 81 Fed. Reg. 50,068 (proposed July 29, 2016) [hereinafter Oil Spill Response Plan Rule]. As is typical when a change in administration occurs, the Department announced in January 2017 that “many rule schedules [would] need to be revised” to permit review “by new [Department] leadership.” U.S. Dep’t of Transp., Significant Rulemaking Report Archive (Feb. 9, 2018).13 The next month, however, the Department offered a different explanation for suspending the rulemaking schedules: to permit “evaluat[ion] in accordance with” Executive Order 13771. Id. The Department issued similar notices every month for the next five months. Id. Currently, the “[n]ext [a]ction[s]” on two of the proposed rules (the V2V communications technology rule and
12 RIN: 2137–AF08 (proposed PHMSA rule requiring certain railroads that transport petroleum oil to develop oil spill response plans). 13 Available at https://cms.dot.gov/regulations/significant-rulemaking-report-archive.
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the speed-limiting device rule) are listed as “[u]ndetermined,” and the third rule has been pushed back to July 2018 (the railroad oil spill response plan rule).14 Fall 2017 Agenda.
The likelihood that the Executive Order will cause delay, moreover, is highlighted by information provided by the White House regarding implementation of the Executive Order. In fiscal year 2017, 635 planned regulatory actions were “withdrawn,” 244 were “made inactive,” and 700 were “delayed.” White House, Fact Sheet: President Donald J. Trump Is Delivering on Deregulation (Dec. 14, 2017) [hereinafter Deregulation Fact Sheet].15 Over that same period, federal “[a]gencies issued 67 deregulatory actions and only 3 regulatory actions,” yielding a ratio of 22 deregulatory actions for each regulatory action. Two-for-One Report at 1. The 67 deregulatory actions taken in 2017 yielded regulatory cost savings of $570 million per year ($8.1 billion in lifetime cost savings) across all agencies. Id. For fiscal year 2018, the Executive Branch has “committed to cutting” $686.6 million per year ($9.8 billion in lifetime cost savings) across all agencies. Deregulation Fact Sheet.
Although these statistics would appear to leave room for new regulatory actions, the numbers must be considered in light of the fact that the Executive Order requires an offset for the costs of a new rule, without regard to the benefits of that rule. Although undoubtedly costly, NHTSA’s proposed rule on V2V communications technology illustrates the obstacle posed by the Executive Order. The proposed rule would “require all new light vehicles to be capable of [V2V] communications, such that they [can] send and receive Basic Safety Messages to and
14 RINs: 2127–AL55 (proposed NHTSA rule mandating V2V communications technology on light vehicles); 2127–AK92 (proposed NHTSA rule mandating speed-limiting devices on certain commercial vehicles); 2137–AF08 (proposed PHMSA rule requiring certain railroads that transport petroleum oil to develop oil spill response plans). 15 Available at https://www.whitehouse.gov/briefings-statements/president-donald-j-trumpdelivering-deregulation.
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from other vehicles.” V2V Rule, 82 Fed. Reg. at 3854. When it proposed the rule, NHTSA asserted that V2V technology “has the potential to revolutionize motor vehicle safety . . . [and to] reduce the number and severity of motor vehicle crashes.” Id. at 3855. The agency estimated that the proposed rule would, on an annual basis, save $54.7 to $73.9 billion, id. at 3996, while costing $2.2 to $5 billion, id. at 3981. Under the Executive Order, however, only the costs are relevant. As noted above, the sum of the annual cost savings generated by all deregulatory actions across all agencies in the eight months from the end of January (when the Executive Order issued) through the end of September (when the fiscal year ended) tallied only $570 million. See Two-for-One Report at 1. At that rate, agencies would have achieved $855 million in cost savings had the Executive Order been in effect for a full year. Comparing the estimated costs of the V2V rule ($2.2 to $5 billion annually) with the estimated cost savings from all deregulatory actions taken in one fiscal year ($855 million annually) suggests that it would take the Executive Branch as a whole two or three years to accumulate cost savings sufficient to offset even the most conservative estimated cost of the V2V rule.16 The time needed to accumulate the necessary cost savings would grow by an order of magnitude, moreover, if the Department of Transportation were left to fend for itself: at its current rate of cutting costs, the Department would need almost seven decades to offset the costs of the V2V rule. See Two-forOne Report at 2 (noting that the Department generated $21.8 million in annual cost savings in
16 The actual calculations are more complicated than this. See, e.g., Final Guidance, Q&A 25 (requiring agencies to calculate the present value of regulatory and deregulatory actions “over the full duration of [their] expected effects” using appropriate discount rates). These estimates, however, are close enough to illustrate that the Executive Order curtails the ability of agencies to adopt significant new rules, even when the benefits of the new rules would vastly outweigh the costs.
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the final eight months of fiscal year 2017, which equates to $32.7 million if the Executive Order had been in effect for a full fiscal year).
Although this may be an extreme example, it shows that the Executive Order meaningfully restricts agencies’ latitude to issue rules and, absent waivers, is likely to delay “significant regulatory actions.” Nor is the Court convinced that the authority of the Director of OMB to grant waivers adequately answers this concern. To be sure, that authority does introduce some uncertainty, but, at least to date, there is no indication that the Director has exercised his waiver authority with respect to the six regulatory actions Plaintiffs have identified, none of which has moved forward since the Executive Order took effect.
One might reasonably argue that Plaintiffs can only speculate that the delay in issuance of the identified rules has been caused by the Executive Order. It is conceivable, for example, that the delay stems from greater scrutiny of regulatory action or skepticism that the federal government should try to fix every problem. That, however, is not what the government has said. No one has said, for example, that the V2V rule is a bad idea or that it is too costly. Executive Order 13771, in contrast, speaks directly to the issue and says that agencies may not take new regulatory actions without first identifying deregulatory actions sufficient to offset the relevant cost. Exec. Order No. 13771 § 2(c). And “experience and common sense” suggest that compliance with that mandate will, in fact, cause delay. Attias, 865 F.3d at 628 (quoting Iqbal, 556 U.S. at 679).
Finally, statements from Executive Branch officials corroborate Plaintiffs’ theory that the offset requirement will likely cause delay. After the Executive Branch released statistics on the Executive Order’s implementation in fiscal year 2017, the Administrator of the Office of Information and Regulatory Affairs delivered a press briefing on the results. See White House,
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Press Briefing by Office of Information and Regulatory Affairs Administrator Neomi Rao on the Unified Agenda of Regulatory and Deregulatory Actions (Dec. 14, 2017).17 When asked why the number of deregulatory actions (67) was “so small,” the Administrator replied:
[D]eregulation . . . takes time . . . . [I]f we’re doing things in a way that is careful and consistent with law, it takes time to undo the [existing regulations]. Because for many rules that are undone, you need a new rule, and then you need a new regulatory impact assessment, and you need to create a rule that then can pass through the [procedural] standards. Id. In other words, identifying offsetting deregulatory actions and executing those actions “takes time.” This combination of factors—Executive Branch statements regarding the Executive Order, a common-sense understanding of the effect of the offset requirement, see Iqbal, 556 U.S. at 679, and the actual delay of the six regulatory actions at issue here—belie the government’s suggestion that Plaintiffs’ concerns about delay are too speculative to survive a motion to dismiss, see Dkt. 15-1 at 30. It is at least plausible to conclude that the Executive Order has resulted in some measure of delay with respect to the six regulatory actions that Plaintiffs have identified.
c. Whether Plaintiffs’ Members Face a Substantial—and Substantially Increased—Risk of Harm
Although Plaintiffs have plausibly alleged delay, they devote scant attention to the core of the injury-in-fact requirement: actual or imminent harm. See Lujan, 504 U.S. at 560. Plaintiffs do not allege that any of their members have suffered an actual injury but, instead, premise their claim of associational standing on the theory that at least one member faces an
17 Available at https://www.whitehouse.gov/briefings-statements/press-briefing-officeinformation-regulatory-affairs-administrator-neomi-rao-unified-agenda-regulatory-deregulatoryactions.
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increased risk of harm—such as death, bodily injury, or financial loss—due to the delay caused by the Executive Order. Increased-risk-of-harm theories are often difficult to substantiate, given uncertainty about future events and uncertainty about the “degree” of risk the law demands. Va. State Corp. Comm’n v. FERC, 468 F.3d 845, 848 (D.C. Cir. 2006). Here, the challenge that Plaintiffs face is particularly daunting because they seek to set aside the Executive Order to facilitate the adoption of regulations by agencies in the hopes of compelling third parties to act in a manner that might mitigate risks posed to their members. Cf. Lujan, 504 U.S. at 562.
Although the standard is a demanding one, the D.C. Circuit “has not closed the door to all increased-risk-of-harm cases.” Pub. Citizen, 489 F.3d at 1295. As noted above, the Court of Appeals “ha[s] allowed standing when there was at least both (i) a substantially increased risk of harm and (ii) a substantial probability of harm with that increase taken into account.” Id. Precedent provides no definitive guidance about the meaning of “substantial” in this context. Food & Water Watch, 808 F.3d at 914–15. “In applying the . . . standard,” however, courts must remain “mindful . . . that the constitutional requirement of imminence . . . necessarily compels a very strict understanding of what increases in risk and overall risk levels can count as ‘substantial.’” Pub. Citizen, 489 F.3d at 1296. As explained below, the Court concludes that Plaintiffs have not plausibly alleged or shown that the government’s delay in finalizing the six regulatory actions has given, or is likely to give, rise to the type of injury required to satisfy the increased-risk-of-harm standard. The Court will address each of the six putative regulatory actions in turn.
OSHA Infectious Disease Standard The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., authorizes the Secretary of Labor to issue occupational safety or health standards. 29 U.S.C. § 655(b). Once the Secretary has identified a “significant risk,” he has a “duty to . . . add[] measures so long as
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they afford [a] benefit and are feasible.” Bldg. & Constr. Trades Dep’t, AFL-CIO v. Brock, 838 F.2d 1258, 1269 (D.C. Cir. 1988). In light of this responsibility, OSHA requested information in May 2010 regarding “occupational exposure to infectious agents in settings where healthcare is provided . . . and [in other] healthcare-related settings.” Request for Information on Infectious Diseases, 75 Fed. Reg. at 24,835. By Spring 2016, OSHA announced that it was “developing a standard to ensure that employers establish . . . comprehensive infection control program[s] and control measures to protect employees from . . . exposure[] to pathogens that can cause significant disease.”18 Spring 2016 Agenda. The agency specified that it anticipated issuing an NPRM in March 2017, id., although that date was later pushed back to October 2017, Fall 2016 Agenda. After the Executive Order issued, however, the proposed regulatory action was reclassified from the “Proposed Rule Stage” to “Long-Term Actions,” and issuance of the NPRM was postponed indefinitely. Spring 2017 Agenda; Fall 2017 Agenda.
Plaintiffs contend that at least two of their members face an increased risk of harm as a result of this delay. Denise Abbott is a member of the CWA and is employed as a registered nurse in an emergency department. Dkt. 16-5 at 1–2 (Abbott Decl. ¶¶ 1, 4). She attests that her work “involves exposure to many and varied infectious diseases;” that adoption of “the proposed OSHA Infectious Disease Standard” would “minimize risks associated with the introduction of and exposure to such infectious diseases;” and, finally, that “by delaying . . . a new standard for workplace exposure to infectious diseases, Executive Order 13771 will negatively impact [her] ability to avoid such exposure.” Id. at 2 (Abbott Decl. ¶¶ 6–7). Dr. Jonathan Soverow, in turn, attests that he is a member of Public Citizen; that he works as a cardiologist at a hospital; that his work exposes him “to many and varied infectious agents that can cause disease;” that adoption of
18 RIN: 1218–AC46.
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“the proposed OSHA Infectious Disease Standard” would “minimize” his risk; and that the Executive Order, “by delaying . . . a new standard for workplace infectious diseases, . . . will negatively impact [his] ability to avoid such exposure.” Dkt. 16-9 at 1–2 (Soverow Decl. ¶¶ 1, 3–5).
Although “experience and common sense,” Iqbal, 556 U.S. at 679, along with evidence cited by OSHA, 75 Fed. Reg. at 24,836, support the conclusion that hospital workers face a greater risk of exposure to infectious agents than other members of the public, that premise is insufficient to satisfy the increased-risk-of-harm test. Plaintiffs must plausibly aver (and must eventually prove) that the delay of the OSHA standard occasioned by the Executive Order— however long that delay may last—will substantially increase the risk that Abbott or Soverow will contract an infectious disease and that, after that increased risk is taken into account, Abbott or Soverow will face a substantial probability of contracting an infectious disease. That undertaking is never an easy one, but it borders on the impossible in the present context, where the Court does not have the text of a proposed rule before it. The Court, as a result, does not know what the putative NPRM would say and, even if an earlier draft of the NPRM might be produced, the Court has no way of knowing whether the Department of Labor would have modified the draft before it issued. Speculating about whether and how the draft might have been modified, moreover, constitutes the type of judicial intrusion into the policymaking process that the Supreme Court and the D.C. Circuit have counseled federal courts to avoid. See Allen, 468 U.S. at 759–61; Pub. Citizen, 489 F.3d at 1291–92.
Even if the Court could know what the NPRM would have said, Plaintiffs’ current showing still fails to meet the two-part test for increased-risk-of-harm standing. Plaintiffs have not averred or offered any evidence about Abbott or Soverow’s current risk of exposure or about
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the degree to which the OSHA standard would decrease that risk. To take just one issue, the OSHA request for information suggested that voluntary standards currently exist and that the problem may lie, at least in part, in noncompliance by certain hospitals with those standards. See 75 Fed. Reg. at 24,837 (“The lack of adherence to voluntary infection control procedures is of particular interest to OSHA.”). As a result, even if the Court knew what the NPRM might have provided, and even if the Court assumed that the OSHA standard would have compelled compliance with the existing voluntary standards, Plaintiffs would still need to aver (and eventually to show) that the hospitals where Abbott and Soverow work do not already satisfy those standards. Cf. Pub. Citizen, 489 F.3d at 1297 n.3 (“[Plaintiffs] thus must demonstrate a ‘substantial probability’ . . . that (i) automakers would not adopt safety standards more stringent than the minimum specified in the NHTSA regulation, (ii) consumers on their own would not check their tires so as to prevent injuries to others, and (iii) consumers would pay attention to the warning lights.” (citation omitted)).
The Court, accordingly, concludes that Plaintiffs’ allegations regarding the OSHA standard are insufficient to establish associational standing.
EPA Proposed Rule on Paint Removers Plaintiffs’ reliance on the EPA’s proposed rule on paint removers fares no better. Under the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2601 et seq., if the EPA determines that a chemical substance “presents an unreasonable risk of injury to health or the environment,” it must issue a regulation imposing appropriate restrictions relating to the manufacture, processing, distribution, use, disposal, or marking of that substance. 15 U.S.C. § 2605(a). In conducting the risk evaluation, the EPA may not consider “costs or other nonrisk factors.” 15 U.S.C. § 2605(b)(4).
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Applying the TSCA, the EPA proposed a rule on January 19, 2017, that would prohibit or
restrict the use of methylene chloride and N-methylpyrrolidone (“NMP”) in paint and coating
removers. See Methylene Chloride and N-Methylpyrrolidone; Regulation of Certain Uses Under
TSCA Section 6(a), 82 Fed. Reg. 7464 [hereinafter Paint Remover Rule]. Plaintiffs allege that
their members “are and will be exposed” to methylene chloride and NMP and that those
chemicals pose “serious health risks.” Dkt. 14 at 29–30 (Am. Compl. ¶ 95). They, however,
offer a declaration from only one member, Amanda Fleming, who explains how delay of the rule
might affect her:
One of my hobbies is oil painting, and I use paint remover in connection with that work. In addition, I paint around my house, which also sometimes requires me to use paint remover. For example, I recently used paint remover to remove semigloss paint from a wall that needed flat paint, because painting over the semi-gloss would not work in that situation. In addition, my husband and I are hoping to buy a fixer-upper in the next year or two, which will likely require us to use a variety of painting products, including paint thinner. I am aware that, in January 2017, the [EPA] proposed a rule to regulate certain toxic chemicals in paint removers. When finalized, the rule would either prohibit those chemicals for consumer paint removal or impose a series of restrictions, such as limitations on the amount of the substances in paint removal products and a requirement of warning labels for consumers. My family and I would directly benefit from such a rule, which would help us avoid exposure to dangerous chemicals. Because of [the Executive Order], however, . . . my family and I will lose the protections proposed and be subjected to a higher risk of harm . . . . Dkt. 16-7 at 2–3 (Fleming Decl. ¶ 6).
For present purposes, the negative health consequences of exposure to methylene
chloride and NMP constitute the “the ultimate alleged harm.” Food & Water Watch, 808 F.3d at
915 (internal quotation marks and citation omitted). The question, accordingly, is whether
Plaintiffs have averred or shown that Fleming and her family face a substantially increased risk
of suffering those negative health consequences and, if so, whether they face a substantial
probability of suffering negative health consequences once that increased risk is taken into
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account. See Pub. Citizen, 489 F.3d at 1295; Food & Water Watch, 808 F.3d at 914. The answer to that question is “no.”
Plaintiffs make no allegations about the extent of the risk posed by occasional consumer use of paint remover containing methylene chloride or NMP. See Pub. Citizen, 489 F.3d at 1296 (no estimate of how many accidents would be avoided). They say nothing about how often Fleming uses or will use “painting products” that contain methylene chloride or NMP and, indeed, do not indicate whether Fleming has ever used such a product. And, perhaps most significantly, they say nothing about whether consumer products are already available to Fleming that do not contain methylene chloride or NMP. This omission is especially problematic given that, “[f]or almost every situation in which methylene chloride is used to remove paints or coatings, [the] EPA is aware of technically and economically feasible chemical substitutes or alternative methods that are reasonably available.” Paint Remover Rule, 82 Fed. Reg. at 7485. As a result, Plaintiffs have failed to plausibly allege that Fleming satisfies the increased-risk-of-harm standard.
Department of Energy Proposed Energy Efficiency Standards for Residential Conventional Cooking Products Plaintiffs’ claim of standing based on delay in finalizing energy efficiency standards suffers from similar flaws. The Energy Policy and Conservation Act of 1975, 42 U.S.C. § 6201 et seq., established energy conservation standards for various consumer products and for certain commercial products, but also authorizes the Department of Energy to impose more stringent standards that are technologically feasible and economically justified and that would result in significant energy savings. See, e.g., 42 U.S.C. § 6295. In a Supplemental NPRM issued on September 2, 2016, the Department of Energy “propose[d] new and amended energy conservation standards for residential conventional cooking tops and conventional ovens.”
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Energy Conservation Program: Energy Conservation Standards for Residential Conventional Cooking Products, 81 Fed. Reg. 60,784, 60,784.
Plaintiffs allege that Public Citizen, NRDC, and their members “benefit from improved appliance energy efficiency, including improved energy efficiency for residential conventional cooking products;” that they and their “members use these products;” and that “improved energy efficiency standards will reduce [their utility bills and their] members’ utility bills” and will “lessen air pollution to which [their] members are exposed and that adversely affects [their] members’ health, recreation, aesthetic, and economic interests.” Dkt. 14 at 35–36 (Am. Compl. ¶ 109). With respect to pollution-related or environmental harms, Plaintiffs have failed to allege any other facts or to provide any evidence regarding the nature of the harm, let alone the magnitude or imminence of the risk.
Plaintiffs do, however, offer two declarations on the risk of higher utility bills. First, NRDC Sustainability Manager Eileen Quigley attests that NRDC intends to achieve “net-zero energy use by . . . 2020” in part by “increasing [its] energy efficiency.” Dkt. 16-12 at 1–2 (Quigley Decl. ¶ 4). She fears, however, that the Executive Order will “delay much-needed federal energy efficiency standards,” thus “forc[ing] NRDC to purchase more renewable energy.” Id. at 3 (Quigley Decl. ¶ 9). Similarly, Robert Weissman, the President of Public Citizen, asserts that Public Citizen has “residential conventional cooking products” at its office, which are “replaced from time to time.” Dkt. 16-3 at 8–9 (R. Weissman Decl. ¶ 17). Like his counterpart from NRDC, Weissman avers that Public Citizen will be harmed by the delay of “energy efficiency regulation[s], including . . . the proposed standard for residential conventional cooking products.” Id. (R. Weissman Decl. ¶ 17).
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It makes no difference to the Court’s analysis that these alleged injuries are asserted by the organizations themselves, rather than their members. See Warth, 422 U.S. at 511. For at least two reasons, Plaintiffs have failed plausibly to allege or to show that they face a substantial risk of harm. First, neither declaration indicates that NRDC or Public Citizen plans to imminently purchase a covered appliance. Indeed, Plaintiffs indicate only that Public Citizen “replace[s]” its “residential conventional cooking products . . . from time to time.” Dkt. 16-3 at 8–9 (R. Weissman Decl. ¶ 17) (emphasis added). A “profession of an intent” to purchase new appliances at some point, however, “is simply not enough.” Lujan, 504 U.S. at 564 (internal quotation marks and alterations omitted). As the Supreme Court has explained, “[s]uch ‘some day’ intentions—without any description of concrete plans, or . . . of when the some day will be—do not support a finding of the ‘actual or imminent’ injury” that Article III requires. Id. Second, as with the proposed rule on paint removers, Plaintiffs say nothing about whether energy-efficient cooking products that already meet the proposed standards are currently available in the marketplace.19
19 NRDC member Gerald Winegrad avers that he has “several electric appliances in [his] home, including an oven, an electric water heater, and an electric heat pump” and that “[s]ome of these appliances are very old . . . and will need to be replaced soon.” Dkt. 16-13 at 11 (Winegrad Decl. ¶ 24). “For example,” he explains, he “expect[s] that [he] will need to replace [his] heat pump very soon.” Id. (Winegrad Decl. ¶ 24). Heat pumps and water heaters, however, fall outside the scope of the Department’s proposed rule on cooking products, and Plaintiffs have failed plausibly to allege or to show that the Department of Energy was poised to amend the energy efficiency standards applicable to heat pumps or water heaters before the Executive Order issued. With respect to Winegrad’s oven, moreover, it is unclear whether he intends to replace the appliance and, if so, whether that purchase is imminent. It is also unclear whether ovens that would satisfy the proposed standards are already available to him.
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Department of Transportation Proposed Rules on V2V Communications Technology, Speed-Limiting Devices, and Railroad Oil Spill Response Plans Finally, Plaintiffs identify three rules that the Department of Transportation proposed prior to issuance of the Executive Order. The first of these NPRMs was issued in January 2017 by NHTSA pursuant to the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. § 30111(a). The proposed rule would mandate that automobile manufacturers incorporate V2V communications technology in new light vehicles starting two years after the rule becomes final (and phased in over a period of three years) and would standardize the format for V2V communications. See 82 Fed. Reg. at 3856–57. Public Citizen member Amanda Fleming asserts that she “plan[s] to buy a new car in the next 5 years or so,” and she “would like it to include [V2V] technology.” Dkt. 16-7 at 2 (Fleming Decl. ¶ 5). And because she believes that the Executive Order will delay NHTSA’s V2V rule, she avers that “[her] ability to purchase a new car with this safety system” will be “negatively affect[ed]” and that, as a result, she will “be subjected to a higher risk of injury or death from auto accidents.” Id. (Fleming Decl. ¶ 5). Another member of Public Citizen, Terri Weissman, also intends to purchase a new car “in the next 5–7 years” and shares Fleming’s preference for a V2V-enabled car and concerns regarding delay. Dkt. 16-10 at 2 (T. Weissman Decl. ¶ 4). The second Department of Transportation NPRM was issued by NHTSA and the Federal Motor Carrier Safety Administration, another component of the Department, on September 7, 2016, pursuant to the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. § 30111(a), the Motor Carrier Act of 1935, 49 U.S.C. § 31502(b), and the Motor Carrier Safety Act of 1984, 49 U.S.C. § 31136(a). The proposed rule would “require vehicles with a gross vehicle weight rating” of more than 26,000 pounds “to be equipped with a speed limiting device initially set to a speed no greater than a speed to be specified in a final rule.” Speed-Limiting Device Rule, 81
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Fed. Reg. at 61,942. According to Public Citizen member Amanda Fleming, the rule “would directly benefit [her] children by ensuring that their commutes to and from school were at safe speeds,” and delaying the rule will cause a “greater risk [of] a motor vehicle accident.” Dkt. 167 at 2 (Fleming Decl. ¶ 4).
The third Department of Transportation NPRM was issued by the PHMSA on July 29, 2016, pursuant to the Clean Water Act, 33 U.S.C. § 1321(j)(1)(C). If finalized, the proposed rule would “expand the applicability of comprehensive oil spill response plans” to “any railroad that transports a single train” carrying a certain amount of “liquid petroleum oil.” Oil Spill Response Plan Rule, 81 Fed. Reg. at 50,068. James Coward, a member of NRDC, attests that he lives near “several crude oil rail lines,” one of which “passes near [his] house.” Dkt. 16-11 at 2 (Coward Decl. ¶ 7). He is “worried” that “disasters” involving crude oil explosions could “caus[e] a major conflagration that would harm” him and his family, id. at 2–3 (Coward Decl. ¶ 8), or that a train might derail where “oil rail lines run” by the shores of a nearby lake, causing an “environmental disaster” and harming his ability to recreate in the area. Id. at 3 (Coward Decl. ¶ 9).
Each of these NPRMs seeks to mitigate risks to public safety, health, or the environment, and Plaintiffs plausibly aver that at least one of their members (or their children) falls within the zone of risk to which the NPRMs are directed. But, again, establishing standing based on an increased risk of harm requires more. The injury or loss that one might suffer in a car accident, for example, is a cognizable harm; the difficulty lies in demonstrating that the risk of such an event is sufficiently imminent to satisfy Article III and that the government’s failure to regulate (or its delay in regulating) has significantly increased that risk. Pub. Citizen, 489 F.3d at 1293. In making the requisite showing, Plaintiffs need not provide “a quantitative analysis” or
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“statistics.” Food & Water Watch, 808 F.3d at 917. But they cannot rely on “vague generalities,” Sierra Club v. EPA, 754 F.3d 995, 1001 (D.C. Cir. 2014), or “subjective apprehensions,” City of Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983).
Starting with the V2V rule, the Court does not doubt that this innovation offers a promising means of reducing traffic accidents. It is far from clear, however, how delay of the rule is likely to affect Fleming or Weissman. Both say that they are likely to purchase a new car in the next 5 years (or so), and, perhaps, if the final rule was issued in 2019—as NHTSA initially anticipated—the new technology would be available to them. But, at least as the Court understands it, the technology’s value in reducing accidents is dependent on the number of other cars equipped with the technology. Plaintiffs, however, say nothing about how long it will take before there is a “substantial” decrease in the risk of accidents, how that risk will decline over time, “how many accidents would be avoided by” finalizing the proposed rule, Pub. Citizen, 489 F.3d at 1296, how V2V technology compares to other safety technologies that are likely to develop over the next several years, and whether Fleming or Weissman face a “substantial probability of harm” taking into account the increased risk posed by the delay in finalizing the V2V rule, id. at 1295.
The same can be said of Fleming’s concern about delay of the speed-limiting device regulation and Coward’s concern about the risk of a crude oil rail accident. Plaintiffs offer no specific allegations or evidence addressing whether any delay caused by the Executive Order has substantially increased or will substantially increase Fleming’s or Coward’s risk of harm, nor do they address whether either Fleming or Coward ultimately faces a substantial probability of harm when that increased risk is taken into consideration. Plaintiffs say nothing, for example, about the risk posed to Fleming’s children and, more importantly, about the extent to which the delay
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in finalizing the speed-limiting device rule might increase that risk. Indeed, they say nothing about whether the school bus that Fleming’s son currently rides weighs 26,000 pounds or more (which would trigger application of the proposed speed-limiting device requirement), or whether there is any basis to believe that without the device, her son’s bus driver is likely to drive at an excessive or dangerous speed. Similarly, Plaintiffs say nothing about how often rail-related oil spills occur, about the likelihood that Coward might be affected by such a spill, or about the extent to which delay of the oil spill response plan rule might increase the risk of harm to Coward. See id. at 1296. At most, the Coward and Fleming declarations indicate that they might suffer some increased risk of harm. But the D.C. Circuit has routinely rejected claims of standing based on these types of “equivocal” predictions. See Chamber of Commerce, 642 F.3d at 201–02; Ctr. for Biological Diversity v. Dep’t of the Interior, 563 F.3d 466, 478 (D.C. Cir. 2009).
* * * Having separately considered each link in Plaintiffs’ theory of associational standing, it is worth stepping back to consider the ramifications of this theory as a whole. As the D.C. Circuit observed in Public Citizen v. National Highway Traffic Safety Administration, [m]uch government regulation slightly increases a citizen’s risk of injury—or insufficiently decreases the risk compared to what some citizens might prefer. Under [Plaintiffs’] theory of probabilistic injury, after an agency takes virtually any action, virtually any citizen—because of a fractional chance of benefit from alternative action—would have standing to obtain judicial review of the agency’s choice. Opening the courthouse to these kinds of increased-risk claims would drain the “actual or imminent” requirement of meaning in cases involving consumer challenges to an agency’s regulation (or lack of regulation); would expand the “proper—and properly limited”—constitutional role of the Judicial Branch beyond deciding actual cases or controversies; and would entail the Judiciary exercising some part of the Executive’s responsibility to take care that the law be faithfully executed.
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489 F.3d at 1295 (quoting DaimlerChrysler, 547 U.S. at 341). That observation is an apt one in the present context. This does not mean that the door is “closed . . . to all increased-risk-of-harm cases,” id. at 1295, but Article III requires more than Plaintiffs have mustered.
The Court, accordingly, concludes that Plaintiffs have failed plausibly to allege that they meet the essential elements of associational standing. B. Organizational Standing
Plaintiffs also allege that they have standing to sue in their own right. They contend, in particular, that the Executive Order is causing them harm because it chills their advocacy activities. That is, because the Executive Order requires a trade-off—at least two offsetting deregulatory actions for every new regulatory action—it forces Plaintiffs to choose between “advocating for new regulations, at the cost of potential loss of other beneficial regulations, and refraining from advocating for necessary new public protections.” Dkt. 14 at 4–5 (Am. Compl. ¶ 12); see also id. at 6–7 (Am. Compl. ¶¶ 13–14). In support of this theory of standing, Plaintiffs offer declarations from officers from each of the Plaintiffs. Robert Weissman, the President of Public Citizen, attests that the Executive Order
forc[es] Public Citizen to choose between urging agencies to adopt new regulations, which would trigger the requirement to repeal existing regulatory safeguards, or refraining from advocating for new public protections to avoid triggering the need to repeal existing ones. Dkt. 16-3 at 4 (R. Weissman Decl. ¶ 8). Andrew Wetzler, NRDC’s Deputy Chief Program Officer, attests that “NRDC does not know what deregulatory actions an agency will take if NRDC’s advocacy for a new rule is successful” and that, as a result, it cannot determine “whether its advocacy might end up doing more harm than good to health and the environment.” Dkt. 16-4 at 6 (Wetzler Decl. ¶ 11). This conundrum, Wetzler adds, transforms NRDC’s “constitutionally protected” right to petition the government or to sue an agency to compel action
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“into a game of regulatory Russian roulette.” Id. (Wetzler Decl. ¶ 11). Like Weissman, he avers that the risk posed by trade-offs embodied in the Executive Order “will require NRDC to think twice, and even more carefully, before suing an agency for its failure to act.” Id. at 10 (Wetzler Decl. ¶ 19). David LeGrande, the Occupational Safety and Health Director of CWA, sounds the same theme, averring that “[t]he Executive Order puts CWA in a lose-lose situation, and forces it to make an untenable choice whether to advocate in favor of a new workplace safety and health regulation without knowing what existing protection would be revoked if the new one were issued.”20 Dkt. 16-2 at 6 (LeGrande Decl. ¶ 17).
Article III requires an organization, just “like an individual plaintiff, to show actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.” Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011) (internal quotation marks omitted). As explained below, the Court concludes that Plaintiffs have failed plausibly to allege, or otherwise to show, that they have suffered or are likely to suffer an injury in fact and that any such injury would be fairly traceable to the Executive Order.
1. Injury in Fact According to Plaintiffs, Executive Order 13771 not only conflicts with their missions, it also imperils their ability to advocate on behalf of their members and chills their First
20 LeGrande also attests that CWA suffers another injury to its advocacy efforts: if a health or safety standard “is not set by the federal rulemaking process” due to the Executive Order, “CWA must expend its own resources” on obtaining “protections for represented workers in a particular workplace” or on “establish[ing] violations under the Occupational Safety and Health Act’s general duty clause.” Dkt. 16-2 at 5–6 (LeGrande Decl. ¶ 16). Plaintiffs, however, do not press (or even mention) this point in their briefs, see Dkt. 51 at 10 n.1, and, in any event, LeGrande’s assertion, which fails to identify any expenditures, is too abstract and too hypothetical to support Plaintiffs’ standing, see Food & Water Watch, 808 F.3d at 919.
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Amendment right to petition the government. Dkt. 47 at 16–19. To satisfy the injury-in-fact requirement, an organization must establish that it “has suffered a ‘concrete and demonstrable injury to [its] activities.’” PETA, 797 F.3d at 1093 (quoting Equal Rights Ctr., 633 F.3d at 1138). It is not enough for the organization to show that its “mission has been compromised,” Food & Water Watch, 808 F.3d at 919, or that it has experienced a “setback to its abstract social interests,” Equal Rights Ctr., 633 F.3d at 1138.
In Havens Realty Corp. v. Coleman, the Supreme Court held that a “concrete and demonstrable injury to [an] organization’s activities”—there, providing “counseling and referral services”—can support Article III standing if the organization can show a “consequent drain on [its] resources” and “more than simply a setback to the organization’s abstract social interests.” 455 U.S. 363, 379 (1982). D.C. Circuit “case law, however, establishes two important limitations on the scope of standing under Havens.” Am. Soc’y for the Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C. Cir. 2011) [hereinafter ASPCA]. First, the plaintiff “must show a ‘direct conflict between the defendant’s conduct and the organization’s mission.’” Id. (quoting Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)). Second, the plaintiff must show that it has “used its resources to counteract [the asserted] harm.” PETA, 797 F.3d at 1094. That harm, moreover, cannot be “self-inflicted” by, for example, diverting resources to the “very suit” challenging the defendant’s conduct, ASPCA, 659 F.3d at 25, and cannot result from “expend[ing] resources to educate [the organization’s] members and others unless doing so subjects the organization to operational costs beyond those normally expended,” Food & Water Watch, 808 F.3d at 920 (internal quotation marks and citation omitted).
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It is unsettled, however, how these principles apply to “issue-advocacy injuries,” like the injuries that Plaintiffs assert here. In People for the Ethical Treatment of Animals v. U.S. Department of Agriculture, the D.C. Circuit explained that standing is not found “when the only ‘injury’ arises from the effect of the [challenged act] on the organization[’s] lobbying activities,” 797 F.3d at 1093 (quoting Ams. for Safe Access v. DEA, 706 F.3d 438, 457 (D.C. Cir. 2013)), or “when the ‘service impaired is pure issue-advocacy,’” id. at 1093–94 (quoting Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1162 (D.C. Cir. 2005)); see also Food & Water Watch, 808 F.3d at 919 (“[A]n organization’s use of resources . . . for advocacy is not sufficient to give rise to an Article III injury.”); id. at 922 (Henderson, J., concurring in the judgment) (explaining that the organizational plaintiff lacked standing “because its only expenditures [were] made for ‘pure issue-advocacy,’ an . . . injury [insufficient] to support standing under our precedent”). As the Court of Appeals observed in Center for Law & Education v. Department of Education,
[t]his Court has not found standing when the only “injury” arises from the effect of the regulations on the organization[’s] lobbying activities (as opposed to the effect on non-lobbying activities): “[C]onflict between a defendant’s conduct and an organization’s mission . . . alone [is] insufficient to establish Article III standing. Frustration of an organization’s objectives is the type of abstract concern that does not impart standing.” 396 F.3d at 1161–62 (quoting Nat’l Treasury Emps. Union, 101 F.3d at 1429); see also Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C. Cir. 2015) (noting that “impairment” of an organization’s “advocacy . . . will not suffice” and that “the expenditure of resources on advocacy is not a cognizable Article III injury”). The D.C. Circuit has acknowledged, however, that it has, at times, taken a less definitive view about whether injury to “pure issue-advocacy” can support standing. PETA, 797 F.3d at 1094 & n.4. In American Society for the Prevention of Cruelty to Animals v. Feld Entertainment, Inc., the defendant relied on Center for Law & Education to support its contention that “injury to
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an organization’s ‘advocacy,’ as opposed to its provision of concrete services or programs, is insufficient to support [organizational] standing.” 659 F.3d at 26. The Court of Appeals, however, was “unpersuaded,” explaining that “in Center for Law & Education, . . . standing failed for lack of a conflict between the challenged conduct and the plaintiffs’ stated mission.” Id. That case, the court continued, “sa[id] nothing about the situation” the ASPCA court faced, in which “the defendant’s conduct [was] both clearly ‘at loggerheads’ with the organization’s mission . . . and allegedly injure[d] the organization’s advocacy activities.” Id. at 26–27 (emphasis added) (quoting Nat’l Treasury Emps. Union, 101 F.3d at 1429). The ASPCA court further noted that “many” D.C. Circuit cases finding organizational standing “involved activities that could . . . easily be characterized as advocacy—and, indeed, sometimes are.” Id. at 27 (citing Equal Rights Ctr., 633 F.3d at 1140; Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006); Spann v. Colonial Vill., Inc., 899 F.2d 24, 29 (D.C. Cir. 1990)). The ASPCA court ultimately declined to resolve the “open question” of whether “injury to an organization’s advocacy” can support organizational standing and decided the issue of standing on other grounds. Id.
This Court, likewise, need not resolve that issue. Although Plaintiffs stress the “untenable choice” that they face in deciding whether to advocate for new regulations, they have neither alleged nor offered any evidence that any of them have, in fact, declined—or are imminently likely to decline—to advocate for a new rule out of fear that the Executive Order would compel the repeal of existing rules. Instead, they merely assert that they have been forced to consider the issue. Dkt. 14 at 4–7 (Am. Compl. ¶¶ 12–14); Dkt. 47 at 16; Dkt. 16-2 at 6 (LeGrande Decl. ¶ 17); Dkt. 16-3 at 4 (R. Weissman Decl. ¶ 8); Dkt. 16-4 at 6 (Wetzler Decl. ¶ 11). As counsel explained at oral argument, all that Plaintiffs can say at this point is that they
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“discuss the [E]xecutive [O]rder and take it into account when they’re thinking about what to do.” Dkt. 56 at 33 (Tr. Oral Arg. 33:12–13). But merely having “to think twice” before engaging in advocacy, Dkt. 16-4 at 10 (Wetzler Decl. ¶ 19), does not constitute a cognizable injury in fact.
2. Causation Plaintiffs have also failed plausibly to allege causation. In Clapper v. Amnesty International USA, the plaintiffs claimed that “the risk of surveillance” by the government “require[d] them to take costly and burdensome measures to protect the confidentiality of their communications” and that these expenditures were fairly traceable to the statute authorizing the surveillance of which they complained. 568 U.S. at 415. The Supreme Court rejected this argument. Emphasizing that the threat of “potential future surveillance” was not “certainly impending,” id. at 414, the Court concluded that plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not [imminent],” id. at 416. For present purposes, the Court will assume that Plaintiffs have alleged that they are presently suffering an injury (namely, the chilling of their advocacy) out of the fear that, by advocating for a particular rule, they may contribute to the rescission of unidentified rules. According to Plaintiffs, a chill of that type is distinguishable from the chill in Clapper. They assert that their underlying fear, unlike the fear of surveillance in Clapper, is not “speculative” or subjective;” rather, they assert, their concern about causing the repeal of beneficial regulations “necessarily” flows from the Executive Order. Dkt. 47 at 19; see also Lyons, 461 U.S. at 107 n.8 (“It is the reality of the threat of . . . injury that is relevant to the standing inquiry, not the plaintiff’s subjective apprehensions.”). The Court is not convinced.
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The principal takeaway from Clapper is that plaintiffs may not turn an unduly speculative or hypothetical injury into a concrete injury “by inflicting harm on themselves based on their fears of [the] hypothetical future harm.” Clapper, 568 U.S. at 416. According to Clapper, allowing plaintiffs to do so would nullify the causation requirement. Yet, Plaintiffs’ argument for causation tracks the theory that the Supreme Court rejected in Clapper. Assuming that Plaintiffs encouraged an agency to take some regulatory action, one could only speculate about whether the relevant agency would agree to issue the rule, about which rules might be repealed in response, about whether those rules would not have otherwise been repealed, and about whether an identifiable member of one of the plaintiff-associations would suffer a cognizable injury-in-fact as a result. And because this theory of harm is too uncertain to support standing, Plaintiffs’ self-inflicted injury—sustained in order to avoid that speculative harm—must also fail. Clapper’s teaching is clear: Plaintiffs cannot establish standing by chilling their own advocacy based on “their fears of [a] hypothetical future harm.” Id.
Finally, Plaintiffs suggest that the chill at issue here is particularly troublesome because it implicates their First Amendment right to petition government. Dkt. 47 at 17–18. That argument, however, carries little force in the face of the Supreme Court’s decisions in Clapper and Laird v. Tatum, both of which also involved First Amendment activities. In Clapper, the plaintiffs alleged that the fear of surveillance “compel[led] them to avoid certain e-mail and phone conversations” and “to tal[k] in generalities rather than specifics.” Clapper, 568 U.S. at 415 (internal quotation marks and citation omitted). And in Laird, the plaintiffs alleged that the government’s activities impermissibly burdened their “full expression and utilization of their First Amendment rights.” 408 U.S. 1, 10 (1972) (internal quotation marks and citation omitted).
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The two cases that Plaintiffs cite in support of their contention, moreover, involved very different circumstances. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett considered an Arizona campaign finance system under which, if a privately financed candidate exceeded “a set spending limit,” her publicly financed opponent would receive “roughly one dollar for every dollar [she] spent.” 564 U.S. 721, 728 (2011). The Supreme Court struck down this scheme under the First Amendment. Id. at 754–55. The Court’s decision addressed the merits and not standing. But, to the extent that its logic is relevant here, it cuts against Plaintiffs. In Arizona Free Enterprise, the privately financed candidate’s decision to expend personal funds beyond a certain point would, with complete certainty, trigger an identifiable injury, the matching public funding. Id. at 730. Here, in contrast, no such direct causal link ties Plaintiffs’ advocacy to such an identifiable injury.
Plaintiffs rely on Virginia v. American Booksellers Association, Inc., 484 U.S. 383 (1988), for the proposition that “self-censorship is a harm that can support standing,” Dkt. 47 at 17. The plaintiffs in American Booksellers challenged a Virginia law making it a crime to “knowingly display” sexually explicit materials “for [a] commercial purpose in a manner whereby juveniles may examine and peruse” the materials, “even if these materials are not actually sold to any juvenile.” 484 U.S. at 386–87 (quoting Virginia statute). The plaintiffs were “organizations with memberships consisting of national and Virginia booksellers” as well as “two Virginia bookstores.” Id. at 388 n.3. The Supreme Court explained why the plaintiffs had standing: “the law [was] aimed directly at plaintiffs, who, if their interpretation of the statute [was] correct, [would] have to take significant and costly compliance measures or risk criminal prosecution.” Id. at 392. Unlike the plaintiffs in American Booksellers, Plaintiffs here are not directly regulated by the policy they wish to challenge. This is an important distinction: As the
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Supreme Court explained in Laird, any number of cases have held that self-censorship may give rise to a constitutional violation. 408 U.S. at 10–11. But in each of those cases, “the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.” Id. at 11; cf. United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1380 (D.C. Cir. 1984) (explaining that “[t]he [chilling effect] consists of present deterrence from First Amendment conduct because of the difficulty of determining the application of a regulatory provision to that conduct” (emphasis added)). Plaintiffs here, in contrast, are not directly regulated by the Executive Order nor by any of the regulations they have identified.
The Court, accordingly, concludes that Plaintiffs have failed plausibly to allege or otherwise show that they meet the essential elements of organizational standing. C. Disposition
Having concluded that Plaintiffs have failed to carry their burden of plausibly alleging or otherwise demonstrating that they have standing to sue, the Court must determine the proper disposition of the matter. The Court, of course, cannot consider the merits of the dispute without first concluding that it has jurisdiction. Steel Co., 523 U.S. at 94–95. As a result, the Court must grant the government’s motion to dismiss and must deny Plaintiffs’ motion for summary judgment. “[I]n the ordinary case,” moreover, “a dismissal for lack of subject-matter jurisdiction ends the litigation and leaves nothing more for the Court to do.” Attias, 865 F.3d at 624. But “[w]here subject-matter jurisdiction depends on the factual allegations in the complaint,” the district court may conclude “that [the] dismissal . . . is not final” and may provide the plaintiff with “leave to amend the complaint.” Id. Because the parties have not addressed whether the
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Case 1:17-cv-00253-RDM Document 63 Filed 02/26/18 Page 52 of 52 Court should dismiss the complaint with leave to amend or dismiss the action, the Court will allow the parties to be heard before entering the appropriate order.
CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss, Dkt. 15, is hereby GRANTED for lack of jurisdiction, and Plaintiffs’ motion for summary judgment, Dkt. 16, is hereby DENIED. It is hereby ORDERED that the parties shall appear before the Court on March 1, 2018, at 10:30 a.m. in Courtroom 19 to address appropriate next steps, including whether the Court should enter final judgment. SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: February 26, 2018
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, INC., et al., Plaintiffs,
v. DONALD J. TRUMP, President of the United States, et al.,
Defendants.

Civil Action No. 17-253 (RDM)

MEMORANDUM OPINION AND ORDER This action, brought by three organizations challenging an Executive Order and related guidance issued by the Office of Management and Budget (“OMB”), is before the Court for a second time. In a prior decision, the Court concluded that Plaintiffs had not met their threshold burden of alleging or otherwise proffering facts sufficient to establish that they have Article III standing to sue. See Pub. Citizen, Inc. v. Trump, 297 F. Supp. 3d 6, 40 (D.D.C. 2018) (“Pub. Citizen I”). The Court therefore dismissed the action. In response, and with leave of the Court, Plaintiffs filed an amended complaint, Dkt. 64, and they have now moved for partial summary judgment on the sole issue of their standing, Dkt. 71. Defendants, for their part, contend that nothing has changed, and they have renewed their motion to dismiss for lack of standing. Dkt. 70. The Court concludes that Plaintiffs have now met their burden of plausibly alleging that they have standing to sue. That is all they need to do to survive a Rule 12(b)(1) motion to dismiss that poses a facial challenge to the Court’s jurisdiction. It is not all that they need to do, however, to prevail on their motion for partial summary judgment. To carry the more onerous

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burden applicable on summary judgment, Plaintiffs must show that there is no genuine dispute of material fact regarding their standing to sue. As the Court explains below, they have not done so.
Establishing standing in a case like this one is no easy task. Pub. Citizen I, 297 F. Supp. 3d at 21. To be sure, one need only read the Executive Order to understand that it is designed to constrain the ability of federal agencies to issue new regulations and to create incentives for those agencies to rescind existing regulations. Likewise, one need only read the Unified Agenda of Regulatory and Deregulatory Actions (“Unified Agenda”) to understand that many proposed rules have failed to advance or have been withdrawn since the Executive Order was issued. What is far less clear, however, is whether the Executive Order—as opposed to a more general change in policy between administrations—is the cause of this decline in regulatory activity.
The hurdle that Plaintiffs face in attempting to establish a causal link between the Executive Order and an injury sufficient to sustain their standing is heightened, moreover, by three factors. First, the operation of the Executive Order is not transparent. The government has not disclosed, and there is no process for disclosing, whether the Executive Order has, in fact, precluded or delayed the finalization of any proposed rule. To contrary, although the administration has reported, in general, on its efforts to reduce regulation, it has yet to identify any proposed regulation that would have been adopted but for the Executive Order. Second, the Court must “avoid any undue intrusion on the discretion of the Executive Branch to set policy priorities.” Pub. Citizen I, 297 F. Supp. 3d at 25. It is not the Court’s role to decide which proposed regulations should, or should not, be adopted, nor is it the Court’s role, absent a statutory directive, to set a timetable for an agency to act. Third, even assuming the Executive Order has precluded or delayed the finalization of proposed regulations, Plaintiffs still bear the
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burden of demonstrating that they or their members have been or will likely be injured by the government’s failure to regulate. It is relatively easy to establish standing when you are the regulated party; it is more difficult to do so when the government fails to regulate the conduct of someone else. See, e.g., Arpaio v. Obama, 797 F.3d 11, 20 (D.C. Cir. 2015).
But the existence of these hurdles does not mean that Plaintiffs’ task is impossible. As detailed in Public Citizen I and explained further below, Plaintiffs have marshalled a multitude of examples of proposed regulatory actions that have failed to move forward since the Executive Order was issued, a number of which have moved from the “Final Rule Stage” to the “LongTerm Actions” section of the Unified Agenda. They have identified executive branch statements and logical inferences that support their claims of delay. And, they have filed numerous declarations in an effort to demonstrate that they, or their members, have suffered redressable injuries due to those delays. All told, they have now made out a plausible claim to standing.
There is a significant difference, however, between establishing a plausible claim to standing and showing that Plaintiffs, in fact, have standing to sue. With respect to that more demanding burden, Plaintiffs have not cleared the substantial hurdles they face. They have not yet met—and ultimately may be unable to meet—their burden of proving that the Executive Order, as opposed to separate policy considerations or other factors, has delayed the issuance of a specific regulation, which would have otherwise issued, and that the resulting delay has caused them, or their members, to suffer a redressable injury. This leaves the case in an unfortunate state of incertitude: Plaintiffs have done enough to stay afloat but not enough to move forward.
The Court must, accordingly, deny the government’s motion to dismiss, Dkt. 70, but must also deny Plaintiffs’ motion for partial summary judgment, Dkt. 71. The parties may renew their motions following the development of a further factual record. Finally, because the Court’s
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subject matter jurisdiction remains in doubt, the Court must deny the motion of the States of California and Oregon to intervene, Dkt. 73, as premature.
I. BACKGROUND A. Executive Order 13771 and OMB Guidance
The Court described Executive Order 13771 and OMB’s implementing guidance in its prior opinion, Pub. Citizen I, 297 F. Supp. at 13–15, and will provide only a brief overview here. Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs,” imposes three new restrictions on the authority of agencies to adopt or to propose new regulations: a “two for one” requirement, an “offset” requirement, and an “annual cap” on the net costs of private compliance with covered regulations. Exec. Order No. 13771, 82 Fed. Reg. 9339 (Jan. 30, 2017). Under the “two for one” requirement, “whenever an executive department or agency . . . publicly proposes for notice and comment or otherwise promulgates a new regulation,” the agency must “identify at least two existing regulations to be repealed.” Id. § 2(a). This requirement works in tandem with the “offset” requirement, which requires agencies to offset “any new incremental cost associated with new regulations” by eliminating “existing costs associated with at least two prior regulations.” Id. § 2(c). Finally, the “annual cap” provision works in the aggregate and prohibits agencies from adopting new regulations that exceed their “total incremental cost allowance” for the year—a cap based on the costs of any new regulations adopted in the relevant year, less any cost savings achieved through the repeal of existing regulations. Id. § 3(d). The cap must be reset every year by the Director of OMB, id. § 3(d), who set the total at zero for fiscal year 2017, id. § 2(b), and from zero to negative $196 million, depending on the agency, for fiscal year 2018. Office of Mgmt. & Budget, Regulatory Reform: Two-for-One Status Report and Regulatory Cost Caps 1–2 (2017) [hereinafter Two-for-
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One Report].1 The Executive Order further provides that it “shall be implemented consistent with applicable law” and that “[n]othing in th[e] [O]rder shall be construed to impair or otherwise affect . . . the authority granted by law to an executive department or agency.” Exec. Order No. 13771 § 5. Similar provisos appear within particular provisions. See id. § 2(a) (twofor-one requirement applies “[u]nless prohibited by law”); id. § 2(c) (offset requirement applies “to the extent permitted by law” and any elimination of costs must comport “with the Administrative Procedure Act and other applicable law”).
The Director of OMB is charged with fleshing out the Executive Order’s requirements and exceptions. OMB issued interim guidance on February 2, 2017 and final guidance on April 5, 2017. See Office of Mgmt. & Budget, Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 (2017) (“Interim Guidance”);2 Office of Mgmt. & Budget, Guidance Implementing Executive Order 13771 (2017) (“Final Guidance”).3 These guidance documents (collectively “OMB Guidance”) clarified the Executive Order in several respects.
First, OMB explained that the Executive Order applies only to “significant regulatory action[s]” and “significant guidance document[s],” Final Guidance, Q&A 2—that is, actions or guidance documents likely to “[h]ave an annual effect on the economy of $100 million or more” or to meet other criteria. Exec. Order No. 12866 § 3(f), 3 C.F.R. 638 (1994). Covered
1 Available at: https://www.reginfo.gov/public/pdf/eo13771/FINAL_TOPLINE_All_ 20171207.pdf. 2 Available at: https://www.whitehouse.gov/sites/whitehouse.gov/files/briefingroom/presidential-actions/related-omb-material/eo_iterim_guidance_reducing_regulations _controlling_regulatory_costs.pdf. 3 Available at: https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/ 2017/M-17-21-OMB.pdf.
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deregulatory actions, in contrast, need not qualify as “significant” and thus take a “wide[r] range” of forms than regulatory actions. Final Guidance, Q&A 4.
Second, unlike prior executive orders, cf. Exec. Order No. 12866, Executive Order 13771 focuses only on compliance costs borne by regulated parties, without regard to the public benefit of the existing or proposed rule. See Final Guidance, Q&A 21, 32; Interim Guidance at 4. In calculating costs and savings for purposes of the Executive Order, agencies are required to determine the present value of the costs or savings of the regulatory or deregulatory action “over the full duration of the expected effects of the action[].” Final Guidance, Q&A 25. An agency’s “total incremental cost” for a fiscal year “means the sum of all costs from” significant regulatory actions and guidance documents “minus the cost savings from . . . deregulatory actions.” Id., Q&A 8.
Third, the Executive Order recognizes that certain federal statutes prohibit agencies from considering costs in determining whether a significant regulatory action is warranted. With respect to those regulatory actions, the OMB Guidance acknowledges that the Executive Order cannot—and does not—“change the agency’s obligations under [such a] statute.” Id., Q&A 18. But, agencies implementing these statutes are still “generally . . . required to offset the costs of such regulatory actions through other deregulatory actions taken pursuant to statutes that do not prohibit consideration of costs.” Id. Likewise, if an agency faces an imminent statutory or judicial deadline for taking a regulatory action, the Executive Order “does not prevent” the agency from taking the regulatory action in a timely manner, even if it cannot first satisfy the requirements of the Executive Order. Id., Q&A 33. The agency must, however, “offset [the] regulatory action[] as soon as practicable thereafter.” Id.
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Fourth, agencies are permitted to “bank” cost savings and deregulatory actions “for use in the same or a subsequent fiscal year” to offset significant regulatory actions or guidance documents and to meet their “total incremental cost allowance[s].” Id., Q&A 29. This means, for example, that an agency that takes four deregulatory actions in fiscal year 1 may take two covered regulatory actions in year 1 or in future years, or that an agency that “issues two . . . deregulatory actions with total cost savings of $200 million” and a “regulatory action with a cost of $150 million” in fiscal year 1, “may bank the surplus cost savings of $50 million to offset the costs of another . . . regulatory action” in a future fiscal year. Id.
Finally, neither the Executive Order nor the OMB Guidance provides a mechanism for notifying the public whether and when a proposed (or possible) regulatory action might be delayed or abandoned due to the requirements of the Executive Order. See Dkt. 56 at 64 (Tr. Oral Arg. 64:7–22) (Counsel for Defendants: “I suspect [that information on delayed or abandoned regulatory actions] will not be public.”). Moreover, although the Executive Order requires that agencies identify offsetting deregulatory actions as a condition of taking new regulatory actions, the OMB Guidance precludes agencies from relying on the Executive Order “as the basis or rationale, in whole or in part, for” taking a deregulatory action, and the guidance does not require that agencies publicly identify the “offsetting . . . deregulatory actions” that allow for the regulation. See Final Guidance, Q&A 37 (emphasis added). Similarly, although the Unified Agenda4 should “include, to the extent practicable, . . . deregulatory actions that . . .
4 The Unified Agenda of Regulatory and Deregulatory Actions, issued in the spring and fall of each year, provides information on the status of “regulatory and deregulatory activities under development throughout the Federal Government.” Office of Mgmt. & Budget, About the Unified Agenda, https://www.reginfo.gov/public/jsp/eAgenda/StaticContent/UA_About.jsp. As the Court explained in its prior opinion, see Pub. Citizen I, 297 F. Supp. 3d at 24 n.6, the various editions of the Unified Agenda illuminate the progress of a potential rule over time and are
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are sufficient to offset [any] regulatory actions,” id., the Unified Agenda merely designates
certain actions as “deregulatory” pursuant to the Executive Order, without providing additional
information about whether those actions were taken to comply with the Executive Order or for
independent policy reasons. See Office of Mgmt. & Budget, Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions-Fall 2018.5 As a result, neither the Executive
Order nor the OMB Guidance provides a mechanism for notifying interested parties that an
otherwise desirable regulation is being delayed or withheld in order to comply with the
Executive Order or that a deregulatory action was initiated in order to comply with the Executive
Order.
B. Procedural History Plaintiffs Public Citizen, Inc., Natural Resources Defense Council, Inc. (“NRDC”), and
the Communication Workers of America, AFL-CIO (“CWA”) filed this action against the
President, the Director of OMB, the heads of thirteen federal agencies, and the United States in
February 2017, alleging that Executive Order 13771 “impose[s] rulemaking requirements
beyond and in conflict with the requirements of the” Administrative Procedure Act (“APA”) and
“the statutes from which . . . federal agencies derive their rulemaking authority.” Dkt. 1 at 5–6
available online. See Office of Mgmt. & Budget, Reginfo.gov, https://www.reginfo.gov/ public/jsp/Utilities/index.jsp. The status of a particular rulemaking at a certain point in time can be ascertained by searching OMB’s website using the Regulatory Identification Number (“RIN”) corresponding to the rulemaking and then selecting the appropriate edition of the Unified Agenda. See Office of Mgmt. & Budget, Search of Agenda/Regulatory Plan, https://www. reginfo.gov/public/do/eAgendaSimpleSearch. Consistent with the Court’s prior practice, when discussing the regulatory history of a particular rulemaking, the Court will provide the RIN in a footnote and cite the relevant version of the Unified Agenda (e.g., “Fall 2018 Agenda”) in the text. The Court may take judicial notice of Executive Branch statements and reports pursuant to Federal Rule of Evidence 201. See Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). 5 Available at: https://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201810/ Preamble_8888.html.
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(Compl. ¶ 9). Plaintiffs alleged that the Executive Order (1) exceeds the President’s authority under Article II of the Constitution and usurps Congress’s power to legislate; (2) conflicts with the President’s duty to execute legislation under the Take Care Clause; and (3) directs federal agencies to take actions that are ultra vires. Id. at 43–46 (Compl. ¶¶ 121–47). They further allege that the OMB Guidance (4) is ultra vires; and (5) violates the APA. Id. at 46–48 (Compl. ¶¶ 148–61).
After Plaintiffs filed suit, the government moved to dismiss the complaint for lack of standing and for failure to state a claim, Dkt. 9, and fourteen states filed an amicus brief in support of the government addressing the merits of the dispute, Dkt. 12. In response, Plaintiffs filed an amended complaint as of right, which, among other things, added further allegations relating to their standing to sue. See Dkt. 14 (First Am. Compl.). The government then renewed its motion to dismiss, Dkt. 15, and Plaintiffs cross-moved for summary judgment, Dkt. 16. In opposing Defendants’ motion to dismiss and in seeking summary judgment, Plaintiffs relied on theories of both associational and organizational standing.
The Court first addressed associational standing, which at the motion to dismiss stage requires that the plaintiff association “plausibly allege or otherwise offer facts sufficient to permit the reasonable inference (1) that the plaintiff has at least one member who ‘would otherwise have standing to sue in [her] own right;’ (2) that ‘the interests’ the association ‘seeks to protect are germane to [its] purpose;’ and (3) that ‘neither the claim asserted not the relief requested requires the participation of [the] individual members in the lawsuit.’” Pub. Citizen I, 297 F. Supp. 3d at 17–18 (alterations in original) (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). As the Court explained, because the Plaintiffs could not plausibly allege that the delay in finalizing the regulatory actions at issue would certainly cause
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their members injury, they could plead only that that the identified individuals might someday suffer an injury based on the increase in risk due to the regulatory delay. Id. at 21. In order to satisfy Lujan’s requirements of causation, redressability, and injury-in-fact, Plaintiffs therefore had to show “that the relevant agency intended to issue the regulation in question;” “that Executive Order 13771 will likely cause the agency to delay issuance of the regulation;” “that— with the relevant period of delay taken into account—an identified member of one of the associations will face a substantial probability of a concrete injury;” and, finally, “that the period of delay attributable to the Executive Order will substantially increase that risk of harm.” Id. at 22. Although Plaintiffs identified “over a dozen putative regulatory actions” that might be (or might have been) “delayed, weakened, or barred” because of the Executive Order or OMB Guidance, id. at 18, the Court concluded that Plaintiffs had failed to show that at least one of their members would otherwise have standing to sue in her own right, id. at 35. With respect to some of the identified regulatory actions, Plaintiffs failed to identify particular members who would likely be harmed. Id. at 18–19. With respect to others, they failed to allege facts or otherwise to show that the relevant agency was likely to have issued the particular rule absent the Executive Order. Id. at 25–28. And, with respect to yet others, they failed “plausibly to allege or otherwise to show that any delay in the regulatory action attributable to the Executive Order [would] substantially increase the risk that any of their members [would] be harmed or that any of their members [would] face a substantial probability of harm once such an increase in risk [was] taken into account.” Id. at 12 (emphasis omitted).
The Court was also unconvinced by Plaintiffs’ contention that they had organizational standing, that is, standing to sue in their own right as institutions. Id. at 40. Plaintiffs argued that the trade-off demanded by the Executive Order—requiring that agencies rescind at least two
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regulations for every new regulatory action—would chill their advocacy efforts. Id. at 35. But, as the Court explained, Plaintiffs did not allege or otherwise proffer evidence showing that they had actually declined to pursue a regulatory initiative out of concern that, if successful, their effort would come at the price of rescission of some other regulation they support. Id. at 38. Plaintiffs, instead, merely posited that the Executive Order had forced them to “evaluate whether the cost of the new rule—the loss of two or more unknown existing rules—[was] worth the benefit of the new rule.” Id. at 13 (emphasis added). Because Plaintiffs did not assert “that they have actually declined—or will actually decline—to pursue a new rule,” and because the “burden of merely considering the issue” is not enough, the Court rejected this theory of organizational standing. Id. Finally, the Court concluded that, even had Plaintiffs alleged or shown that they had decided to forego a regulatory initiative out of concern that, if successful, the required tradeoff would be untenable, they had failed to allege or to proffer facts sufficient to show that the Executive Order was the cause of that injury. Id. at 38. As the Court explained, the Supreme Court’s decision in Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013), teaches that a plaintiff “cannot establish standing by chilling [its] own advocacy based on” a purely speculative fear of future harm. Pub. Citizen I, 297 F. Supp. 3d at 39. And, here, Plaintiffs had not established that the relevant causal chain—that is, that (1) the Executive Order dissuaded them from pursuing a specific regulatory initiative; (2) had they pursued that initiative, the relevant agency would likely have rescinded an existing regulation (or perhaps two regulations) in order to generate the credits necessary to promulgate the new rule; (3) in the absence of Plaintiffs’ advocacy for a new rule and the requirements of the Executive Order, it is unlikely that the agency would have rescinded that existing regulation (or those regulations); and (4) rescission of
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that existing regulation (or those regulations) would have caused Plaintiffs or their members a cognizable injury. Id.
Following the Court’s decision, Plaintiffs moved for leave to file a Second Amended Complaint, arguing that their proposed pleading “sets forth allegations sufficient to establish standing under the reasoning of the Court’s memorandum opinion” and that they would also offer “declarations substantiat[ing] those allegations.” Dkt. 64 at 10–11. In light of “the important issues presented in this litigation, and in the interest of efficiency,” Defendants “elected not to oppose Plaintiffs’ [m]otion” for leave to amend. Dkt. 65. At the same time, however, they emphasized that, in their view, nothing contained in the Second Amended Complaint or the accompanying declarations was sufficient to overcome the jurisdictional deficiencies identified in the Court’s opinion. Id. The parties then jointly proposed a briefing schedule for Defendants’ renewed motion to dismiss, and (although reserving Defendants’ right to seek a stay of briefing on the merits) for Plaintiffs’ renewed cross-motion for summary judgment. Dkt. 66. The Court adopted the proposed schedule but, on Defendants’ motion, directed that the parties limit briefing to “questions going to the Court’s jurisdiction.” Minute Order (May 1, 2018). Defendants then moved to dismiss the Second Amended Complaint, pursuant to Rule 12(b)(1) for lack of standing, Dkt. 70, and Plaintiffs cross-moved for partial summary judgment on the issue of standing, Dkt. 71. Finally, the States of California and Oregon moved to intervene pursuant to Rule 24(a) & (b), Dkt. 73, and requested that the Court take judicial notice of certain exhibits in support of their motion, Dkt. 81.
II. ANALYSIS Two sets of motions are now before the Court. The first set returns to the issue of standing, and the second set relates to whether the states of California and Oregon should be
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permitted to intervene in this litigation. The Court will start, as it must, with standing. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States’ and is ‘inflexible and without exception.’”) (alteration in original) (citation omitted). The Court will then address the States’ motion for leave to intervene. A. Plaintiffs’ Standing to Challenge the Executive Order and OMB Guidance
As the parties seeking to invoke the Court’s jurisdiction, Plaintiffs bear the burden of establishing that they have standing to sue. Sierra Club v. E.P.A., 292 F.3d 895, 900 (D.C. Cir. 2002). The extent of that burden, however, varies with the “the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). As explained below, Defendants’ motion to dismiss, Dkt. 70, and Plaintiffs’ cross-motion for partial summary judgment, Dkt. 71, highlight the differences between the burdens applicable at the motion to dismiss stage and the motion for summary judgment stage. At least for present purposes, moreover, these differences are dispositive.
To avoid confusion regarding the applicable standard, the Court will first address whether Plaintiffs have carried their burden for purposes of Defendants’ motion to dismiss and will then turn to the distinct issues posed by Plaintiffs’ cross-motion for partial summary judgment.
1. Defendants’ Motion to Dismiss At the motion to dismiss stage, a challenge to the plaintiff’s standing “may take one of two forms.” Hale v. United States, No. 13-1390, 2015 WL 7760161 at *3 (D.D.C. Dec. 2, 2015). First, a Rule 12(b)(1) motion “may raise a ‘facial’ challenge to the Court’s jurisdiction.” Id. A facial challenge asks whether the complaint alleges facts sufficient to establish the court's jurisdiction. Lujan, 504 U.S. at 561; see also Owner-Operator Indep. Drivers Ass’n v. Dep’t of Transp., 879 F.3d 339, 346–47 (D.C. Cir. 2018). “To survive a motion to dismiss for lack of
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standing, a complaint must state a plausible claim that the plaintiff has suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a favorable decision on the merits.” Humane Soc'y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). In this posture, the Court must accept the factual allegations of the complaint as true, Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006); see also I.T. Consultants, Inc. v. Republic of Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003), but must nonetheless assess the “plausibility” of the plaintiff’s standing allegations in light of the relevant context and the Court’s “judicial experience and common sense,’” Humane Soc'y of the U.S., 797 F.3d at 8 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
“Alternatively, a Rule 12(b)(1) motion may raise a ‘factual’ challenge to the Court’s jurisdiction.” Hale, 2015 WL 7760161, at *3. When a Rule 12(b)(1) motion is framed in this manner, the Court “may not deny the motion . . . merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant” but “must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.” Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). Although the Court “has considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction,” it “must . . . afford the nonmoving party an ample opportunity to secure and present evidence relevant to the existence of jurisdiction.” Prakash v. Am. Univ., 727 F.2d 1174, 1179–80 (D.C. Cir. 1984) (internal citations omitted). The Court may rely on those factual allegations in the complaint that the defendant has not controverted with competent evidence, and it may also consider the “evidentiary material in the record,” Feldman v. FDIC, 879 F.3d 347, 351 (D.C. Cir. 2018), along with any other materials that are subject to judicial notice, Scahill v. District of Columbia, 271 F. Supp. 3d 216, 223–24 (D.D.C. 2017).
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But, “at this threshold stage,” the Court is “obligated . . . to accord [Plaintiffs] the benefit of all reasonable inferences,” and, “[a]bsent evidentiary offering[s]” that controvert specific jurisdictional allegations, the Court must delay “weighing the plausibility” of those allegations until “a later stage of the proceedings.” Feldman, 879 F.3d at 351.
With minor exception discussed below, Defendants’ current motion to dismiss asserts a facial challenge to Plaintiffs’ Second Amended Complaint. Defendants have not offered any competent evidence, and, at least for purposes of their motion to dismiss, they do not challenge the accuracy of any specific (non-conclusory) fact set forth in the Second Amended Complaint or in Plaintiffs’ declarations. As a result, there is no factual dispute for the Court to resolve in “ruling upon the motion to dismiss.” Phoenix Consulting Inc, 216 F.3d at 40. The Court must therefore accept Plaintiffs’ allegations as true and assess whether those allegations—as elucidated by Plaintiffs’ declarations, the various administrative proceedings that they have identified, any matters subject to judicial notice, and “judicial experience and common sense,” Humane Soc’y of the U.S., 797 F.3d at 8 (quoting Iqbal, 556 U.S. at 679)—set forth a plausible claim to Article III standing.
In opposing the government’s motion to dismiss, Plaintiffs identify five putative regulatory actions that they contend have been delayed or withdrawn as a result of Executive Order 13771, purportedly causing at least one identified member of a plaintiff-association to suffer a redressable injury in fact. Dkt. 71 at 18–19. If they are correct with respect to at least one of those putative regulatory actions, that—along with the findings of germaneness and suitability that the Court has already made, Pub. Citizen I, 297 F. Supp. 3d at 18—would be enough to survive Defendants’ motion to dismiss. See Hunt, 432 U.S. at 343. Because the Court is now convinced that Plaintiffs have made a plausible showing of associational standing with
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respect to one of those putative actions—the National Highway Traffic Safety Administration’s proposed rule on vehicle-to-vehicle communications, Federal Motor Vehicle Safety Standard; V2V Communications, 82 Fed. Reg. 3854 (proposed Jan. 12, 2017) (“V2V Proposed Rule”)— the Court need address only that proposed rule.
a. The V2V Proposed Rule and Public Citizen I As explained in Public Citizen I, on January 12, 2017, the National Highway Traffic Safety Administration (“NHTSA”) proposed a rule that would mandate that all new “light vehicles” be equipped with vehicle-to-vehicle—or “V2V”—communications technology and that would standardize the format for V2V communications.6 297 F. Supp. 2d at 33. That proposal followed NHTSA’s issuance of an advanced notice of proposed rulemaking on August 20, 2014, Federal Motor Vehicle Safety Standard: Vehicle-to-Vehicle (V2V) Communications, 79 Fed. Reg. 49270 (proposed Aug. 20, 2014), which generated “more than 900 comments.” V2V Proposed Rule, 82 Fed. Reg. at 3876. As reflected in those comments, safety experts and representatives of the automotive industry “generally” supported the proposed rule; indeed, according to NHTSA, auto industry commenters stressed that “the Federal government need[ed] to assume a large role in establishing key elements of the V2V environment” and that the a regulation was “necessary” to ensure “interoperability” and thus “to realize the full potential benefits of V2V.” Id. at 3877. In the notice of proposed rulemaking, NHTSA agreed with those assessments. It explained that, “[w]ithout a mandate to require and [to] standardize V2V communications, . . . manufacturers will not be able to move forward in an efficient way.” Id. at 3854. NHTSA further opined that V2V technology “has the potential to revolutionize motor vehicle safety . . .
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[b]y providing drivers with timely warnings of impending crash situations.” Id. at 3855. Once fully employed, according to NHTSA, the technology is estimated “to prevent hundreds of thousands of crashes and [to] prevent over one thousand fatalities annually.” Id. at 3854. Under the proposed rule, public comments were due by April 12, 2017. Id.
Shortly after the last presidential election, however, the new administration hit pause on the V2V rule and other rules. The Department of Transportation, of which NHTSA is a component, announced that “‘many rule schedules [would] need to be revised’ to permit review ‘by new [Department] leadership.’” Pub. Citizen I, 297 F. Supp. 3d at 26 (alterations in original). As the Court observed in its prior opinion, changes of that sort are “typical when a change in administration occurs.” Id. The following “month, however, the Department offered a different explanation for suspending [its] rulemaking schedules: to permit ‘evaluat[ion] in accordance with’ Executive Order 13771.” Id. For each of the next five months, the Department issued similar notices. Id. By the time OMB published its Spring 2017 Unified Agenda, the V2V Proposed Rule had been moved to the status of “[l]ong-[l]erm [a]ctions” and the “[n]ext [a]ction” was listed as “[u]ndetermined.” Spring 2017 Agenda. The V2V Proposed Rule has remained in that status ever since. See, e.g., Fall 2018 Agenda.
Plaintiffs argued in Public Citizen I that this was one of the many putative regulatory actions that Executive Order 13771 was delaying or preventing, to the detriment of many of their members. The Court agreed, up to a point, concluding that this was one of five (and possibly six) rules that cleared a number of initial hurdles. Plaintiffs had identified specific members who they alleged had been injured, see Pub. Citizen I, 297 F. Supp. 3d at 18–19; and had identified specific regulatory actions that were threatened by the Executive Order, see id. at 19–20. The five putative regulatory actions, moreover, had reached the notice-and-comment stage and thus
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(1) reflected the agencies’ preliminary assessment that these proposed rules—or some logical outgrowth of them—should be adopted, and (2) required the agencies “to consider the comments . . . received and to articulate a reasoned explanation for” declining to finalize the proposed rules, Williams Nat’l Gas v. FERC, 872 F.2d 438, 450 (D.C. Cir. 1989); see also Pub. Citizen I, 297 F. Supp. 3d at 22–25. The Court, accordingly, concluded that Plaintiffs had plausibly alleged that Executive Order 13771 “ha[d] resulted in some measure of delay with respect to the [five or] six regulatory actions that Plaintiffs ha[d] identified.” Id. at 25–28 (emphasis omitted). None of these putative regulatory actions, however, cleared the final hurdle of plausibly alleging injury in fact—that is, that an actual or imminent harm was suffered or would likely be suffered by an identified member of one of the plaintiff-associations. Id. at 28.
As the Court explained, Plaintiffs “devote[d] scant attention” to this core requirement for establishing standing. Id. at 28. Because Plaintiffs challenged agency delay rather than agency action, they did “not allege that any of their members ha[d] suffered an actual injury but, instead, premised their claim of associational standing on the theory that at least one member face[d] an increased risk of harm—such as death, bodily injury, or financial loss—due to the delay caused by the Executive Order.” Id. “Increased-risk-of-harm theories are often difficult to substantiate, given uncertainty about future events and uncertainty about the ‘degree’ of risk the law demands.” Id. To establish standing in this way, a plaintiff must allege—and must eventually show—that the challenged action (or inaction) has “substantially increased” the plaintiff’s “risk of harm” and that he or she faces a “substantial probability of harm with that increased [risk] taken into account.” Pub. Citizen, Inc. v. NHTSA., 489 F.3d 1279, 1295 (D.C. Cir. 2007) (emphasis omitted). The Court concluded that none of the putative regulatory actions identified
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in Public Citizen I —including the V2V rule—satisfied this demanding standard. 297 F. Supp. 3d at 29.
b. Purchaser Standing Responding to this difficulty, Plaintiffs’ Second Amended Complaint takes a different approach. Plaintiffs now that “[t]he delay of the V2V rule is depriving” two of their members “of the opportunity to purchase vehicles with this desired feature.” Dkt. 64-2 at 24 (redlined version of Second Am. Compl. ¶ 79). Although that addition might seem minor, it signals a significant change in Plaintiffs’ theory of standing: rather than rely on an increased-risk-of-harm theory of standing, as they previously did, they now contend that two members of Public Citizen, Amanda Fleming and Terri Weissman, would have “purchaser standing” were they to sue in their right and that their interests are sufficient to sustain Public Citizen’s associational standing to sue. Dkt. 71 at 27–31. Under the doctrine of purchaser standing, the D.C. Circuit “has permitted consumers of a product to challenge agency action that prevented the consumers from purchasing a desired product.” Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1281 (D.C. Cir. 2012). In Consumer Federation of America v. F.C.C., for example, the D.C. Circuit held that a subscriber to Comcast’s cable service had standing to challenge the merger between AT&T Broadband and Comcast because the merger would affect his ability to continue to use Comcast and still select his own internet service provider—an injury in fact even if, as the defendants posited, the plaintiff could have still “obtain[ed] high-speed internet access using technologies other than cable.” 348 F.3d 1009, 1012 (D.C. Cir. 2003); see also Coal. for Mercury-Free Drugs, 671 F.3d at 1281. The D.C. Circuit reached a similar conclusion in Chamber of Commerce of U.S. v. Securities & Exchange Commission, where the court held that the Chamber of Commerce had
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standing to challenge an SEC regulation permitting a mutual fund to engage in certain transactions only if its board is composed of “no less than 75% independent directors” and it has “an independent chairman.” 412 F.3d 133, 136 (D.C. Cir. 2005). As the Court of Appeals explained, the Chamber had standing because the rule limited its ability to engage in transactions with mutual funds that failed to meet those conditions. Id. at 138. The D.C. Circuit’s decision in Competitive Enterprise Institute v. NHTSA is to like effect. 901 F.2d 107 (D.C. Cir. 1990). In that case, the court held that a consumer group had standing to challenge NHTSA’s fueleconomy standards because members of the group sought to purchase “large size” cars “in a price range they could afford,” and the fuel-economy standards restricted “the production of such vehicles.” 901 F.2d at 112–13. And, most recently, in Orangeburg, South Carolina v. Federal Energy Regulatory Commission, the D.C. Circuit held that a city government had standing to challenge the Federal Energy Regulatory Commission’s approval of an agreement between two utilities because that approval prevented the city from purchasing “a desired product (reliable and low cost wholesale power),” 862 F.3d 1071, 1074 (D.C. Cir. 2017), even though the city could and did “purchase wholesale power from another source,” id. at 1078.
Here, Plaintiffs contend that the delay in finalizing the V2V rule has “depriv[ed]” Fleming and Weissman “of the opportunity to purchase vehicles with a particular desired feature.” Dkt. 71 at 27. In particular, the Second Amended Complaint alleges that Fleming and Weissman “would like to purchase vehicles equipped with V2V communications when they purchase new cars in the next several years,” Dkt. 67 at 23 (Second Am. Compl. ¶ 79); that “[t]he delay of the V2V rule is depriving [them] of the opportunity to purchase vehicles with this desired feature,” id.; and that, by NHTSA’s own account, “manufacturers will not be able to move forward in an efficient way and that a critical mass of equipped vehicles would take many
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years to develop, if ever,” id. at 22 (Second Am. Compl. ¶ 77) (quoting 82 Fed. Reg. at 3854). Plaintiffs back those allegations up, moreover, with declarations from Fleming, Dkt. 16-7 (Fleming Decl.), and Weissman, Dkt. 16-10 (Weissman Decl.). Fleming attests that she plans to purchase a new car “in the next 5 years or so,” Dkt. 16-7 at 2 (Fleming Decl. ¶ 5), and Weissman attests that she plans to buy a new car “in the next 5–7 years,” Dkt. 16-10 at 2 (Weissman Decl, ¶ 4). Both attest that they would like their new cars to include V2V technology. Dkt. 16-10 at 2 (Weissman Decl, ¶ 4); Dkt. 16-7 at 2 (Fleming Decl. ¶ 5). They assert that the delay in finalizing the rule “will negatively affect [their] ability to purchase a new car with this safety system” and that they will “be limited in [their] ability to purchase the vehicle[s] [they] desire[s].” Dkt. 16-7 at 2 (Fleming Decl. ¶ 5); Dkt. 16-10 at 2 (Weissman Decl. ¶ 4).
The Court notes, at the outset, that Plaintiffs’ assertion of purchaser standing differs from Consumer Federation of America, Chamber of Commerce, Competitive Enterprise Institute, and Orangeburg, South Carolina in an important respect—all of those cases dealt with federal regulation that limited consumer choices that would otherwise have been available absent the challenged agency action. Plaintiffs, in contrast, allege an injury that is the product of agency inaction. They argue that the V2V regulation, if finalized, would increase consumer choices. But, as the D.C. Circuit’s decision in Center for Auto Safety v. NHTSA, 793 F.2d 1322 (D.C. Cir. 1986) (“CAS I”), demonstrates, that distinction does not compel a different result. See Competitive Enterprise Institute v. NHTSA, 901 F.2d at 112 (noting that the claim to standing in that case was just “the ‘opposite side of the coin’ of the injury found cognizable in CAS I”). In CAS I, a consumer organization challenged a NHTSA rule setting fuel efficiency standards on the ground that the rule did not go far enough and that “the 1985 and 1986 model year standards [were] too low.” 793 F.2d. at 1323. Just as Fleming and Weissman are interested in purchasing
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vehicles equipped with V2V technology, the association’s members in CAS I were “interested in purchasing the most fuel-efficient vehicle possible.” Id. at 1332. And, just as Fleming and Weissman allege that the V2V regulation is necessary to prod manufacturers to incorporate interoperable V2V technology in their vehicles, the association’s members in CAS I alleged that, without “the threat of civil penalties,” auto manufactures would “not be prodded to install as many fuel-saving technologies.” Id. Against this backdrop, the D.C. Circuit concluded that the CAS I plaintiff “plainly” had associational standing. Id. at 1324. As the court explained, the organization’s “members ha[d] suffered injury-in-fact because the vehicles available for purchase will likely be less fuel efficient than if the fuel economy standards were more demanding,” and “[t]his injury can be traced to NHTSA’s rulemaking and is likely to be redressed by a favorable decision.” Id. According to Plaintiffs, the same analysis applies here: Fleming and Weissman want to purchase V2V-equipped vehicles that are interoperable with other vehicles; the V2V regulations, if finalized, would facilitate the availability of these vehicles; and Fleming and Weissman’s inability to purchase the vehicles of their choice can be traced, Plaintiffs assert, to the delay in finalizing the V2V regulation caused by the Executive Order.
c. Defendants’ Contentions Defendants disagree. They do not take issue with the concept of purchaser standing, nor do they contend that purchaser standing is limited to cases in which the regulatory action at issue limits existing consumer choices. Instead, they argue that (1) the law of the case doctrine precludes reconsideration of Plaintiffs’ contention that the Executive Order has interfered with Fleming and Weissman’s plans to purchase V2V-equipped cars; (2) the Court should reconsider its prior conclusion that Plaintiffs have plausibly alleged that the Executive Order has delayed
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issuance of the final V2V rule and thus need not reach the question of purchaser standing; and (3) in any event, neither Fleming nor Weissman has identified a sufficiently certain or imminent injury to support a claim of purchaser standing. Some of these contentions, as the Court will explain below, are sufficient to defeat Plaintiffs’ cross-motion for summary judgment. None, however, is sufficient to sustain Defendants’ motion to dismiss.
(i) Law of the case First, Defendants argue that Plaintiffs offer no “new facts to cure the deficiencies identified by the Court” and, instead, merely “reuse the same declarations from Ms. Fleming and Ms. Weissman” and “tweak[] their legal argument about why these allegations are sufficient to establish standing.” Dkt. 70-1 at 23; see also Dkt. 75 at 11–12. According to Defendants, “this Court’s prior assessment of the Fleming and Weissman declarations still controls as the law of this case.” Dkt. 75 at 11. In response, Plaintiffs argue that the law of the case doctrine “presents no impediment to consideration of standing based on . . . the V2V rule—particularly as the Court in its earlier order did not consider the injury on which plaintiffs rely to show standing.” Dkt. 78 at 11. Plaintiffs are correct. Under Federal Rule of Civil Procedure 54(b), orders entered by a district court “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). As a result, “[i]nterlocutory orders are not subject to the law of the case doctrine and may always be reconsidered prior to final judgment.” Langevine v. District of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997); see also Filebark v. U.S. Dep’t of Transp., 555 F.3d 1009, 1013 (D.C. Cir. 2009); Sloan v. Urban Title Services, Inc., 770 F. Supp. 2d 216, 224 (D.D.C. 2011). To be sure, principles of judicial efficiency and expedition counsel against revisiting prior rulings absent good case, see Fed. R. Civ. P. 1;
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Capitol Sprinkler Insp., Inc. v. Guest Services, Inc., 630 F.3d 217, 227 (D.C. Cir. 2011) (district courts have “inherent power to reconsider an interlocutory order ‘as justice requires’”) (citation omitted), and the Fleming and Weissman declarations previously referred to their desire to purchase new cars equipped with V2V technology. The Court, however, did not previously consider—much less reject—Plaintiffs’ contention that Fleming and Weissman would have purchaser standing to sue. To the contrary, Plaintiffs’ did not refer to purchaser standing—or cite to any of the purchaser standing cases—in the earlier round of briefing, and, understandably, the government did not address an argument that Plaintiffs did not make. Although in retrospect Plaintiffs may wish they had done so—if for no other reason, at least to have expedited resolution of the standing issue—the government does not identify any authority that precludes Plaintiffs from advancing a new theory of standing at this stage of the litigation.
As the government acknowledged when it assented to Plaintiffs’ request to file a Second Amended Complaint, the issues presented in this case are of sufficient importance that Plaintiffs should be given the opportunity to make their best case for standing. Dkt. 65. The Court agrees and can discern no reason to limit the scope of Plaintiffs’ second effort to new factual, as opposed to new legal, theories.
(ii) Whether the Executive Order has delayed issuance of the V2V rule Second, and arguably in some tension with its first argument, the government asks that the Court reconsider its prior conclusions that Plaintiffs have plausibly alleged that NHTSA intended to finalize the V2V rule and that Executive Order 13771 has delayed that agency action. Dkt. 70-1 at 23–24. As the Court recognized in Public Citizen I, it is not easy for a plaintiff “plausibly [to] allege or show that [a] putative regulatory action[] . . . would have been taken in the absence” of some event or requirement. 297 F. Supp. 3d at 22. That difficulty is the product
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of multiple factors, not least of which is the Court’s obligation to refrain from placing “itself in the role of policymaker” and to avoid “speculating about how governmental entities ‘will exercise their discretion.’” Id. at 22–23 (quoting Clapper, 568 U.S. at 412). But, notwithstanding these hurdles, the Court concluded that Plaintiffs had plausibly alleged that NHTSA intended to finalize the V2V rule and that the Executive Order has delayed that action. In reaching that conclusion, the Court relied on a variety of factors, including NHTSA’s endorsement of the rule in the notice of proposed rulemaking; statements from OMB acknowledging that identifying offsetting deregulatory actions and executing those actions “takes time;” the Department of Transportation’s own assertion that it was delaying its rulemaking schedules to permit “evaluat[ion] in accordance with” Executive Order 13771; the Department’s subsequent decision to move the proposed V2V rule to the “[l]ong-[t]erm [a]ction” section of the regulatory agenda and to list the date for the “[n]ext [a]ction” as “[u]ndetermined;” the lack of any suggestion by NHTSA (or any other government agency or official) that it now has doubts about the merits of the proposed rule; the requirement under the APA that, if NHTSA no longer supported the rule, it would need to provide a “reasoned explanation” for that decision; and— perhaps most significantly—the fact that because the Executive Order considers only costs, and not benefits, it would likely take decades for the Department of Transportation to bank sufficient cost savings to permit the rule to proceed under the Executive Order. 297 F. Supp. 3d at 25–28. “This combination of factors,” along with “experience and common sense,” convinced the Court that “[i]t is at least plausible . . . that the Executive Order has resulted in some measure of delay with respect to” the V2V rule. Id. at 28.
In seeking to dismiss Plaintiffs’ Second Amended Complaint, the government does not take issue with much of this. It does not dispute, for example, that it would take decades for the
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Department of Transportation to accrue sufficient cost savings to pay for the rule, and it does not assert that it is no longer convinced, as a matter of policy, that the rule is a good idea. Instead, it points to a statement that the Department of Transportation issued on November 8, 2017, and argues that, in light of that statement, “Plaintiffs cannot demonstrate that [the Department of Transportation] intends to issue a final rule, or that such a rule is being delayed by Executive Order 13,771.” Dkt. 70-1 at 23–24. The statement is brief and can be quoted in full:
The Department of Transportation and NHTSA have not made any final decision on the proposed rulemaking concern a V2V mandate. Any reports to the contrary are mistaken. In all events, DOT hopes to use the dedicated spectrum for transportation lifesaving technologies. Safety is the Department’s number one priority. In response to the proposal, NHTSA is still reviewing and considering more than 460 comments submitted and other relevant new information to inform its next steps. An update on these actions will be provided when a decision is made at the appropriate time, taking into consideration the rich comments received in response to the proposed action published in December 2016. While [the Department of Transportation] withdrew or revised 13 rules this year, V2V is not one of them, and remains on [the Department of Transportation’s] significant rulemaking report. U.S. Dep’t of Transp., V2V Statement (Nov. 8, 2017) (quotations in original) (“V2V Statement”).7 Although this statement may well create a dispute of material fact for purposes of summary judgment, it does not undercut the Court’s prior conclusion that Plaintiffs have plausibly alleged that the Executive Order has delayed issuance of a final V2V rule. As an initial matter, the statement confirms that neither the Department of Transportation nor NHTSA has decided, as a matter of policy, that the proposed rule is ill-advised. To the contrary, the statement seeks to rebut “mistaken” reports that the Department has made a decision to withdraw the proposed rule and emphasizes that, although the Department has
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withdrawn or “revised 13 rules this year, [the] V2V [proposed rule] is not one of them.” Id. The statement, moreover, reaffirms that the Department “hopes to use the dedicated spectrum for transportation lifesaving technologies” and that “[s]afety is the Department’s number one priority.” Id. The government, for its part, points to other portions of the statement and, in particular, to the assertion that “NHTSA is still reviewing and considering more than 460 comments submitted and other relevant new information to inform its next steps” and to NHTSA’s promise to provide “[a]n update” once “a decision is made at the appropriate time, taking into consideration the rich comments received in response to the proposed” rule. Dkt. 701 at 23–24 (quoting V2V Statement). That language may well support the government’s view that the Department is considering whether to issue the rule (and, if so, what revisions are appropriate) without regard to the limits imposed on significant, new regulatory action by the Executive Order. But it reads too much into the statement to conclude that it renders Plaintiffs’ jurisdictional allegations implausible. The Department, for example, might just as well be taking its time in considering the 460 comments because it knows that the Executive Order will, in any event, preclude issuance of the rule anytime soon. Likewise, the Executive Order and the availability (or unavailability) of regulatory offsets may just as well be the “other relevant new information” that will “inform” the Department’s “next steps.” See V2V Statement. Finally, the statement was issued almost fifteen months ago, and, although the Department promised to provide an “update . . . at the appropriate time,” id., it did not promise to provide notice as soon as it completed the review of the comments. In short, although the government might be correct, the statement is not nearly as definitive as the government suggests.
It has now been almost twenty-two months since the comment period on the proposed rule closed, and the regulatory agenda continues to reflect that the rule is on the list of items for
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“[l]ong-[t]erm [a]ction” with an “[u]ndetermined” date for any further action. Fall 2018 Agenda. Although it is possible that the Department is simply engaged in a detailed review of the comments it has received, the Court adheres to its prior conclusion that Plaintiffs have plausibly alleged that the delay is due, at least in part, to Executive Order 13771. It is also possible that the Department will engage in a massive deregulatory action, sufficient to offset the estimated cost of $2 billion or more each year for the first several years the V2V rule is in effect or that another agency will transfer sufficient cost savings to the Department of Transportation. And, it is possible that OMB will waive the regulatory cap in order to permit the rulemaking to proceed. But, as the record now stands, it appears that the Executive Order currently precludes issuance of the rule, raising the plausible inference that the Department is not rushing to finalize a rule that it will not be permitted to issue. If that inference is incorrect, the government can rebut it after the parties are provided an opportunity for further factual development.
(iii) Adequacy of Plaintiffs’ allegations of injury Finally, the government argues that Plaintiffs’ allegations and declarations do not plausibly allege or otherwise show that Fleming or Weissman are likely to suffer a nonspeculative and redressable injury due to any delay in finalizing the V2V rule. In particular, according to the government, Fleming and Weissman will be able to purchase V2V-equipped vehicles even if the rule is not finalized; their plans to purchase new vehicles with V2V technology years from now are too speculative to support standing; and that their injuries, if any, are not redressable. The Court is unconvinced. The government first contends that Fleming and Weissman have not suffered, and will not suffer, any concrete injury because they will be able to purchase V2V-equipped vehicles, “regardless of whether DOT issues a final V2V rule.” Dkt. 70-1 at 25– 26. For support, the
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government points to two news stories, one from March 2017 reporting that “Cadillac [had] introduce[d] . . . V2V . . . communications . . . in [its] CTS . . . sedan,” V2V Safety Technology Now Standard on Cadillac CTS Sedans, Cadillac (Mar. 9, 2017); 8 see also Dkt. 70-1 at 25–26, and another from April 2018 reporting that “Toyota [had] announced that it intends to deploy [dedicated short-range communications systems, which will enable V2V communications] on Toyota and Lexus vehicles in the US starting in 2021,” Andrew Krok, Toyota, Lexus to Launch ‘Talking’ Vehicles in 2021, CNET (April 16, 2018);9 see also Dkt. 70-1 at 26.
With these press reports in hand, the government invokes the D.C. Circuit’s decision in Coalition for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275 (D.C. Cir. 2012), for the proposition that there is “no injury where [the] desired product was ‘readily available.’” Dkt. 701 at 26. In that case, the D.C. Circuit reaffirmed the concept of purchaser standing but held that the plaintiff-association had failed to allege that the agency action prevented its members from purchasing the relevant product, in that case thimerosal-free vaccines. Coal. for Mercury-Free Drugs, 671 F.3d at 1281. Although recognizing that the plaintiffs might have met their burden had they shown that the agency action made “thimerosal-free alternatives difficult to obtain,” the court stressed that the plaintiffs did not even meet this modest burden; to the contrary, the plaintiffs acknowledged “that thimerosal-free vaccines [were] readily available.” Id. at 1282. Under those circumstances, the D.C. Circuit held that the plaintiffs lacked standing. Even assuming for present purposes that the cited press reports constitute competent evidence,
8 Available at: https://media.cadillac.com/media/us/en/cadillac/news.detail.html/ content/Pages/news/us/en/2017/mar/0309-v2v.html. 9 Available at: https://www.cnet.com/roadshow/news/toyota-lexus-v2v-v2i-dsrccommunication-2021.
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however, the Court is unconvinced that the reports or Coalition for Mercury-Free Drugs rebut Plaintiffs’ claim to standing.
This case differs from Coalition for Mercury-Free Drugs in a number of important respects. First, and foremost, the product that Plaintiffs seek here—V2V-equipped vehicles—is fundamentally different from thimerosal-free vaccines. Unlike thimerosal-free vaccines, the value of the technology at issue here turns on its employment in as many vehicles as possible. To be sure, there might be some value in a technology that prevents accidents between Cadillac CTS sedans and Toyota and Lexus vehicles. But that limited benefit falls far short of the objective of the rule, and it renders the technology included in those vehicles far less attractive. Significantly, the products that Fleming and Weissman would like to purchase are not simply vehicles or even vehicles equipped with V2V technology, but vehicles that are capable of communicating with most, if not all, other light vehicles on the road. Nothing the government has offered suggests that Fleming and Weissman—or anyone else—will be able to purchase cars with that capability.
The Court, moreover, need not assess the potential availability of a desired product in a vacuum. Under prevailing D.C. Circuit precedent, the Court must evaluate the effect of agency action (or inaction) on third party conduct based on “evidence contained in the agency’s own factfinding” and “the administrative record itself.” Competitive Enter. Inst., 901 F.2d at 114 (citing Animal Welfare Inst. v. Kreps, 561 F.2d 1002, 1010 (D.C. Cir. 1977)); see also CAS I, 793 F.2d at 1332–34 (looking to agency’s assessment of “incentives” and “disincentives” of regulation in assessing plausibility of plaintiffs’ allegations of standing). Here, although the administrative record is not yet complete, NHTSA’s most recent pronouncement mirrors Plaintiffs’ claims. According to the notice of proposed rulemaking:
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Despite the[] potential benefits, V2V offers challenges that are not present[ed] [by independent safety technologies such as radar and camera systems]. Without government action, these challenges could prevent this promising safety technology from achieving sufficiently widespread use throughout the vehicle fleet to achieve these benefits. Most prominently, vehicles need to communicate a standard set of information to each other, using interoperable communications that all vehicles can understand. . . . Without interoperability, manufacturers attempting to implement V2V will find that their vehicles are not necessarily able to communicate with other manufacturers’ vehicles and equipment, defeating the objective of the mandate and stifling the potential for innovation that the new information environment can create. In addition, there is the issue of achieving critical mass: That V2V can only begin to provide significant safety benefits when a significant fraction of vehicles comprising the fleet can transmit and receive the same information in an interoperable fashion.
The improvement in safety that results from enabling vehicles to communicate with one another depends directly on the fraction of the vehicle fleet that is equipped with the necessary technology, and on its ability to perform reliably. . . . Because the value to potential buyers of purchasing a vehicle that is equipped with V2V communications technology depends upon how many other vehicle owners have also purchased comparably-equipped models, V2V communications has many of the same characteristics as more familiar network communications technologies.
* * *
. . . Unless individual buyers believe that a significant number of other buyers will obtain V2V systems, they may conclude that the potential benefits they would receive from this system are unlikely to materialize.
82 Fed. Reg. at 3856 (emphasis added). Based on all of this, the notice of proposed rulemaking
concluded that, “[w]ithout government intervention, the resulting uncertainty could undermine
manufacturer plans or weaken manufacturers’ incentive to develop V2V technology to its full
potential.” Id. That is precisely Plaintiffs’ point, and nothing contained in either of the press
reports that the government now cites undermines NHTSA’s prior statement.
The government’s reliance on Coalition for Mercury-Free Drugs is unavailing for a
second reason as well. In that case, the agency’s action did not limit the choices available to
consumers. There was no suggestion that, with the exception of the preservative, the vaccines on
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the market differed in any material respect from one another. Against that backdrop, the D.C. Circuit held that the plaintiffs lacked standing to challenge the FDA’s approval of thimerosalcontaining vaccines because the FDA’s action did not “prevent[] [the association’s members and individual plaintiffs] from purchasing thimerosal-free vaccines altogether,” and the plaintiffs did “not allege that mercury-free vaccines [were] ‘not readily available’” or that those vaccines were “unreasonably priced.” 671 F.3d at 1281–82. That scenario bears little resemblance to the facts of this case, at least as the record now stands. Without the V2V rule, Fleming and Weissman will only be able to purchase a Cadillac CTS sedan, Toyota, or Lexus. Thus, unlike the consumers in Coalition for Mercury-Free- Drugs, who were able to purchase just what they wanted at a reasonable price, Fleming and Weissman’s choices will be significantly curtailed.
As a result, this case is more like Consumer Federation of America, where the D.C. Circuit held that a consumer who was “deterred” in exercising his full range of choices of highspeed internet services suffered an injury in fact, even though he “could obtain high-speed internet access using technologies other than cable.” 348 F.3d at 1012. As the Court of Appeals explained, “the inability of consumers to buy a desired product may constitute injury-in-fact ‘even if they could ameliorate the injury by purchasing some alternative product.’” Consumer Fed. of Am., 348 F.3d at 1012 (quoting Cmty. Nutrition Inst. v. Block, 698 F.2d 1239, 1247 (D.C. Cir. 1983), rev’d on other grounds, 467 U.S. 340 (1984)). That holds true here and provides a sufficient basis to reject the government’s argument that Fleming and Weissman face no threat of injury because they can, in any event, buy a V2V-equipped Cadillac CTS sedan, Lexus, or Toyota.10
10 The government also contends that purchaser standing requires that the purchaser suffer an independent, “legally cognizable injury” as a result of the lost opportunity to purchase a desired
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Next, the government contends that the timeline and relationships to the regulatory process are too attenuated to support standing. As the government notes, the proposed V2V rule included “two years of lead time” following promulgation of a final rule before the mandate would apply, followed by a three-year phase in period. 82 Fed. Reg. at 4006; see also Dkt. 70-1 at 26. And, even beyond that, the technology will provide its full benefit only after a sufficient number of consumers purchase new cars. Fleming, moreover, merely attests that she plans to purchase a new car “in the next five years or so,” and Weissman merely says that she plans to purchase a new car “in the next 5-7 years.” Dkt. 70-1 at 27 (quoting Dkt. 16-7 at 2 (Fleming Decl. ¶ 5); Dkt. 16-10 at 2 (Weissman Decl. ¶ 4)). According to the government, when all of this is taken into consideration, it shows that Plaintiffs have not alleged that they are likely to suffer a non-speculative injury that is “certainly impending.” Dkt. 70-1 at 27 (quoting Clapper, 568 U.S. at 401). The Court is, again, unconvinced.
As an initial matter, although the government questions whether Fleming and Weissman “will end up purchasing . . . car[s]” when they say they will, id., the Court must, at this stage of the proceeding, accept as true Plaintiffs’ allegations and Fleming and Weissman’s declarations, which aver that they plan to purchase new vehicles in the next five to seven years. See Matthew A. Goldstein, PLLC v. United States Dep’t of State, 851 F.3d 1, 4 (D.C. Cir. 2017). Nor is that timeline too long to support standing. To the contrary, “[s]tanding depends on the probability of
product—beyond the underlying deprivation of the good of his or her choice. Dkt. 70-1 at 28. But that argument cannot be reconciled with decisions like Consumer Federation of America, 348 F.3d at 1012, where the Court of Appeals did not engage in a secondary inquiry to assess whether the reduced options for purchasing high-speed internet service caused a distinct economic or other loss. As the D.C. Circuit put it in Competitive Enterprise Institute in responding to a similar argument: “a lost opportunity to purchase vehicles of choice is sufficiently personal and concrete to satisfy Article III requirements.” 901 F.2d at 113.
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harm, not its temporal proximity,” Orangeburg, South Carolina, 862 F.3d at 1078 (alteration in original) (quoting 520 Mich. Ave. Assocs. v. Devine, 433 F.3d 961, 962 (7th Cir. 2006)), and the Court has no reason to believe that Fleming and Weissman’s desire to purchase V2V-equipped vehicles will diminish over time or that the, if the V2V rule is adopted, auto manufacturers will be unable to comply with the rule. Moreover, even though the value of owning a V2V-equipped vehicle will not be fully realized for years to come, the alleged harm under the purchaser theory of standing is not the realization of the maximum safety benefit but the ability to purchase the desired product—even before it attains its maximum utility.
The government also argues that “numerous contingencies outside of its control . . . could delay the installation of V2V technology, such as public rejection of the product and the possibility that a court might enjoin the rule.” Dkt. 70-1 at 27 n.9. That argument, however, turns the concept of undue speculation on its head. To be sure, it is always possible that a regulation might be enjoined or that members of the public might ask the agency to rescind a mandate. The question for present purposes, however, is simply whether Plaintiffs have plausibly alleged or otherwise shown that they have standing, and they have met that burden.
Finally, the government contends that Plaintiffs have not plausibly alleged that overturning of the Executive Order would redress Fleming and Weissman’s injuries. Dkt. 70-1 at 29–30. As is often the case in standing analysis, this argument is simply the flip side of the government’s contention that Plaintiffs have not plausibly alleged that the Executive Order has delayed the issuance of the V2V rule. See Carpenters Indus. Council v. Zinke, 854 F.3d 1, 6 n.1 (D.C. Cir. 2017) (“Causation and redressability typically ‘overlap as two sides of a causation coin,’” because “[a]fter all, if a government action causes an injury, enjoining the action usually will redress that injury.” (quoting Dynalantic Corp. v. Dep’t of Defense, 115 F.3d
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1012, 1017 (D.C. Cir. 1997)). Thus, to the extent that Plaintiffs have plausibly alleged that NHTSA has not issued a final V2V rule because the Department of Transportation has yet to accrue sufficient cost savings to offset the cost of the rule under the Executive Order, it does not require a substantial leap to conclude that they have also plausibly alleged that invalidating the Executive Order would redress the injuries they allege. “Article III does not demand a demonstration that victory in court will without doubt cure the identified injury,” Teton Historic Aviation Found. v. U.S. Dep’t of Def., 785 F.3d 719, 727 (D.C. Cir. 2015), but only that it is likely to do so, see Estate of Boyland v. U.S. Dep’t of Agriculture, 913 F.3d 117, 123 (D.C. Cir. 2019). To be sure, Plaintiffs have yet to prove that the Executive Order has delayed the finalization of the rule, and they still face substantial hurdles in their effort to do so. But they have at least plausibly alleged that it has done so, and, for similar reasons, they have plausibly alleged that their purported injury is redressable.
* * * Plaintiffs have therefore carried their burden of plausibly alleging or otherwise showing that Executive Order 13771 has delayed the issuance of the V2V rule and that the resulting delay will likely cause one or more of their members to suffer a concrete injury redressable by invalidation of the Executive Order and OMB Guidance. The Court will, accordingly, deny Defendants’ motion to dismiss. 2. Plaintiff’s Motion for Summary Judgment That disposes of only one of the pending motions; Plaintiffs have also cross-moved for partial summary judgment on the question of standing. In moving from defense to offense, however, Plaintiffs face a far more demanding standard. See Nat’l Whistleblower Center v. Dep’t of Health and Human Servs., 839 F. Supp. 2d 40, 46 (D.D.C. 2012). At this stage,
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Plaintiffs “can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’” sufficient to carry their burden on summary judgment. Lujan, 504 U.S. at 561 (citation omitted). This means that they “must establish that there exists no genuine issue of material fact as to justiciability.” Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 329 (1999). A fact is “material” if it is capable of affecting the outcome of the dispute, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is “genuine” if the evidence is such that a reasonable factfinder—here, the Court—could find in favor of the nonmoving party, see Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support th[at] assertion by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor,” Liberty Lobby, 477 U.S. at 255, but the non-movant must offer more than unsupported allegations or denials, Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). As explained below, this difference in the relevant standard is dispositive.
An association “can establish standing in one of two ways. It can assert ‘associational standing’ to sue on behalf of its members[,] . . . [o]r it can assert ‘organizational standing; to sue on its own behalf.” Pub. Citizen I, 297 F. Supp. 3d at 17 (internal citations omitted). Plaintiffs’ pending motion for partial summary judgment focuses almost exclusively on associational standing, and it only briefly touches on organization standing. The Court will follow suit and will first address “associational standing” and will then briefly address organizational standing.
a. Associational Standing To establish association standing, an organization must satisfy three criteria. It must show (1) that at least one of its members “would otherwise have standing to sue in [her] own
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right;” (2) that “the interests” the organization “seeks to protect are germane to the organization’s purpose;” and (3) that the claim is suitable for resolution in a case in which the association’s members are not joined—that is, “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt, 432 U.S. at 343. For present purposes, as in Public Citizen I, the government does not dispute that Plaintiffs satisfy the second and third criteria, and the Court agrees. The question, accordingly, once again comes down to whether Plaintiffs have demonstrated that at least one of their members would have standing to sue in her own right.
To meet that burden, Plaintiffs now identify five putative regulatory measures that they contend have been delayed or withdrawn due to Executive Order 13771, to the detriment of one or more of their members. The Court will consider each of these measures in turn and, as to each, will consider whether Plaintiffs have shown—beyond genuine dispute—(1) that at least one of their members has sustained, or faces the imminent threat of sustaining, an “injury-infact” that is neither “conjectural” nor “hypothetical;” (2) that a “causal connection” exists between the Executive Order and that injury, such that the injury is “fairly trace[able] to the” Executive Order or OMB Guidance “and [is] not the result of the independent action of some third party;” and (3) that the injury would “likely” be redressed “by a favorable decision.” Lujan, 504 U.S. at 560. A failure to satisfy any one of these “irreducible constitutional” requirements for Article III standing will preclude granting Plaintiffs’ motion for partial summary judgment. As the Court explains below, each one of the putative rules suffers from one or more deficiencies, disputes, or difficulties that precludes the entry of summary judgment on
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the present record. The Court will limit its analysis to the most evident challenges posed by each
of the putative regulatory measures Plaintiffs identify.11
(i) V2V Proposed Rule
Plaintiffs’ contention that they have established associational standing based on the
injuries that Fleming and Weissman will allegedly sustain due to the delay in finalizing the V2V
rule does not require much analysis beyond that set forth above. As already explained, Plaintiffs
have plausibly alleged that the Executive Order has injured, and will continue to injure, Fleming
11 Under this Court’s local rules, a party opposing a motion for summary judgment is required to submit a “concise statement of genuine issues setting forth all material facts as to which it is contended that there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support that statement.” LRCP 7(h)(1). The Court, moreover, “may assume that facts identified by the moving party in its statement of facts are admitted, unless such a fact is controverted in the genuine issues filed in opposition to the motion.” Id. Here, portions of Plaintiffs’ statement of undisputed material facts at least arguably posit that the Executive Order has caused the delay or withdrawal of the five proposed regulations currently at issue. See, e.g., Dkt. 71-1 at 11, 12, 14, 20 (SUMF ¶¶ 58, 64, 75, 106). And, because the government’s response fails to identify any evidence that would allow a reasonable finder of fact to reject those assertions, see Dkt. 75-1 at 22–23, 25, 29, 39 (Response to SUMF ¶¶ 58, 64, 75, 106), one might conclude—as Plaintiffs contend—that causation should be treated as undisputed.
The Court will not do so, however, for several reasons. First, the local rule says only that the court “may” treat an uncontroverted assertion of fact as undisputed, not that is “shall” do so. Second, the Court has an “independent obligation” to determine whether it has Article III jurisdiction, Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006), and it cannot satisfy that obligation without further factual development. Third, most of the evidence that Plaintiffs have offered, and which they cite in their statement of undisputed material fact, is the same regulatory materials that the government does address in its briefs. Fourth, the government’s response to Plaintiffs’ statement of undisputed material facts at least gestures at responding to that evidence—albeit not in manner that is particularly helpful—by noting that these regulatory materials “speak for themselves.”
Although the Court, accordingly, will not accept Plaintiffs’ invitation to hold that the government has, in effect, defaulted on the question of causation, resolution of the standing issue will require that during the next phase of the proceeding the government more directly address Plaintiffs’ factual contentions.
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and Weissman by delaying issuance of a final V2V rule and thereby interfering with their plans to purchase and use V2V-equipped vehicles several years from now. They have not, however, shown that this asserted “causal connection”—and, by extension, the redressability of their asserted injuries—is beyond genuine dispute. To the contrary, the government plausibly contends that the delay in finalizing the rule is the product of “the kind of run-of-the-mill evaluation of a propose rule that often results in additional consideration and, at times, a decision to take a different substantive approach.” Dkt. 75 at 12. In short, Plaintiffs have presented evidence that the Executive Order has delayed finalization of the rule, but that evidence is disputed, and the government has done more than offer an unsupported denial. That is enough, at this stage, to preclude the entry of summary judgment in favor of Plaintiffs. See Celotex Corp., 477 U.S. at 324.
The Court, accordingly, concludes that Plaintiffs have not met their burden of demonstrating, beyond genuine dispute, that any of their members would have standing in their own right to challenge the Executive Order and OMB Guidance based on the alleged delay in finalizing the V2V rule.
(ii) Airline Baggage Fees Proposed Rule Plaintiffs also argue that the Executive Order and OMB Guidance caused the Department of Transportation to withdraw a rule governing the airline industry that would have benefitted at least one member of Public Citizen. Dkt. 71 at 19–25. In May 2014, the Department issued a notice of proposed rulemaking, proposing to require airlines and ticket agents “to disclose at all points of sale the fees for certain basic ancillary services associated with the air transportation consumers are buying or considering buying.” Transparency of Airline Ancillary Fees and Other
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Consumer Protection Issues, 79 Fed. Reg. 29970 (proposed May 23, 2014).12 Based on the comments received in response to that notice, the Department issued a supplemental notice on January 19, 2017, proposing to “require air carriers, foreign air carriers, and ticket agents to clearly disclose to consumers at all points of sale customer-specific fee information . . . for a first checked bag, a second checked bag, and one carry-on bag wherever fare and schedule information is provided to consumers.” See Transparency of Airline Ancillary Service Fees, 82 Fed. Reg. 7536 (proposed Jan. 19, 2017). The comment period was scheduled to run through March 20, 2017.
On March 14, 2017, however, the Department issued a notice suspending the comment period indefinitely to “allow the President’s appointees the opportunity to review and consider this action.” Transparency of Airline Ancillary Service Fees, 82 Fed. Reg. 13572 (Mar. 14, 2017). For each month from February 2017 through July 2017, the Department did not post a public update on any of its significant rulemakings, and, instead, merely announced: “As [Department of Transportation] rulemakings are being evaluated in accordance with Executive Orders 13771 and 13777, the schedules for many ongoing rulemakings are still to be determined, so we will not post an Internet Report for the month.” See Significant Rulemaking Reports by Year, 2017.13 Then, from August through October 2017, the Department indicated in its monthly Significant Rulemaking Reports that the “stage” for the airline baggage fees proposed rule was “undetermined.” Id. And, finally, in December 2017, the Department published a one-page notice in the Federal Register withdrawing the proposed rulemaking. See Transparency of
12 RIN: 2105-AE56 13 Available at: https://www.transportation.gov/regulations/significant-rulemaking-reportarchive.
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Airline Ancillary Service Fees, 82 Fed. Reg. 58778 (Dec. 14, 2017). According to that notice, “[a]fter a careful review, the Department has determined to withdraw the” proposed rule. Id. at 58778. The notice explained that “[t]he Department is committed to protecting consumers from hidden fees and to ensuring transparency” but that it did “not believe that Departmental action is necessary to meet this objective at this time” because “[t]he Department’s existing regulations already provide consumers some information regarding fees for ancillary services.” Id. The notice further specified that “[t]he withdrawal corresponds with the Department’s and Administration’s priorities and is consistent with the Executive Order 13771.” Id.
Plaintiffs contend that this series of actions and the Department’s own statements show that the Department’s decision to withdraw the proposed rule “was attributable to the Executive Order.” Dkt. 71 at 23. That decision, they further contend, caused at least one of Public Citizen’s members, Amy Allina, to suffer a cognizable and redressable injury. Id. at 22–23. In support of this contention, they offer a declaration in which Allina attests that she travels “by air an average of 6–8 times per year;” that she purchases tickets from various airlines, using various online sites; that she decides which airline tickets to purchase based, in part, on baggage fees; that searching websites for baggage-fee information is time consuming; that she has incurred baggage-fees based on a lack of information regarding the airline’s policy; and, finally, that she has reviewed the proposed rule and believes that, “if finalized,” it “would save [her] time” in determining baggage fees and the true cost of booking a flight. Dkt. 64-4 at 1–2 (Allina Decl. ¶¶ 3–5).
The government responds that Plaintiffs have failed to establish that the Executive Order or OMB Guidance caused the Department to withdraw the proposed rule, and they identify a number of reasons to question Plaintiffs’ inference. Most notably, they point to the
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Department’s assertion that, after careful study, it concluded that the proposed rule was unnecessary to protect “consumers from hidden fees and to ensur[e] transparency” and that “existing regulations already provide consumers some information regarding fees for ancillary services.” 82 Fed. Reg. at 58778; see also Dkt. 75 at 8–9. The government also disputes Plaintiffs’ reading of the statement “[t]he withdrawal . . . is consistent with Executive Order 13771,” contained in the notice withdrawing the rule. 82 Fed. Reg. at 58778; see also Dkt. 75 at 8. According to the government, “‘consistent’ with . . . does not mean . . . because of,” particularly when read in light of the Department’s further assertion that it withdrew the proposed rule because, on further consideration, it was deemed unnecessary. Id. (emphasis added). For similar reasons, the government also argues that the “temporal proximity” of the Department’s decision to withdraw the rule and the adoption and implementation of the Executive Order is insufficient to establish causation. Id. at 9. What matters, according the government, is the rationale stated in the notice withdrawing the rule, which must be afforded the presumption of good faith—and not temporal proximity, other statements made in the Department’s Significant Rulemaking Reports, or a passing reference to the Executive Order in the final notice.
For present purposes, the Court need not decide whether the proposed rule was withdrawn because of, or merely consistent with, the Executive Order and OMB Guidance. The evidence that Plaintiffs proffer is far from conclusive, and absent a showing “that there is no genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), Plaintiffs are not entitled to summary judgment on the issue of standing.
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(iii) Prevention of Workplace Violence in Healthcare Rule Plaintiffs further contend that their members will be injured by the Executive Order because it has delayed the Occupational Safety and Health Administration’s promulgation of a safety standard addressing workplace violence in healthcare. At this early stage of the rulemaking process, however, Plaintiffs cannot show beyond genuine dispute that the agency has delayed issuing a rule—whether because of the Executive Order or for any other reason. The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., authorizes the Secretary of Labor to issue occupational safety or health standards. 29 U.S.C. § 655(b). Once the Secretary has identified a “significant” risk, he has a “duty to . . . add[] measures so long as they afford [a] benefit and are feasible.” Bldg. & Constr. Trades Dep’t, AFL-CIO v. Brock, 838 F.2d 1258, 1269 (D.C. Cir. 1988). In December 2016, the Occupational Safety and Health Administration (“OSHA”) of the Department of Labor issued a Request for Information (“RFI”), seeking input on “whether a standard is needed to protect healthcare and social assistance employees from workplace violence” and seeking comments “on issues that might be considered in developing a standard, including scope and the types of controls that might be required.” 81 Fed. Reg. 88147 (Dec. 7, 2016).14 The next month, OSHA granted citizen petitions from “a broad coalition of labor unions” and “the National Nurses United” for “a standard preventing workplace violence,” see Fall 2018 Agenda, and agreed to commence a rulemaking to address the hazards of workplace violence in the healthcare and social assistance industries,” Letter from David Michaels, Administrator of OSHA to Rep. Bobby Scott, Jan. 8, 2017. The period to submit comments in response to the RFI closed on April 6, 2017. See 81 Fed. Reg. at 88147.
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Plaintiffs allege that the Executive Order has prevented the development of the standard. They argue, in particular, that because “OSHA has taken no public action on the rulemaking” since the close of the RFI comment period, and because it “moved the workplace-violenceprevention rulemaking to ‘[l]ong-[t]erm [a]ctions’ [of the Unified Agenda]” after OMB had instructed the agency to implement Executive Order 13771, one can reasonably infer the Executive Order has delayed OSHA from acting. Dkt. 71 at 32. But, since the close of the RFI, OSHA has, in fact, moved the rule to the “pre-rule stage,” and it has indicated that it will initiate the Small Business Regulatory Enforcement Fairness Act (“SBREFA”) process in March of this year. Fall 2018 Agenda. Although almost a year has passed since the comment period for the RFI closed, the Court cannot conclude that Plaintiffs have established beyond genuine dispute that issuance of a proposed rule, much less a final rule, has been delayed by the Executive Order or the OMB Guidance. To the contrary, as the Court discussed in Public Citizen I, almost seven years passed from the time OSHA issued an RFI on infectious diseases to the time it planned to issue a proposed rule, and that far more substantial delay occurred before the Executive Order was adopted. 297 F. Supp. 3d at 24. Even assuming that seven years is well out of the ordinary, the Court cannot conclude on the present record that the passage of time since the workplace violence RFI comment period closed, even when considered in light of when the Executive Order was issued and in light of the regulatory pronouncements upon which Plaintiffs rely, is sufficient to establish beyond genuine dispute that the Executive Order has delayed issuance of a proposed workplace violence rule.
Plaintiffs face another hurdle as well. Even if Plaintiffs could show that any such delay has substantially increased the risk that one of their members will suffer a workplace injury and that, once that increased risk is taken into account, there is a substantial probability that such a
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member will suffer such an injury, see Pub. Citizen I, 297 F. Supp. 3d at 29 (discussing Pub. Citizen, Inc. v. NHTSA, 489 F.3d 1279, 1296 (D.C. Cir. 2007)), they have not shown that invalidating the Executive Order or OMB Guidance would redress that increased risk of harm. That is because, at least the record now stands, the Court has no basis to conclude that the putative regulation is even subject to the Executive Order. To the contrary, it appears that OMB has yet to determine whether the rule, if issued, would constitute a “major rule,” subject to the Executive Order’s directives. See Fall 2018 Agenda; Final Guidance, Q&A 2.
OSHA’s workplace violence rule, accordingly, cannot establish Plaintiff’s standing beyond material dispute.
(iv) Efficiency Standards for Cooking Products and Water Heaters Finally, Plaintiffs contend that the Executive Order and OMB Guidance have delayed the Department of Energy from establishing two new energy-efficiency standards: one for residential cooking products and the other for water heaters. But, as explained below, Plaintiffs have again failed to demonstrate as a matter of undisputed material fact that either the Executive Order or OMB Guidance has delayed the finalization of these proposed rules. The Energy Policy and Conservation Act of 1975, 42 U.S.C. § 6201 et seq., established energy conservation standards for various consumer products and for certain commercial products, but also authorizes the Department of Energy to impose more stringent standards that are “technologically feasible,” “economically justified,” and will save a significant amount of energy. See, e.g., 42 U.S.C. § 6295(o); see also Hearth, Patio & Barbecue Ass’n v. Dep’t of Energy, 706 F.3d 499, 450–51 (D.C. Cir. 2013). The statute further provides that, no later than six years after issuance of a final rule establishing or amending a standard, the Department must publish either a notice of determination that the existing standard need not be amended or notice
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of a proposed rulemaking with respect to an amended energy-efficiency standard. 42 U.S.C. § 6295(m)(1). If the Department issues a notice of proposed rulemaking pursuant to the six-year look back provision, it is required to “publish a final rule amending the standard for the product” within two years of publishing the notice of proposed rulemaking. Id. § 6295(m)(3)(A).
Plaintiffs identify two such required proceedings, which they contend have been unlawfully delayed by the Executive Order. First, Plaintiffs rely on a proposed rulemaking to set more stringent energy-efficiency standards for residential cooking products, such as residential ovens; and, second, they invoke a proposed rulemaking to set more stringent energy-efficiency standards for commercial water hearing equipment. See Dkt. 71 at 37; see also id. at 41. As with the V2V rulemaking, they contend that the Executive Order has delayed finalization of these rules and that, as a result, some of their members (and Public Citizen itself) will be unable to purchase desirable products that would otherwise be available. Id. at 40; 42; see also Competitive Enter. Inst., 901 F.2d at 112–13. They further contend, moreover, that one NRDC member, R.J. Mastic, has “a direct professional and business interest in having wider access to affordable energy-efficient commercial water-heating equipment, with a range of features,” Dkt. 71 at 42, because he is in the business of “help[ing] commercial property owners increase the efficiencies of their buildings,” Dkt. 64-7 at 1–2 (Mastic Decl. ¶ 3). The Court will address each rulemaking in turn.
The first of the relevant proceedings commenced in June 2015, when the Department of Energy published a notice proposing “new and amended energy conservation standards for residential conventional ovens,” and, at the same time, deferring a decision whether to adopt new standards for “conventional cooking tops.” Energy Conservation Program: Energy Conservation
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Standards for Residential Ovens, 80 Fed. Reg. 33030 (proposed June 10, 2015).15 After a public meeting and after receiving public comments, the Department issued a supplemental notice of proposed rulemaking in September 2016, which proposed standards for both residential ovens and cooking tops. Energy Conservation Program: Energy Conservation Standards for Residential Conventional Cooking Products, 81 Fed. Reg. 60784 (proposed Sept. 2, 2016). Subsequently, the Department issued a notice extending the public comment period until November 2016. See Energy Conservation Program: Energy Conservation Standards for Residential Conventional Cooking Products, 81 Fed. Reg. 67219 (Sept. 30, 2016). According to the most recent entry in the Unified Agenda, the Department intends to issue a second, supplemental notice of proposed rulemaking sometime this month. Fall 2018 Agenda.
Based on the current record, the Court cannot conclude that Plaintiffs have established beyond genuine dispute that the Executive Order or OMB Guidance has delayed the Department in finalizing the residential cooking products energy-efficiency rule. To be sure, the Department will be required by the Executive Order and OMB Guidance to find a cost offset. Final Guidance, Q&A 33. The Department’s most recent annual cost estimate for the proposed rule of $42.6 million, 81 Fed. Reg. at 60789, however, is several orders of magnitude less than the $2.2 to $5 billion cost estimate for the V2V rule, Dkt. 67 at 22 (Second Am. Compl. ¶ 76), and it, accordingly, does not raise the immediate question how the Department could possibly find an adequate offset. But, even more significantly, Plaintiffs correctly note that the Energy Policy and Conservation Act requires the Department to issue a final rule within two years of its publication of a proposed rule. Dkt. 71 at 37 (citing 42 U.S.C. § 6295(m)(3)(A)). Although Plaintiffs argue that the two-year period has now passed, it is far from clear that either the
15 RIN: 1904-AD15 47

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Executive Order or OMB Guidance is to blame. To the contrary, the OMB Guidance specifies that the Executive Order “does not prevent agencies from issuing regulatory actions in order to comply with an imminent statutory . . . deadline, even if they are not able to satisfy [the Executive Order’s] requirements by the time of issuance.” Final Guidance, Q&A 33. Finally, unlike the V2V rule, which is currently designated for “[l]ong-[t]erm [a]ction” on the Unified Agenda, Fall 2018 Agenda, the residential cooking products rule remains active, with a planned supplemental notice of proposed rulemaking imminently forthcoming, Fall 2018 Agenda.
The second energy-efficiency standard that Plaintiffs invoke—the commercial water heater rule—raises similar questions that preclude the Court from granting partial summary judgment in Plaintiffs’ favor. Administrative proceedings with respect to that rule commenced in May 2016, when the Department issued a notice proposing to adopt more stringent energyefficiency “standards for certain commercial water heating equipment.” Energy Conservation Program: Energy Conservation Standards for Commercial Water Heating Equipment, 81 Fed. Reg. 34440 (proposed May 31, 2016).16 After receiving a number of requests for additional time, the Department extended the comment period until August 30, 2016. See Energy Conservation Program: Energy Conservation Standards for Commercial Water Heating Equipment; Reopening of Comment Period, 81 Fed. Reg. 51812 (Aug. 5, 2016). Then, in December 2016, the Department published an updated analysis relating to the proposed rule, with a comment period extending into early 2017. See Energy Conservation Standards for Commercial Water Heating Equipment: Availability of Updated Analysis Results, 81 Fed. Reg. 94234 (Dec. 23, 2016).
16 RIN: 1904-AD34 48

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In October 2018, however, the Department received a petition requesting that it withdraw the proposed energy-efficiency standard on the ground that the proposed standard “would result in the unavailability of ‘performance characteristics’ within the meaning of the Energy Policy and Conservation Act,” and, in early November, the Department published a notice seeking comments on the petition. See Energy Conservation Program: Energy Conservation Standards for Residential Furnaces and Commercial Water Heaters, Notice of Petition for Rulemaking, 83 Fed. Reg. 54883 (Nov. 1, 2018). Although that comment period was set to close on January 30, 2019, the Department received requests from interested parties—including NRDC—to extend the comment period to allow time “to develop additional data relevant to the petition,” and, on January 29, 2019, the Department granted that request and extended the comment period until March 1, 2019. Energy Conservation Program: Energy Conservation Standards for Residential Furnaces and Commercial Water Heaters, 84 Fed. Reg. 449 (Jan. 29, 2019).
In light of this history, the Court cannot conclude that Plaintiffs have shown beyond genuine dispute that the Executive Order or OMB Guidance has delayed finalization of the proposed, amended standard. Although the Court need not—and cannot—resolve that factual issue on the present record, it appears that the delay is more likely the product of disagreement about the substance of the proposed rule. Moreover, as with the residential cooking products standard, Plaintiffs’ contention that the Department was required by statute to issue a final rule in or before April 2018 does little to advance their position. As explained above, the OMB Guidance provides that such a statutory requirement must be observed, notwithstanding the Executive Order. It is, of course, possible that the Department is nonetheless reluctant to issue the final rule because its cost might prevent the Department from taking other, possibly higher priority actions. But that possibility, at this point, is both speculative and at odds with the
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evidence that the Department remains engaged in an effort to assess the proposed rule on the merits. In any event, the Court has no difficulty in concluding that Plaintiffs have failed to meet their burden on summary judgment of showing that the proposed rule has been delayed because of the Executive Order.
b. Organizational Standing Plaintiffs also contend that they have organizational standing to sue in their own right. As they argued during the last round of briefing, Plaintiff contend that the Executive Order and OMB Guidance have put them to “an untenable choice”—either to urge agencies “to adopt new regulations, when adopting those regulations would depend on the repeal of existing regulatory safeguards” that they support, or to “refrain[] from advocating for new public protections to avoid triggering the need to repeal existing ones.” Dkt. 71 at 46–47. According to Plaintiffs, this dilemma undermines their ability to pursue their respective missions of advocating for health and safety, consumer protection, the environment, and improved working conditions, and, as a result, the Executive Order and OMB Guidance are causing Plaintiffs a cognizable and redressable injury in fact. The Court rejected this theory of standing in Public Citizen I for two reasons. First, assuming without deciding that “injury to ‘pure issue-advocacy’ can support standing,” Pub. Citizen I, 297 F. Supp. 3d at 37, the Court concluded that Plaintiffs had “neither alleged nor offered any evidence that any of them ha[d], in fact, declined—or [were] imminently likely to decline—to advocate for a new rule out of fear that the Executive Order would compel the repeal of existing rules,” id. at 38. Rather, they “merely assert[ed] that they have been forced to consider the issue,” and, as the Court explained, “having ‘to think twice’ before engaging in advocacy . . . does not constitute a cognizable injury in fact.” Id. Second, and in the alternative,
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the Court held that Plaintiffs had failed plausibly to allege causation. Id. That is, even assuming that Plaintiffs had alleged or shown that they had declined, or would likely decline, to pursue a regulatory initiative out of fear that, by doing so, they would provoke the relevant agency to rescind a rule that they support, Plaintiffs had not drawn a sufficient causal connection to the Executive Order or OMB Guidance. Id. As the Court explained, the Supreme Court’s decision in Clapper v. Amnesty International USA establishes that a plaintiff “may not turn an unduly speculative or hypothetical injury into a concrete injury ‘by inflicting harm on themselves based on their fears of [the] hypothetical future harm.’” Pub. Citizen I, 297 F. Supp. 3d at 38–39 (quoting Clapper, 568 U.S. at 416). Applying that principle to Plaintiffs’ theory, the Court concluded that the chill that Plaintiffs alleged was based on an unduly speculative fear of future harm. Id. at 39. “[O]ne could only speculate,” for example, “about whether the relevant agency would agree to issue the [proposed] rule” that Plaintiffs supported, “about which rules might be repealed in response, about whether those rules would not have otherwise been repealed, and about whether an identifiable member of one of the plaintiff-associations would suffer a cognizable injury-in-fact as a result.” Id.
In renewing their advocacy-chill theory of standing, Plaintiffs candidly concede that they address only the first of the two problems identified in Public Citizen I. Dkt. 71 at 47. With respect to that shortcoming, they now offer the declaration of Mae Wu, a senior attorney with NRDC, attesting that the organization has “decided not to pursue a rulemaking petition to EPA specifically because of the Executive Order.” Dkt. 64-13 at 2 (Wu Decl. ¶ 7). Specifically, she attests that “NRDC has decided not to petition EPA for new drinking water standards for contaminants including PFOA and PFOS, microcystins, and legionella” because, if “NRDC’s petition were to succeed[,] EPA would have to repeal two or more existing regulations to offset
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costs, which would likely undermine other health protections and harm NRDC’s members.” Id. at 2–3 (Wu Decl. ¶ 7).
Little turns on the adequacy of this factual proffer, however, because the Court remains convinced that its alternative holding is both sound and sufficient.17 For present purposes, Plaintiffs do not press the point but, rather, merely preserve the question “for possible appeal.” Dkt. 71 at 47. The Court, in turn, will not rehash the issue. Suffice it to say that a plaintiff cannot establish standing based on the “the chilling of [its] advocacy” unless that chill is the product of a concrete and non-speculative fear of harm. Pub. Citizen I, 297 F. Supp. 3d at 38– 39. The EPA, however, reports that it has taken thirty-three deregulatory actions since the Executive Order was issued and that it has another forty-one deregulatory actions “under development.” EPA Deregulatory Actions.18 As just this one example shows, it is far from clear—and certainly far from sufficient to satisfy the summary judgment standard—that NRDC would risk inducing the EPA to take some additional, otherwise unplanned, deregulatory action were it to petition the agency to adopt new drinking water standards for contaminants including PFOA and PFOS, microcystins, and legionella.
* * * The Court will, accordingly, deny Plaintiffs’ motion for summary judgment.
17 Although the Court need not address the issue here, the government argues that it “lack[s] information as to the truth or falsity of” whether the Executive Order has prevented NRDC from petitioning for new drinking water standards claim, “because Defendants have not yet been afforded the opportunity to conduct discovery into these allegations.” Dkt. 75-1 at 15 (Def’s Response to SUMF ¶ 36). A party seeking discovery at summary judgment, however, must “show[] by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). Although the government has presented a declaration laying out the need for discovery on a number of Plaintiffs’ claims, the declaration makes no mention of the drinking water standard and NRDC’s claims that the Executive Order has prevented it from petitioning the EPA. See Dkt. 75-2 (Second Bensing Decl.). 18 Available at: https://www.epa.gov/laws-regulations/epa-deregulatory-actions.
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3. Disposition Having concluded that the government’s facial motion to dismiss must be denied, and that Plaintiffs’ cross-motion for partial summary judgment fails as well, the Court must address next steps. This case currently sits in a liminal state. The Court, of course, cannot consider the merits of Plaintiffs’ underlying claims without first concluding that it has jurisdiction. See Steel Co., 523 U.S. at 94–95. But nor can either party move forward absent further factfinding. The government argues that it needs “an opportunity to investigate and take discovery on Plaintiffs’ conclusory claims that the Executive Order will affect a particular regulatory activity and thereby cause injury to the organizational Plaintiffs or their members.” Dkt. 75-2 at 3 (Second Bensing Decl. ¶ 7). Plaintiffs likewise need more information to press their claim that the Executive Order and OMB Guidance have delayed or derailed the proposed rules they have identified. In fashioning next steps, “[t]he [C]ourt has considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction,” Prakash, 727 F.2d at 1179, and, although the Court will consider “whether limited discovery to explore jurisdictional facts is appropriate,” Obama v. Klayman, 800 F.3d 559 (D.C. Cir. 2015), there may be other vehicles—short of formal discovery—to tee up the unresolved factual issues for decision. The Court will, accordingly, schedule a status conference to discuss next steps and how best to move this case closer to resolution. B. The States’ Motion to Intervene as Plaintiffs There is one additional matter that the Court must address. Plaintiffs are not alone in seeking to challenge the Executive Order and OMB Guidance. The states of California and Oregon have moved to intervene as of right under Federal Rule of Civil Procedure 24(a) or, in the alternative, for permissive intervention under Rule 24(b). Dkt. 73. According to the
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proposed intervenors, they “have unique interests in the health and well-being of their citizens, natural resources, infrastructure, institutions, and economies, among other things, and these interests cannot be adequately represented by the NGO Plaintiffs.” Id. at 19. In support of their motion, the proposed intervenors have also filed a request for judicial notice of seven publications (in either full or excerpted form) “downloaded from the websites of California, Oregon, and the United States government agencies,” Dkt. 81 at 5, which purportedly support their claim of standing. The government opposes the intervention, see Dkt. 77, but has not taken a position with respect to the request for judicial notice. The Court will therefore grant the request for judicial notice. But, because this Court’s jurisdiction remains in doubt for the reasons discussed above, the Court must deny the States’ motion to intervene as premature.
“The general rule is that ‘[i]ntervention presupposes the pendency of an action in a court of competent jurisdiction.’” Aeronautical Radio, Inc. v. F.C.C., 983 F.2d 275, 283 (D.C. Cir. 1993) (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1917, at 457 (2d ed. 1986)). As a result, “intervention will not be permitted to breathe life into a ‘nonexistent’ law suit,” Fuller v. Volk, 351 F.2d 323, 328 (3d Cir. 1965) (cited with approval in Aeronautical Radio, 983 F.2d at 283). “[T]his rule is so deeply entrenched in our jurisprudence that it is an axiomatic principle of federal jurisdiction in every circuit to have addressed the question.” Disability Advocates, Inc. v. New York Coal. for Quality Assisted Living, Inc., 675 F.3d 149, 160–61 (2d Cir. 2012); see also Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2462–63 (2018) (assuming that a lack of Article III standing cannot be cured by an intervenor’s standing but holding that a district court may nonetheless treat an intervenor’s complaint as the operative complaint in a new lawsuit).
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The threshold question posed by any motion to intervene, accordingly, is whether there is a case in which to intervene. See Ruiz v. Estelle, 161 F.3d 814, 832 (5th Cir. 1998) (intervention “presumes that a justiciable case or controversy already exists before the court”). Because that question remains unresolved at this point in the litigation, California and Oregon’s motion to intervene is premature. The Court will, accordingly, deny their motion without prejudice. Should the Court subsequently conclude that one or more of the existing Plaintiffs have standing, California and Oregon may renew their motion to intervene at that time.
CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss, Dkt. 70, is hereby DENIED, and Plaintiffs’ motion for partial summary judgment, Dkt. 71, is also DENIED. It is further ORDERED that the motion to take judicial notice, Dkt. 81, is GRANTED, and the motion for intervention, Dkt. 73, is DENIED without prejudice. SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: February 8, 2019
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 Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)

435 F.Supp.3d 144 United States District Court, District of Columbia.
PUBLIC CITIZEN, INC., et al., Plaintiffs, v.
Donald J. TRUMP, et al., Defendants.
Civil Action No. 17-253 (RDM) |
Signed December 20, 2019
Synopsis Background: National consumer advocacy group, national environmental and public health organization, and international labor union filed suit challenging lawfulness of President’s executive order and two guidance documents issued by Office of Management and Budget (OMB) that implemented executive order, imposing new restrictions on administrative process, allegedly in violation of Administrative Procedure Act (APA) and President’s constitutional authority under Article II and his duty to execute legislation under Take Care Clause, by requiring agencies to identify two existing regulations to be repealed for every new regulation and to offset private costs of compliance posed by new regulations by eliminating costs associated with existing regulations, and imposing annual regulatory cap on incremental regulatory costs each agency could introduce. Parties filed cross-motions for summary judgment.
The District Court, Randolph D. Moss, J., held that plaintiffs lacked associational standing.
Defendants’ motion granted, and plaintiffs’ motion denied.
Procedural Posture(s): Motion for Summary Judgment.
Attorneys and Law Firms
*145 Scott Lawrence Nelson, Allison Marcy Zieve, Public Citizen Litigation Group, Washington, DC, Patti A. Goldman, Earthjustice, Seattle, WA, for Plaintiffs.
Christopher M. Lynch, Daniel Edward Bensing, Michael
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Leon Drezner, U.S. Department of Justice, Brett A. Shumate, Jones Day, Washington, DC, for Defendants
MEMORANDUM OPINION
RANDOLPH D. MOSS, United States District Judge
The question whether Plaintiffs have standing to challenge the lawfulness of Executive Order 13,771 and the related Office of Management and Budget (“OMB”) Guidance is now before the Court for a *146 third time. The first time that question was presented, the Court granted Defendants’ motion to dismiss, holding that Plaintiffs had failed to carry their threshold burden of alleging or proffering facts sufficient to establish Article III standing. Pub. Citizen, Inc. v. Trump (“Public Citizen I”), 297 F. Supp. 3d 6, 12 (D.D.C. 2018). With leave of the Court, Plaintiffs then filed an amended complaint and moved for partial summary judgment on the sole issue of their standing, Dkt. 67; Dkt. 71, and Defendants moved, once again, to dismiss for lack of standing, Dkt. 70. That time, the Court held that Plaintiffs had met their burden of plausibly alleging that they have standing and therefore denied Defendants’ motion to dismiss. Pub. Citizen, Inc. v. Trump (“Public Citizen II”), 361 F. Supp. 3d 60, 64 (D.D.C. 2019). But, the Court concluded that Plaintiffs had failed to adduce undisputed evidence sufficient to establish their standing. Id. In particular, the Court concluded that Plaintiffs had fallen short in their effort to establish that the Executive Order, rather than separate policy considerations or other factors, caused any delay in issuing a final rule or withdrawal of a rule. Id. at 91. The Court, accordingly, denied Defendants’ motion to dismiss and denied Plaintiffs’ cross-motion for summary judgment. Id. at 93. It then granted Plaintiffs leave to take limited discovery concerning whether the Executive Order had caused any relevant delay or withdrawal of a rule. See Dkt. 89 at 2, 5. Following the completion of discovery, Plaintiffs have once again moved for partial summary judgment on the issue of standing, Dkt. 95, and Defendants have cross-moved for summary judgment on the same issue, Dkt. 96. The Court now concludes that Plaintiffs have not established their standing and will, accordingly, dismiss the action for lack of Article III

Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)
jurisdiction.
In reaching that decision, the Court is mindful that Plaintiffs are large associations with several hundred-thousand members, see Dkt. 14 at 4–7 (Am. Compl. ¶¶12–14); that Plaintiffs and their members have wide-ranging interests in government regulation in areas relating to consumer protection, public health and safety, the environment, and workers’ rights, id.; and that the stated goal and presumptive effect of the Executive Order is to reduce existing federal regulations as well as to discourage the promulgation of new regulations in these and other arenas, see Exec. Order No. 13,771, 82 Fed. Reg. 9,339 (Jan. 30, 2017). Against this backdrop, it is certainly plausible, and perhaps likely, that the Executive Order and the OMB Guidance have delayed or derailed at least some regulatory actions that, if adopted, would materially benefit Plaintiffs or some of their members. But, for several reasons, it is hard to say with the requisite degree of confidence which actions those are, what would have occurred in the absence of the Executive Order, how any identifiable individual (or entity) is harmed, and whether any such harm—or risk of harm—is sufficient to establish standing. It is hard to know because, as counsel for the government has acknowledged, “neither the Executive Order nor the OMB Guidance provides a mechanism for notifying the public whether and when a proposed ... regulatory action [has been] delayed or abandoned due to the requirements of the Executive Order. Pub. Citizen II, 361 F. Supp. 3d at 67 (citing Dkt. 56 at 64 (Tr. Oral Arg. 64:7–22). It is hard to know because agency decisions about whether and how quickly to move forward with regulatory initiatives are often informed by a variety of considerations, and, when agencies simply delay acting on discretionary regulatory initiatives, those considerations are seldom a matter of public record. And, it is hard to *147 know because the Executive Order does not stand alone but, rather, reflects the current Administration’s more general wariness of federal regulation. See, e.g., Exec. Order No. 13,771, 82 Fed. Reg. 9,339 (Jan. 30, 2017) (generally asserting that “[i]t is essential to manage the costs associated with the government imposition of private expenditures required to comply with Federal regulations.”); see also Public Citizen I, 297 F. Supp. 3d at 26 (noting that delays in finalizing rules could be “attributed to a change in administration and a shift in policy priorities”); Public Citizen II, 361 F. Supp. 3d at 64 (recognizing a “general change in policy between administrations” and that “the administration has reported, in general, its efforts to reduce regulation”).
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Even in this unusual context, however, Plaintiffs bear the burden of establishing their standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). They must show that the future injury that they allege is both “certainly impending,” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013), and “redressable by a favorable ruling,” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 150, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010), and they must demonstrate that they will suffer a cognizable, “personal and individual,” as opposed to a generalized, harm in the absence of judicial intervention, Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130. The risk that government action might otherwise escape judicial review does not justify reallocating Plaintiffs’ burden of proof or exercising jurisdiction based on conjecture or speculation. See id. at 560, 112 S.Ct. 2130 (Lujan requirements are “irreducible”); Clapper, 568 U.S. at 411–13, 420–21, 133 S.Ct. 1138. The Court has provided Plaintiffs with three opportunities to meet this burden and, most recently, allowed Plaintiffs to take focused discovery in aid of establishing jurisdiction. Notwithstanding these opportunities and Plaintiffs’ vigorous efforts—including the submission of multiple declarations, the identification of well over a dozen purported regulatory actions or inactions, the amendment of their complaint, and extensive briefing on multiple theories of associational and organizational standing—Plaintiffs have failed to carry their burden.
The Court will, accordingly, deny Plaintiffs’ motion for partial summary judgment, Dkt. 95, and will grant Defendants’ cross-motion for summary judgment for lack of standing, Dkt. 96.
I. BACKGROUND
A. Executive Order 13,771 and OMB Guidance Because the Court has previously described the challenged Executive Order and OMB Guidance at length, Public Citizen I, 297 F. Supp. 3d at 13–15; Public Citizen II, 361 F. Supp. 3d at 65–68, the Court will do so only briefly here. Executive Order 13,771 imposes three restrictions on the authority of agencies to adopt or to propose new regulations: a “two for one” requirement; an

Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)
“offset” requirement; and an “annual cap” on the net costs covered regulations. Exec. Order No. 13,771, 82 Fed. Reg. 9,339 (Jan. 30, 2017). First, the “two for one” requirement provides that “whenever an executive department or agency ... publicly proposes for notice and comment or otherwise promulgates a new regulation,” the agency must “identify at least two existing regulations to be repealed.” Id. § 2(a). Second, the “offset” requirement provides that agencies must offset “any new incremental cost associated with new regulations” by eliminating “existing costs associated with at least two prior regulations.” Id. § 2(c). Finally, the “annual cap” provision prohibits an agency *148 from adopting new regulations that, in the aggregate, exceed the agency’s “total incremental cost allowance” for the year. Id. § 3(d). The total cost allowance—or “cap”—is set each year by the Director of OMB and may be zero, positive, or negative. Id. An agency’s total incremental cost is derived by summing the costs of each new regulations adopted in the relevant year, less any cost savings achieved through the repeal of existing regulations. Id.
OMB issued interim guidance regarding the meaning and implementation of the Executive Order on February 2, 2017, and it issued final guidance on April 5, 2017. See OMB, Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 (2017) (“Interim Guidance”); OMB, Guidance Implementing Executive Order 13,771 (2017) (“Final Guidance”). In the Final Guidance, OMB explained that the Executive Order applies only to “significant regulatory action[s]” and “significant guidance document[s],” Final Guidance, Q & A 2, which, in turn, means that the action is likely to “[h]ave an annual effect on the economy of $ 100 million or more” or that it meets other, specified criteria, Exec. Order No. 12,866 § 3(f), 3 C.F.R. 638 (1994). Deregulatory actions, in contrast, need not qualify as “significant” to factor into the required calculus. Final Guidance, Q & A 4.
Importantly, the OMB Guidance further explains, the Executive Order 13,771 considers only compliance costs borne by regulated parties; it does not consider the public benefit of the existing or proposed rule. See Final Guidance, Q & A 21, 32; Interim Guidance at 4. Agencies must determine the present value of the costs of the regulatory or the savings of deregulatory action “over the full duration of the expected effects of the action[ ].” Final Guidance, Q & A 25. An agency’s “total incremental cost” for a fiscal year “means the sum of all costs from” significant regulatory actions and guidance documents “minus the cost savings from ... deregulatory
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actions.” Id., Q & A 8. Agencies may, however, “bank” cost savings and deregulatory actions “for use in the same or a subsequent fiscal year” to offset significant regulatory actions or guidance documents and to meet their “total incremental cost allowance[s].” Id., Q & A 29.
The Executive Order recognizes that agencies face various statutory obligations, and it does not—and could not—purport to override those obligations. Rather, agencies are directed to implement the Executive Order in a manner “consistent with applicable law” and are cautioned that “[n]othing in th[e] [O]rder shall be construed to impair or otherwise affect ... the authority granted by law to an executive department or agency.” Exec. Order No. 13,771 § 5, 82 Fed. Reg. 9,339 (Jan. 30, 2017). In this vein, recognizing that certain federal statutes prohibit agencies from considering costs in determining to take a significant regulatory action, the OMB Guidance explains that the Executive Order does not “change the agency’s obligations under [such a] statute.” Final Guidance, Q & A 18. Nevertheless, agencies implementing these statutory obligations are “generally ... required to offset the costs of such regulatory actions through other deregulatory actions taken pursuant to statutes that do not prohibit consideration of costs.” Id. If an agency faces an imminent statutory (or judicial) deadline for taking a regulatory action, the Executive Order “does not prevent” the agency from complying with that deadline, even if it cannot first satisfy the Executive Order’s mandates. Id., Q & A 33. The agency must, however, “offset [the] regulatory action[ ] as soon as practicable thereafter.” Id. Finally, although the Executive Order creates incentives for agencies to *149 rescind existing regulations—and, when an agency is assigned a negative annual cap, requires it—the OMB Guidance prohibits agencies from relying on the Executive Order “as the basis or rationale, in whole or in part, for” taking a deregulatory action. See Final Guidance, Q & A 37 (emphasis added).
B. Procedural Background Plaintiffs Public Citizen, Inc. (“Public Citizen”), the Natural Resources Defense Council, Inc. (“NRDC”), and the Communication Workers of America, AFL-CIO (“CWA”) brought this action against the President, the Director of OMB, the heads of thirteen federal agencies, and the United States in February 2017. Dkt. 1. They challenged Executive Order 13,771 as ultra vires and

Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)
violative of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., and the Constitution, Dkt. 1 at 5–6, 43–46 (Compl. ¶¶ 9, 121–47), and they challenged the OMB Guidance on similar grounds, id. at 46–48 (Compl. ¶¶ 148–61).
Defendants moved to dismiss for lack of standing and for failure to state a claim. Dkt. 9. Plaintiffs amended their complaint as of right, adding additional allegations to bolster their claim that they had standing to sue. See Dkt. 14 (First Am. Compl.). Defendants then renewed their motion to dismiss, Dkt. 15, and Plaintiffs cross-moved for summary judgment, Dkt. 16. The Court concluded that Plaintiffs had not plausibly alleged either associational or organizational standing and therefore granted Defendants’ motion to dismiss and denied Plaintiffs’ motion for summary judgment. Public Citizen I, 297 F. Supp. 3d at 40. Most notably, Plaintiffs argued that the Executive Order had delayed finalization of various environmental, public health, and public safety regulations and that this delay substantially increased the risk that several of their members would face a substantial probability of future harm. Id. at 28. That increased-risk-of-harm theory of standing is not easily satisfied, and the Court held that Plaintiffs had failed to allege facts or to adduce evidence sufficient to clear that hurdle. Id. at 29. The Court also rejected an array of additional theories of standing, including Plaintiffs’ contention that one or more of the plaintiff-associations had organizational standing. Id. at 40.
Plaintiffs then moved for leave to file a second amended complaint. Dkt. 64. Defendants did not oppose that motion, Dkt. 65, and the Court granted Plaintiffs leave to amend, Minute Order (Apr. 20, 2018). Defendants, once again, moved to dismiss for lack of standing, Dkt. 70, and Plaintiffs cross-moved for partial summary judgment on standing, Dkt. 71. This time, the Court concluded that Plaintiffs had met their threshold burden of plausibly alleging that they had standing to sue—based on additional allegations and their reliance on a new theory of standing—and, accordingly, denied Defendants’ motion to dismiss. Public Citizen II, 361 F. Supp. 3d at 83. In particular, the Court was convinced that Plaintiffs had plausibly alleged that (1) two members of Public Citizen—Amanda Fleming and Terri Weissman—wanted to purchase cars equipped with vehicle-to-vehicle—or “V2V”—accident avoidance communications systems; (2) the effectiveness of that technology is dependent on the number of vehicles equipped with interoperable V2V technology; (3) the widespread availability and deployment of the V2V technology is dependent on
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finalization of a proposed Department of Transportation/National Highway Traffic Safety Administration (“NHTSA”) rule that would mandate that all new “light vehicles” be equipped with interoperable V2V communication systems on a specified schedule; and (4) the only reason that NHTSA has failed to finalize the proposed *150 rule is because the Executive Order considers only costs to regulated parties, and not benefits to the public, and the gross cost of the proposed rule vastly exceeds the Department of Transportation’s total incremental cost allowance under the Executive Order. See id. at 76–82.
As the Court explained, these allegations were both plausible and sufficient to withstand a motion to dismiss under Plaintiffs’ newly asserted purchaser theory of standing. Id. at 75–76. Plaintiffs did not argue, as they had under the increased-risk-of-harm theory, that the agency’s failure to finalize the regulation increased the risk that an identifiable member would suffer a future harm, such as injury or death in a car accident that could be prevented through use of the V2V technology. Rather, relying on a line of cases recognizing that consumers, at least at times, have standing to challenge an agency action or inaction that has “prevented the consumers from purchasing a desired product,” id. at 74 (quoting Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1281–1283 (D.C. Cir. 2012)), they argued that they needed to establish only that the Executive Order has delayed finalization of the V2V rule and has thereby deprived Fleming and Weissman of the opportunity to purchase cars equipped with effective V2V communication systems, see id. at 73–75.
At least for purposes of Defendants’ motion to dismiss, the Court agreed. The Court explained that
[I]t is not easy for a plaintiff “plausibly [to] allege or show that [a] putative regulatory action[ ] ... would have been taken in the absence” of some event or requirement. That difficulty is the product of multiple factors, not least of which is the Court’s obligation to refrain from placing “itself in the role of policymaker” and to avoid “speculating about how governmental entities ‘will exercise their discretion.’ ” But, notwithstanding these hurdles, the Court concluded that Plaintiffs had plausibly alleged that NHTSA intended to finalize the V2V rule and that the Executive Order has delayed that action.
Id. at 77 (citations omitted). Among other things, the Court considered the lengthy delay since the comment

Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)
period had closed, the absence of any expression of substantive disagreement with the proposed rule, various statements made by the Department of Transportation and OMB, and the fact that it was likely to “take decades for the Department of Transportation to bank sufficient cost savings to permit the rule to proceed under the Executive Order.” Id. at 77–78.
That same reasoning, however, did not support Plaintiffs’ motion for summary judgment on the question of standing. To be sure, the Court was persuaded that the Plaintiffs’ had “plausibly alleged that the Executive Order has injured, and will continue to injure, Fleming and Weissman by delaying issuance of a final V2V rule and thereby interfering with their plans to purchase and use V2V-equipped vehicles several years from now.” Id. at 85. But more is required to prevail at the summary judgment stage. Establishing a plausible causal link and a plausible claim of redressability was not enough; rather, Plaintiffs bore the burden of demonstrating—beyond genuine dispute—that the Executive Order has delayed finalization of the V2V rule and that, if the Executive Order were set aside, the rule would take effect, and they would be able to purchase cars equipped with interoperable V2V technology. As to that burden, the Court held that Defendants had raised a genuine dispute of fact about the cause of the delay in finalizing the V2V rule. Id. at 85. Pointing to a statement issued by the Department *151 of Transportation in November 2017, Defendants argued that NHTSA was “still reviewing and considering more than 460 comments submitted and other relevant information to inform its next steps,” id. at 77 (quoting U.S. Dep’t of Transp., V2V Statement (Nov. 8, 2017)), and that “the delay in finalizing the rule [was simply] the product of ‘the kind of run-of-the-mill evaluation of a propose[d] rule that often results in additional consideration and, at times, a decision to take a different substantive approach,” id. at 85 (quoting Dkt. 75 at 12). Because Defendants had offered their own evidence, and had not merely “offer[red] an unsupported denial” of Plaintiffs’ evidence that the Executive Order had delayed the V2V rule, the Court concluded “that Plaintiffs [had] not met their burden of demonstrating, beyond genuine dispute, that any of their members would have standing in their own right to challenge the Executive Order and OMB Guidance based on the alleged delay in finalizing the V2V rule.” Id.
The Court reached similar conclusions, moreover, with respect to three other regulatory actions that Plaintiffs invoked in support of their motion for summary judgment on the issue of standing. As to each, the Court concluded
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that Plaintiffs had not established beyond genuine dispute that the rule had been delayed due to the Executive Order, as opposed to other considerations. Id. at 85–90. The Court held, for example, that Plaintiffs had failed to demonstrate beyond genuine factual dispute that the Executive Order had delayed finalization of proposed Department of Energy energy-efficiency standards for commercial water heaters and that, in fact, it “appear[ed] that the delay [was] more likely the product of disagreement about the substance of the proposed [commercial water heater] rule.” Id. at 90. Finally, the Court reaffirmed its conclusion that the plaintiff-associations do not have organizational standing to challenge the Executive Order. Id. at 91–92.
These conclusions left the case in a state of limbo. The Court could neither proceed to the merits without first concluding that it had jurisdiction, nor could it dismiss the action because Plaintiffs had established a plausible—albeit disputed—claim of standing. Both Plaintiffs and Defendants, moreover, asked for the opportunity to investigate and to take discovery to help definitively answer the question of Plaintiffs’ standing. Id. at 92. The Court, accordingly, denied Defendants’ motion to dismiss, Dkt. 70, and Plaintiffs’ motion for partial summary judgment, Dkt. 71; permitted the parties to conduct limited discovery on standing, Minute Entry (Feb. 27, 2019); and set a new briefing schedule, Minute Entry (May 17, 2019).
To avoid any undue intrusion into the workings of a coordinate branch of government, the Court approached the discovery process in stages, at first authorizing Plaintiffs to serve limited interrogatories and requests for admissions on Defendants, Feb. 27, 2019 Telephonic Conf. Tr. (Rough 1:36–40; 8:17–25), about which the parties then met and conferred, see Dkt. 89. Following a status hearing, the Court directed that Defendants answer Plaintiffs’ interrogatories and requests for admissions inquiring into whether the Executive Order had delayed certain rules and that they produce any “list[s] of rules that have not moved forward because of [Executive Order 13,771].” Dkt. 90 at 31 (Mar. 25, 2019 Hr’g Tr. at 31:1–25). And, at a subsequent status conference, the Court provided further direction regarding the scope of permissible discovery. Dkt. 93 at 39 (May 17, 2019 Hr’g Tr. at 39:17–22). After the completion of this discovery, Plaintiffs renewed their motion for partial summary judgment on standing, Dkt. 95, and Defendants *152 cross-moved for summary judgment on standing, Dkt. 96.

Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)
II. LEGAL STANDARD
A plaintiff bears the burden of demonstrating its standing at every stage of the litigation, but that burden evolves with the progressively more demanding standards that apply over the course of the litigation. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In moving for summary judgment on its standing, a plaintiff may not rest on mere allegations, but, instead, must “cit[e] to particular parts of materials in the record,” Fed. R. Civ. P. 56(c), that demonstrate that there is no genuine dispute of material fact as to the existence of “a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) (citation omitted). Similarly, a defendant may move for summary judgment on standing, seeking to demonstrate “that there is no genuine dispute as to any material fact,” Fed. R. Civ. P. 56(c), and that plaintiffs cannot establish the required elements of Article III standing based on the record evidence, see Lujan, 504 U.S. at 561, 112 S.Ct. 2130. “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
III. ANALYSIS
The question before the Court is narrow one: whether the additional discovery that the Court authorized the parties to take has produced evidence sufficient to address the standing deficiencies identified in Public Citizen I and Public Citizen II. Over the course of the litigation, Plaintiffs have identified a broad array of regulatory initiatives that they contend the Executive Order has delayed or derailed, and they contend that “ ‘common sense’ dictates that delays in issuing rules to protect consumers, workers, and the environment [have] cause[d] concrete injury to many of” their hundreds of thousands of members. Dkt. 95 at 14. They also observe that, because they have brought a facial challenge to the
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Executive Order and the OMB Guidance, they need identify only a single member who has sustained, or who will likely sustain, a redressable injury-in-fact due to the Executive Order or the OMB Guidance in order to establish associational standing. For present purposes, however, Plaintiffs “focus[ ] on only two rulemakings: [1] the [NTHSA] rulemaking to establish a federal motor vehicle safety standard for [V2V] communications, and [2] the [DOE] rulemaking to set an energy-efficiency standard for commercial water heating equipment.”1 Id. at 15.
As explained below, the Court is unpersuaded that either the Executive Order or the OMB Guidance has caused the delay in finalizing either of these proposed rules, and the Court is also unpersuaded that it should reconsider any of its prior conclusions respecting Plaintiffs’ other theories of standing. Because Plaintiffs bear the burden of establishing their standing; because *153 the evidence demonstrates that factors unrelated to Executive Order and OMB Guidance have delayed finalization of the V2V and Commercial Water Heating Equipment rules; and because Plaintiffs have failed to demonstrate their standing with respect to any other regulatory initiatives despite multiple attempts to do so, the Court will now dismiss the action for lack of standing.
A. V2V Communication Technology Plaintiffs first attempt to establish standing based on NHTSA’s failure to promulgate a final rule requiring all new light vehicles to include interoperable V2V technology. The Court has previously discussed this issue at length and will not repeat that analysis here. See Public Citizen I, 297 F. Supp. 3d at 26–27, 34; Public Citizen II, 361 F. Supp. 3d at 76–83. Suffice it to say that the critical question, at least for present purposes, is whether Plaintiffs have established that either the Executive Order or the OMB Guidance has delayed finalization of the proposed V2V rule. See Federal Motor Vehicle Safety Standards; V2V Communications, 82 Fed. Reg. 3,854 (Jan. 12, 2017) (to be codified at 49 C.F.R. part 571).
The evidence previously before the Court left that question in dispute. On Plaintiffs’ side of the ledger, there was evidence that: (1) shortly after the Executive Order was issued, the Department of Transportation issued a notice suspending various rulemaking schedules to permit evaluation of the proposed rules in accordance with the

Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)
Executive Order, and it issued similar notices for each of the next five months, see Public Citizen II, 361 F. Supp. 3d at 72; (2) the Department moved the “next action” for the V2V rule to the “undetermined” category on the Spring 2017 Unified Agenda, id. at 72–73; (3) in briefings regarding the Executive Order, the White House touted the large number of regulatory actions that have been “made inactive” or “delayed,” see Public Citizen I, 297 F. Supp. 3d at 26; (4) NHTSA has never expressed doubt about the wisdom of promulgating a V2V rule, Public Citizen II, 361 F. Supp. 3d at 77; and, (5) perhaps most significantly, “it would likely take decades for the [Department] to bank sufficient cost savings to permit the rule to proceed under the Executive Order,” id.; see also Public Citizen I, 297 F. Supp. 3d at 27 (noting that the Department “would need almost seven decades to offset the costs of the V2V rule” at the present rate of cost cutting). On Defendants’ side of the ledger, in contrast, there was a November 8, 2017 press statement from the Department of Transportation, asserting that “NHTSA has not made any final decision on the proposed rulemaking” and that “NHTSA is still reviewing and considering more than 460 comments submitted and other relevant information to inform its next steps. Public Citizen II, 361 F. Supp. 3d at 77 (quoting U.S. Dep’t of Transp., V2V Statement (Nov. 8, 2017)).
As the Court explained in Public Citizen II, neither Plaintiffs’ nor Defendants’ evidentiary showing was dispositive at that point. It was possible that, as Plaintiffs argued, the Executive Order has delayed the V2V rule—principally because it appears highly unlikely that the Department of Transportation will be able to “pay” for the rule under the Executive Order, absent extraordinary measures. Nor did the Department’s press statement prove anything to the contrary. Even accepting as true the unsworn press statement, the fact that NHTSA was still reviewing comments was not incompatible with the conclusion that the Executive Order had caused delay. Why rush to review comments, for example, when you know that the rule cannot move forward for years to come due to the Executive Order’s exhortations? *154 But it was also possible that the V2V rule had been delayed—and would continue to be delayed—for reasons entirely unrelated to the Executive Order.
The discovery that Plaintiffs have now taken addresses the prior uncertainty as to why a final rule has not issued, and it leaves the Court with little doubt that, at least to date, the delay in finalizing the V2V rule is unrelated to the Executive Order and the OMB Guidance. When asked to “[d]escribe in detail any consideration of Executive
7

Order [13,711] in [the Department of Transportation’s] discussions of or decisions as to the V2V rulemaking,” a Department official responded—under the penalty of perjury—that the Executive Order “has not been a factor affecting any [Department of Transportation] decisions about when or whether to issue a Final Rule with respect to the V2V Rulemaking.” Dkt. 95-2 at 16 (Responses to Plaintiffs’ First and Second Set of Interrogatories). The Department of Transportation (“DOT”) further explained:
DOT continues to engage in evaluation of the substance and merits of the rulemaking. In December 2018, DOT requested public comments on several technical questions related to vehicle-to-vehicle, vehicle-to-infrastructure, and vehicle-to-pedestrian communications. 83 Fed. Reg. 66,338 (Dec. 26, 2018). DOT’s request for comments noted that the proposed rule issued in the V2V Rulemaking identified Dedicated Short-Range Communications (“DSRC”) as the primary communications medium, stated that there has been progress in two other technologies, “both of which may, or may not, offer both advantages and disadvantages over DSRC,” and asked for public comments on this and several other technical matters. As it continues to evaluate the substance and merits of the V2V Rulemaking, DOT is reviewing and considering the 166 comments received in response to this request, and 460 comments received with respect to the proposed rule, and other information. This evaluation, review, and consideration has not been prompted by, or connected with, [Executive Order 13,711].
Id. at 16–17. This interrogatory response resolves the question whether the Executive Order has, to date, delayed finalization of the V2V rule. The Department attests, without qualification, that the Executive Order has played no role in the delay, and Plaintiffs have not pointed to any evidence that would permit a reasonable trier of fact to reject that pronouncement. The Court concludes that the uncontroverted evidence establishes that the delay thus far has been unrelated to the Executive Order.
That does not end the matter, however, because Plaintiffs have pivoted in light of the Department’s discovery responses, and they now argue that, even if it has not done so to date, the Executive Order will inevitably delay or derail finalization of the V2V rule at some point in the future, thereby injuring Fleming and Weissman. See Dkt. 95 at 19–22. For support, Plaintiffs once again invoke the vast disparity between the gross cost of the proposed rule

Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)
and the Department of Transportation’s annual incremental cost cap (which is currently set at negative $1.8695 billion), see OMB, Regulatory Reform: Regulatory Budget for Fiscal Year 2019 (Nov. 2019), as well as the Department’s representations that it: (1) intends to comply with the Executive Order in the V2V rulemaking, (2) has not identified two or more existing regulations to repeal in order to make room for the V2V rule, and (3) has not applied to OMB for a waiver of application of the Executive Order to the V2V rule, Dkt. 95-2 at 7–9 (Responses to Plaintiffs’ Requests for Admissions).
*155 The risk of future injury can, at times, support a party’s standing to sue. See, e.g., Bennett v. Spear, 520 U.S. 154, 168, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (concluding that plaintiffs had standing based on the future injury of reductions in available water that would result from implementation of the challenged Biological Opinion); Knife Rights, Inc. v. Vance, 802 F.3d 377, 385–86 (2d Cir. 2015) (concluding that plaintiffs had standing based on high likelihood of future prosecution); see also Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493, 1497 (D.C. Cir. 1996) (noting that there is not always a “need to wait for injury from specific transactions to claim standing” (quoting El Paso Natural Gas Co. v. FERC, 50 F.3d 23, 27 (D.C. Cir. 1995)). A party “alleging only future injuries,” however, “confronts a significantly more rigorous burden to establish standing.” United Transp. Union v. ICC, 891 F.2d 908, 913 (D.C. Cir. 1989). To satisfy that burden, Plaintiffs must show that the asserted future injury “is ‘certainly impending[ ]’ or [that] there is a ‘substantial risk’ that the harm will occur.’ ” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (citation omitted). “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending,” Lujan, 504 U.S. at 564 n.2, 112 S.Ct. 2130 (quotation and citation omitted), and not merely “possible,” Clapper, 568 U.S. at 409, 133 S.Ct. 1138 (citation omitted).
For several reasons, Plaintiffs cannot satisfy this demanding test. First, there is no telling when NHTSA will reach a final decision on the substance of the V2V rule, and, as a result, there is no telling whether, even in the absence of the Executive Order, the rule would be in place in time to benefit Fleming and Weissman. Fleming attested in March 2017 that she planned “to buy a new car in the next 5 years or so,” Dkt. 16-7 at 2 (Fleming Decl. ¶
8

5), and, at the same time, Weissman attested that she planned “to buy a new car in the next 5–7 years,” Dkt. 16-10 at 2 (T. Weissman Decl. ¶ 4). The proposed V2V rule, however, would not take effect for two years and would include a three-year phase-in period. Because Fleming anticipates purchasing a new car in March 2022, and Weissman sometime between March 2022 and March 2024, it is unclear whether they would benefit from the rule even if it were finalized in the next several months, and it is unlikely that they would benefit from it if the Department continues to wrestle with the substance of the rule for the next few years. Although there is no reason to believe that the Department will abandon the proposed rule in whole, the record does not reveal when the Department is likely to finalize it. Because Plaintiffs bear the burden of proof, that lacuna is dispositive.
Other variables only add to this uncertainty. OMB, for example, sets a new total incremental cost cap for each agency each year. Exec. Order No. 13,771 § 3(d), 82 Fed. Reg. 9,339 (Jan. 30, 2017). Although one might reasonably assume that the cap for 2020 will be in line with the caps set to date—at zero or in the negative—that assumption becomes increasingly speculative as it forecasts the caps for more distant years. Just as it is uncertain what cap OMB will set for the Department in future years, moreover, it is also uncertain how much the Department will “bank” in savings over that same period and uncertain how much the V2V rule—as possibly modified in light of comments and technological developments—will ultimately cost.
Concluding that an injury to Fleming and Weissman—as members of Public Citizen—caused by the Executive Order will *156 occur in the future requires conjecture and depends on a variety of “predictive assumptions” potentially involving the behavior of several actors. See Fla. Audubon Soc. v. Bentsen, 94 F.3d 658, 670 (D.C. Cir. 1996); see also Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (“[W]hen considering any chain of allegations for standing purposes, we may reject as overly speculative those links which are predictions of future events.” (quoting Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015))). The Department might continue to evaluate the comments and technology for a month or for three years; Fleming and Weissman might purchase new cars in the next two years or they might wait on a final V2V rule, even if it issues years down the road; the substance of the rule itself could change in material respects; OMB might substantially increase the Department’s annual incremental cost cap for the year in which the rule is ultimately finalized; and the Department

Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)
might bank substantial deregulatory credits, thereby allowing it to finalize the rule while complying with the Executive Order. As a result, the causal chain is too attenuated to permit the Court to conclude that the alleged future injury is “certainly impending,” Clapper, 568 U.S. at 409, 133 S.Ct. 1138, or that “there is a ‘substantial risk’ that the harm will occur,’ ” Susan B. Anthony List, 573 U.S. at 158, 134 S.Ct. 2334 (citations omitted).
B. Energy Efficiency Standards for Commercial Water Heating Equipment Plaintiffs also rely on the Department of Energy’s delay in issuing stricter energy-efficiency standards for commercial water heating equipment. Dkt. 95 at 21–28. The Department of Energy issued a proposed rule to that effect in May 2016, Energy Conservation Program: Energy Conservation Standards for Commercial Water Heating Equipment, 81 Fed. Reg. 34,440 (May 31, 2016), but the Department has yet to finalize the rule. In Plaintiffs’ view, the Executive Order has caused a delay in the rule’s finalization, and both the delay to date and any future delays has harmed and will continue to harm R.J. Mastic, a member of the NRDC who owns and operates an energy efficiency consulting firm, Dkt. 64-7 at 1 (Mastic Decl. ¶¶ 1–2), among others.
As the Court has previously explained, the Department extended the comment period for the proposed rule until August 30, 2016, and then, in December 2016, it published an updated analysis relating to the proposed rule and invited public comment until early 2017. Public Citizen II, 361 F. Supp. 3d at 90. In October 2018, the Department received a petition requesting that it withdraw the proposed rule, and, in early November, the Department published a notice seeking public comment on that petition. Id. Most recently, the Department extended that public comment period until March 1, 2019. Id. In light of this history, the Court concluded in Public Citizen II, which the Court issued before the close of the comment period, that Plaintiffs had not “shown beyond genuine dispute that the Executive Order or OMB Guidance ha[d] delayed finalization of the proposed, amended standard,” and that, although the Court could not resolve the factual dispute between the parties “on the ... record [at that time], it appear[ed] that the delay [was] more likely the product of disagreement about the substance of the proposed rule.” Id. Finally, the Court was unpersuaded by Plaintiffs’ contention that the Executive
9

Order must be to blame because, under the governing statute, the Department was required “to issue a final rule in or before April 2018.” Id. As the Court explained, “the OMB Guidance provides that such a statutory requirement *157 must be observed, notwithstanding the Executive Order,” and that proviso means that the Executive Order did not, in fact, preclude the Department from finalizing the rule. Id.
The Court concludes that, even with the benefit of discovery, Plaintiffs still have not established that the Executive Order has caused any delay in finalizing the commercial water heater energy-efficiency rule. Although Plaintiffs continue to posit that Defendants’ “denials that the Executive Order is delaying or will delay the agency’s completion [of the rule are] impossible to credit,” Dkt. 95 at 24, they point to no additional evidence in support of that contention. In contrast, Defendants invoke the Department of Energy’s interrogatory responses—offered under the penalty of perjury—which reject the premise of Plaintiffs’ arguments. Thus, when asked to “[d]escribe in detail any consideration of Executive Order [13,711] in the agency’s discussions of or decisions about the rulemaking Energy Conservation Standards for Commercial Water Heating Equipment, RIN 1904-AD34,” the Department of Energy (“DOE”) responded:

[Executive Order 13,711] has not

been a factor affecting any DOE

decision about when or whether to

issue a final rule in the Commercial

Water Heating Equipment

Rulemaking. Currently pending

with DOE is a petition by several

entities in the natural gas utility

industry to make certain

determinations pertaining to

condensing versus non-condensing

technology in heating and water

heating equipment, and, as a

consequence, to withdraw the

proposed commercial water heating

equipment rule. See 83 Fed. Reg.

54,883 (Nov. 1, 2018).

Furthermore, several industry

representatives have raised

challenges

to

purported

methodological flaws in DOE’s

analytical model, which they argue

Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)

corrupted the results of DOE’s

analysis in a number of

rulemakings, including the

Commercial Water Heating

Equipment

Rulemaking.

Additionally, DOE has conducted a

number of meetings with the

Air-conditioning, Heating &

Refrigeration Institute (“AHRI”)

and certain of its members raising

issues regarding the legal

definitions that divide consumer

water heaters from commercial

water heaters. Given that these

foregoing developments all have a

bearing on the substance of any

standards that DOE may adopt for

commercial water heating

equipment, it is necessary for DOE

to resolve such prerequisite issues

before attempting to finalize the

Commercial Water Heating

Equipment Rulemaking.

Dkt. 96-3 at 7–8 (Responses to Plaintiffs’ First Set of Interrogatories). Plaintiffs have offered no evidence to contradict this account of the rulemaking and the causes of the delays that have occurred to date. Thus, as with the V2V rule, the interrogatory response resolves the question whether the Executive Order has delayed finalization of the rule.
Plaintiffs press two arguments in response. First, as they did in their briefs leading up to the Court’s Public Citizen II decision, see Dkt. 71 at 37, 41, Plaintiffs argue that the Energy Policy and Conservation Act of 1975, 42 U.S.C. § 6201 et seq., mandates that, if the Department of Energy publishes a notice of a proposed rule amending an energy efficiency standard, it is then required to “publish a final rule amending the standard for the product” within “2 years after the notice is issued,” 42 U.S.C. § 6295(m)(3)(A). Based on that statutory mandate, Plaintiffs contend that the Department was required to issue a final rule in or before April 2018. This shows, according to Plaintiffs, that “there can be no question that the rule has been, and is being, delayed.” Dkt. 99 at 13.
*158 Even accepting the premise that the Department has violated the Energy Policy and Conservation Act by failing to issue a final standard within the allotted time,
10

the Court is unpersuaded that the Executive Order caused that delay. To the contrary, the Department’s interrogatory answer is unequivocal in attesting that the Executive Order “has not been a factor affecting [its] decision about when or whether to issue a final rule in the Commercial Water Heating Equipment Rulemaking.” Dkt. 96-3 at 7 (Responses to Plaintiffs’ First Set of Interrogatories). That evidence, moreover, is consistent with the Court’s prior observation “that the Executive Order ‘does not prevent agencies from issuing regulatory actions in order to comply with an imminent statutory ... deadline, even if they are not able to satisfy [the Executive Order’s] requirements by the time of issuance.’ ” Public Citizen II, 361 F. Supp. 3d at 89 (quoting Final Guidance, Q & A 33). Accordingly, any legal wrong Plaintiffs have suffered—at least to date—is the result of the Department’s failure to comply with its obligation under the Energy Policy and Conservation Act, not a consequence of the challenged Executive Order.

Second, as with the V2V rule, Plaintiffs contend that,

even if Executive Order has not caused the delay to date,

“there can be no question that the Executive Order will

increase the delay” in the future. Dkt. 99 at 13. In support

of this contention, Plaintiffs note that the Department is

“ready to finalize the commercial water heater rule this

year, but it does not list any major regulatory actions

intended for completion this year,” and the Department

“admits that it has not yet identified two or more existing

regulations to be repealed” or “identified repeals that

would offset the costs of a final rule on commercial water

heating equipment.” Id. Plaintiffs’ observations highlight

the speculative nature of the present inquiry because

intervening events have overtaken Plaintiffs’ argument;

according to the most recent report on the OMB website,

the Department now estimates that it will not take final

action on the proposed standard until February 2020. See

Energy Conservation Standards for Commercial Water

Heating

Equipment,

Timetable,

https://www.reginfo.gov/public/do/eAgendaViewRule?pu

bId=201910&RIN=1904-AD34 (last visited Dec. 20,

2019). Although Plaintiffs’ prediction that the Department

will fail to identify any offsetting deregulatory action in

2019 might well extend to 2020, the Court cannot say so

decisively given the fluidity of the regulatory process.

More importantly, regardless of whether the Department can identify the required offsetting deregulatory actions, there is no evidence that the Executive Order is likely to cause further delay in finalizing the commercial water heater rule. To the contrary, as the Court has previously noted, the Executive Order requires that agencies

Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)
implement its requirements in a manner “consistent with applicable law,” Exec. Order No. 13,771 § 5(b), 82 Fed. Reg. 9,339 (Jan. 30, 2017), and the OMB Guidance clarifies that the Order “does not prevent agencies from issuing regulatory actions in order to comply with an imminent statutory or judicial deadline, even if they are not able to satisfy [the Order’s] requirements by the time of issuance,” OMB, Guidance Implementing Executive Order 13,771 (2017) at Q & A 33; see also Public Citizen II, 361 F. Supp. 3d at 89 (quoting same). Because the Energy Policy and Conservation Act mandates that the Department “publish a final rule amending the standard for the product” within “2 years after the notice is issued,” 42 U.S.C. § 6295(m)(3)(A), and because those two years have now expired, the Executive Order and OMB Guidance—by their own *159 terms—do not preclude the Department from finalizing the standard. To be sure, as the Court has previously observed, it is possible that the Department may be “reluctant to issue the final rule because [the rule’s] cost might prevent the Department from taking other, possibly higher priority actions,” Public Citizen II, 361 F. Supp. 3d at 90, or because the Department is unconvinced that the exception for statutory deadlines offers the shelter the Court suggests. Plaintiffs, however, have failed to proffer any evidence that would support such a finding, and the Department attests that it intends to comply with both the Executive Order and “all applicable statutes” in the commercial water heater rulemaking. See Dkt. 95-2 at 69 (Responses to Plaintiffs’ First Set of Requests for Admission); see also Bracy v. Gramley, 520 U.S. 899, 909, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (“Ordinarily, we presume that public officials have ‘properly discharged their official duties.’ ” (quoting United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996))).
Because Plaintiffs have failed to carry their burden of demonstrating that any of their members have suffered or will likely suffer a harm relating to the commercial water heater rulemaking as a result of the Executive Order, they cannot premise their claim of associational standing on that rulemaking. See Elec. Privacy Info. Ctr. v. U.S. Dep’t of Educ., 48 F. Supp. 3d 1, 11, 22 (D.D.C. 2014) (concluding that organization lacked associational standing where none of its named members had established an injury-in-fact to confer Article III standing); cf. Wash. Alliance of Tech. Workers v. U.S. Dep’t of Homeland Sec., 395 F. Supp. 3d 1, 16 (D.D.C. 2019) (concluding that organization had associational standing where it had demonstrated a “substantial probability that at least one of [its] members” would be
11

injured by the action they challenged).
C. Additional Rules, Parties, and Arguments Plaintiffs make two final points. First, they argue that the forest ought not be lost for the trees: As they explain, they have brought a facial challenge to an Executive Order that Defendants have “touted” as affecting every significant regulatory decision and as driving sweeping deregulatory change. Dkt. 95 at 28. Relying on the D.C. Circuit’s decision in Chamber of Commerce v. Reich, Plaintiffs maintain that, because “the context of a particular rulemaking would not ‘assist the court in analyzing [plaintiffs’] facial challenge,’ ” the breadth of their facial challenge as a whole establishes their standing. Id. (citing 57 F.3d 1099, 1100 (D.C. Cir. 1995)). But this argument conflates ripeness with standing. The Reich decision considered whether “[t]he two-pronged test for ripeness established by the Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 148–49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)” was satisfied—that is, was the dispute at issue “fit[ ]” for resolution and would withholding review impose a “hardship” on the plaintiffs. 57 F.3d at 1100. Although “related to standing, the question of ripeness for review [involves] a discrete inquiry.” Action Alliance of Senior Citizens of Greater Phil. v. Heckler, 789 F.2d 931, 939–40 (D.C. Cir. 1986). “Standing doctrine is designed to determine who may institute the asserted claim for relief,” while “[r]ipeness doctrine addresses a timing question.” Id. at 940. Here, Plaintiffs fail to clear the standing hurdle because they have not shown who has been or will likely be injured by the Executive Order. The plaintiffs in the Reich case, in contrast, cleared that hurdle by showing that the Executive Order that they challenged created “a disincentive for employers [in general] to *160 hire replacement workers,” regardless of whether the Secretary of Labor might decline to terminate or debar a government contractor “in the context of a particular case.” Reich, 57 F.3d at 1100. It is presumably for this reason that the Reich decision focuses on ripeness, and not standing. Here, in contrast, the Court is focused on standing.
Finally, Plaintiffs stress that they have not abandoned or waived their claim of organizational standing or their claims against the defendants not mentioned in this final round of summary judgment briefing. Dkt. 99 at 15–17. Understandably, Plaintiffs do not ask the Court to

Public Citizen, Inc. v. Trump, 435 F.Supp.3d 144 (2019)
readdress the many issues it resolved in Public Citizen I and Public Citizen II. Instead, they merely take issue with Defendants’ suggestion, Dkt. 96 at 34, that any theories of standing that Plaintiffs have not repeated in this round of briefing have been “abandoned and waived,” Dkt. 99 at 15–17. The parties have made their respective records concerning this issue. It is not the role of this Court, however, to determine which arguments the parties have properly preserved for appeal. See, e.g., Wilson v. Dryvit Sys., Inc., 71 F. App’x 960, 961–62 (4th Cir. 2003) (noting that it—the Court of Appeals—“must first determine whether the issues raised in the appeal are properly before the Court”); Mayweathers v. Woodford, 393 F. App’x 425, 426 (9th Cir. 2010) (same). For present purposes, it suffices for the Court to conclude that no further issues remain for it to resolve.

CONCLUSION
For the foregoing reasons, the Court will DENY Plaintiffs’ motion for partial summary judgment, Dkt. 95, GRANT Defendants’ cross-motion for summary judgment, and will accordingly DISMISS the case for lack of jurisdiction.
A separate order will issue.
All Citations
435 F.Supp.3d 144

Footnotes

1

For both rulemakings, Plaintiffs assert only associational standing under the purchaser theory. See Hunt v. Wash.

State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (describing the requirements for

an organization to assert associational standing on behalf of its members); Coal. for Mercury-Free Drugs, 671 F.3d at

1281–83 (discussing the contours of the purchaser theory of standing); Public Citizen II, 361 F. Supp. 3d at 73–75)

(discussing purchaser standing).

12

 
 CLOSED,TYPE−E
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−00253−RDM

PUBLIC CITIZEN, INC. et al v. TRUMP et al Assigned to: Judge Randolph D. Moss Case: 1:19−cv−00960−RDM Cause: 05:551 Administrative Procedure Act
Plaintiff PUBLIC CITIZEN, INC.

Date Filed: 02/08/2017 Date Terminated: 12/20/2019 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: Federal Question
represented by Scott Lawrence Nelson PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, NW Washington, DC 20009−1001 (202) 588−7724 Fax: 202−588−7795 Email: snelson@citizen.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patti A. Goldman EARTHJUSTICE 810 Third Avenue Suite 610 Seattle, WA 98104 (206) 343−7340 Fax: (206) 343−1526 Email: pgoldman@earthjustice.org ATTORNEY TO BE NOTICED

Sean M. Sherman PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, NW Washington, DC 20009 (202) 588−7739 Email: ssherman@citizen.org TERMINATED: 11/29/2018

Allison Marcy Zieve PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, NW Washington, DC 20009 (202) 588−1000 Fax: (202) 588−7795 Email: azieve@citizen.org ATTORNEY TO BE NOTICED

Plaintiff
NATURAL RESOURCES DEFENSE COUNCIL, INC.

represented by Scott Lawrence Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patti A. Goldman (See above for address) ATTORNEY TO BE NOTICED

Sean M. Sherman (See above for address)

Plaintiff COMMUNICATION WORKERS OF AMERICA, AFL−CIO
V. Defendant DONALD J. TRUMP in his offiical capacity as President of the United States

TERMINATED: 11/29/2018
Allison Marcy Zieve (See above for address) ATTORNEY TO BE NOTICED
represented by Scott Lawrence Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patti A. Goldman (See above for address) ATTORNEY TO BE NOTICED
Sean M. Sherman (See above for address) TERMINATED: 11/29/2018
Allison Marcy Zieve (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 1100 L St., NW Washington, DC 20005 (202) 353−4537 Fax: (202) 616−8470 Email: christopher.m.lynch@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L St., N.W. Rm. 12028 Washington, DC 20005 (202) 305−0693 Fax: (202) 616−8460 Email: daniel.bensing@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001 (202) 879−3855 Email: bshumate@jonesday.com TERMINATED: 04/11/2019
Michael Leon Drezner U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Room 12210

Defendant UNITED STATES OF AMERICA
Defendant MARK SANDY in his official capacity as Acting Director of the Office of Management and Budget TERMINATED: 04/20/2018
Defendant GRACE BOCHENEK in her offiical capacity as Acting Secretary of Energy TERMINATED: 04/20/2018
Defendant ELAINE L. CHAO in her official capacity as Secretary of Transportation

Washington, DC 20005 (202) 514−4505 Fax: (202) 616−8470 Email: Michael.L.Drezner@usdoj.gov ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY

Defendant JACK DANIELSON in his official capacity as Executive Director, National Highway Traffic Safety Administration TERMINATED: 04/20/2018
Defendant DOROTHY DOUGHERTY in her offiicial capacity as Deputy Assistant Secretary of Labor TERMINATED: 04/20/2018
Defendant KEVIN HAUGRUD in his official capcity as Acting Secretary of the Interior TERMINATED: 04/20/2018
Defendant EDWARD HUGLER in his official capacity as the Acting Secretary of the Department of Labor TERMINATED: 04/20/2018

ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019

Defendant DAPHNE Y. JEFFERSON in her official capacity as Deputy Administrator of the Federal Motor Carrier Safety Administration TERMINATED: 04/20/2018
Defendant JIM KURTH in his official capacity as Acting Director of the U.S. Fish and Wildlife Service
Defendant CATHERINE MCCABE in her official capacity as Acting Administrator of the U.S. Environmental Protection Agency TERMINATED: 04/20/2018
Defendant HOWARD MCMILLAN in his official capacity as Executive Director of the Pipeline and Hazardous Materials Safety Administration TERMINATED: 04/20/2018

Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner

Defendant SAMUEL D. RAUCH, III in his official capacity as Acting Assistant Administrator for Fisheries, National Marine Fisheries Service TERMINATED: 04/20/2018
Defendant PATRICIA W. SILVEY in her official capacity as Deputy Assistant Secretary for Operations, Mine Safety and Health Administration TERMINATED: 04/20/2018
Defendant PATRICK WARREN in his official capacity as Executive Director of the Federal Railroad Administration TERMINATED: 04/20/2018
Defendant MICK MULVANEY Director of the Office of Management and Budget
Defendant

(See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019
Michael Leon Drezner (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RICK PERRY Secretary of Energy, U.S. Department of Energy
Defendant HEIDI KING Deputy Administrator of the National Highway Traffic Safety Administration
Defendant LOREN SWEATT Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor
Defendant R. ALEXANDER ACOSTA Secretary of Labor, U.S. Department of Labor

represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant RYAN ZINKE Secretary of the Interior, U.S. Department of Interior
Defendant RAYMOND MARTINEZ Administrator, Federal Motor Carrier Safety Administration
Defendant SCOTT PRUITT Administrator, U.S. Environmental Protection Agency
Defendant HOWARD ELLIOTT "SKIP" Administrator, Pipeline and Hazardous Materials Safety Administration

represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY

Defendant CHRIS OLIVER Assistant Administrator for Fisheries, National Marine Fisheries Service
Defendant DAVID ZATEZALO Assistant Secretary for Mine Safety and Health Administration, U.S. Department of Labor
Defendant RONALD BATORY Administrator, Federal Railroad Administration
Movant NATIONAL WOMEN'S HEALTH NETWORK
Movant

ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta GUPTA WESSLER PLLC 1900 L Sreet, NW Suite 312 Washington, DC 20036 (202) 888−1741 Email: deepak@guptawessler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

STATE OF CALIFORNIA
Movant STATE OF OREGON Amicus STATE OF WEST VIRGINIA

represented by Elizabeth B. Rumsey ATTORNEY GENERAL'S OFFICE FOR THE STATE OF CALIFORNIA Public Rights Division, Environmental Law Section 1515 Clay Street 20th Floor Oakland, CA 94612 (510) 879−0860 Email: liz.rumsey@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan Kathryn Hey CALIFORNIA DEPARTMENT OF JUSTICE Office of the Attorney General 300 S. Spring Street Suite 1702 Los Angeles, CA 90013 (213)269−6344 Email: Megan.Hey@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elbert Lin Hunton Andrews Kurth LLP Riverfront Plaza, East Tower 951 E. Byrd Street Richmond, VA 23832−4074 804−788−7202 Fax: 804−788−8218 Email: elin@huntonAK.com TERMINATED: 08/24/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas M Johnson WV OFFICE OF THE ATTORNEY GENERAL State Capitol Building 1, Room E−26 Charleston, WV 25305 (304) 558−2021 Email: thomas.m.johnsonjr@wvago.gov TERMINATED: 10/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica Nicole Peterson OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL Main Office 1900 Kanawha Boulevard East State Capitol Building 1, Room 26−E Charleston, WV 25305 (304) 558−1883 Fax: (304) 558−0140 Email: erica.n.peterson@wvago.gov ATTORNEY TO BE NOTICED

Amicus STATE OF WISCONSIN Amicus STATE OF ALABAMA Amicus STATE OF ARIZONA Amicus STATE OF ARKANSAS Amicus STATE OF GEORGIA Amicus STATE OF KANSAS Amicus STATE OF LOUISIANA Amicus STATE OF MICHIGAN Amicus STATE OF NEVADA Amicus STATE OF OKLAHOMA Amicus STATE OF SOUTH CAROLINA Amicus STATE OF TEXAS Amicus STATE OF WYOMING Amicus PUBLIC HEALTH LAW CENTER
Amicus AMERICAN ACADEMY OF PEDIATRICS
Amicus BIG CITIES HEALTH COALITION

represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY

Amicus CAMPAIGN FOR TOBACCO−FREE KIDS
Amicus CENTER FOR SCIENCE IN THE PUBLIC INTEREST
Amicus CHANGELAB SOLUTIONS
Amicus COLLABORATION FOR RESEARCH INTEGRITY AND TRANSPARENCY
Amicus NATIONAL ASSOCIATION OF COUNTY AND CITY HEALTH OFFICIALS
Amicus PUBLIC GOOD LAW CENTER
Amicus PUBLIC HEALTH ADVOCACY INSTITUTE
Amicus PUBLIC HEALTH AND TOBACCO POLICY CENTER
Amicus TRUTH INITIATIVE
Amicus VICTOR B. FLATT

ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katherine A. Meyer MEYER GLITZENSTEIN & EUBANKS

Amicus ALYSON FLOURNOY
Amicus ROBERT L. GLICKSMAN
Amicus THOMAS O. MCGARITY
Amicus SIDNEY SHAPIRO
Amicus AMY SINDEN
Amicus KAREN SOKOL
Amicus RENA STEINZOR
Amicus JOSEPH P. TOMAIN
Amicus

LLP 4115 Wisconsin Avenue, NW Suite 210 Washington, DC 20016 (202) 588−5206 Fax: (202) 588−5049 Email: kmeyer@meyerglitz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katherine A. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katherine A. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katherine A. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katherine A. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katherine A. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katherine A. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katherine A. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katherine A. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROBERT R.M. VERCHICK Amicus UNION OF CONCERNED SCIENTISTS
Amicus CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA
Amicus AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS

represented by Katherine A. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clara E. Brillembourg FOLEY HOAG LLP 1717 K Street, NW Washington, DC 20006 (202) 261−7334 Fax: (202) 467−9634 Email: cbrillembourg@foleyhoag.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cicely O. Parseghian FOLEY HOAG, LLP 155 Seaport Boulevard Boston, MA 02210−2600 (617) 832−3038 Fax: (617) 832−7000 Email: cparseghian@foleyhoag.com TERMINATED: 09/28/2018 PRO HAC VICE
Seth D. Jaffe FOLEY HOAG, LLP 155 Seaport Boulevard Boston, MA 02210−2600 (617) 832−1203 Fax: (617) 832−7000 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by C. Frederick Beckner , III SIDLEY AUSTIN LLP 1501 K Street, NW Washington, DC 20005 (202) 736−8874 Fax: (202) 736−8711 Email: rbeckner@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan C. Morris SIDLEY AUSTIN LLP 1501 K Street, NW Washington, DC 20005 (202) 736−8940 Fax: (202) 736−8711 Email: rmorris@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Frederick Beckner , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan C. Morris

Amicus AMERICAN PETROLEUM INSTITUTE
Amicus ASSOCIATION OF AMERICAN RAILROADS
Amicus NATIONAL ASSOCIATION OF MANUFACTURERS
Amicus NATIONAL FEDERATION OF INDEPENDENT BUSINESS
Amicus COUNTY OF SANTA CLARA, CALIFORNIA

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Frederick Beckner , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan C. Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Frederick Beckner , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan C. Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Frederick Beckner , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan C. Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Frederick Beckner , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan C. Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence J. Serrano COUNTY OF SANTA CLARA Office of the Couty Counsel 70 W. Hedding Street 9th Floor, East Wing San Jose, CA 95110 (408) 299−5900 Email: javier.serrano@cco.sccgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle L. Goldstein OFFICE OF THE COUNTY COUNSEL

Amicus CAMPAIGN FOR TOBACCOFREE
Amicus NATIONAL WOMENS HEALTH NETWORK

70 West Holding Street East Wing, 9th Floor San Jose, CA 95110 213.978.1868 Fax: 213.978.2286 Email: Danielle.Goldstein@CCO.SCCGOV.ORG PRO HAC VICE ATTORNEY TO BE NOTICED
Greta S. Hansen OFFICE OF THE COUNTY COUNSEL 70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 (408) 299−5900 Fax: (408) 292−7240 PRO HAC VICE ATTORNEY TO BE NOTICED
James R. Williams OFFICE OF THE COUNTY COUNSEL 70 West Holding Street East Wing, 9th Floor San Jose, CA 95110 (408) 299−5900 Fax: (408) 292−7240 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deepak Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/08/2017
02/08/2017 02/08/2017 02/08/2017

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 400 receipt number 0090−4834458) filed by NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC., COMMUNICATION WORKERS OF AMERICA, AFL−CIO. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Civil Cover Sheet, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons, # 11 Summons, # 12 Summons, # 13 Summons, # 14 Summons, # 15 Summons, # 16 Summons, # 17 Summons, # 18 Summons, # 19 Summons, # 20 Summons)(Zieve, Allison) (Entered: 02/08/2017)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests of Public Citizen, Inc. by PUBLIC CITIZEN, INC. (Zieve, Allison) (Entered: 02/08/2017)
3 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATURAL RESOURCES DEFENSE COUNCIL, INC. (Zieve, Allison) (Entered: 02/08/2017)
Case Assigned to Judge Gladys Kessler. (jd) (Entered: 02/08/2017)

02/08/2017 02/24/2017 02/24/2017 03/09/2017 03/10/2017 04/10/2017 04/10/2017
04/11/2017 04/17/2017 04/17/2017
04/19/2017
04/21/2017
04/25/2017

4 SUMMONS (17) Issued Electronically as to All Defendants, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Forms)(jd) (Entered: 02/08/2017)
Case randomly reassigned to Judge Randolph D. Moss. Judge Gladys Kessler is no longer assigned to the case. (ztnr) (Entered: 02/24/2017)
5 STANDING ORDER: The parties are hereby ORDERED to comply with the directives set out in the attached Standing Order. Signed by Judge Randolph D. Moss on 2/24/2017. (lcrdm1, ) (Entered: 02/24/2017)
6 NOTICE of Appearance by Patti A. Goldman on behalf of COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC. (Goldman, Patti) (Entered: 03/09/2017)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 2/8/2017. Answer due for ALL FEDERAL DEFENDANTS by 4/9/2017. (Zieve, Allison) (Entered: 03/10/2017)
8 NOTICE of Appearance by Scott Lawrence Nelson on behalf of All Plaintiffs (Nelson, Scott) (Entered: 04/10/2017)
9 MOTION to Dismiss by GRACE BOCHENEK, ELAINE CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Bensing, Daniel) (Entered: 04/10/2017)
10 NOTICE of Appearance by Michael Leon Drezner on behalf of All Defendants (Drezner, Michael) (Entered: 04/11/2017)
11 ENTERED IN ERROR.....MEMORANDUM by STATE OF WEST VIRGINIA. (Lin, Elbert) Modified on 4/18/2017 (jf). (Entered: 04/17/2017)
12 AMICUS BRIEF by STATE OF ALABAMA, STATE OF ARIZONA, STATE OF ARKANSAS, STATE OF GEORGIA, STATE OF KANSAS, STATE OF LOUISIANA, STATE OF MICHIGAN, STATE OF NEVADA, STATE OF OKLAHOMA, STATE OF SOUTH CAROLINA, STATE OF TEXAS, STATE OF WEST VIRGINIA, STATE OF WISCONSIN, STATE OF WYOMING. (jf) (Entered: 04/18/2017)
13 NOTICE of Filing by GRACE BOCHENEK, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN (Attachments: # 1 Errata Corrected Memo, # 2 Errata Corrected Memo Redline)(Bensing, Daniel) (Entered: 04/19/2017)
14 AMENDED COMPLAINT for Declaratory and Injunctive Relief against All Defendants filed by NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC., COMMUNICATION WORKERS OF AMERICA, AFL−CIO. (Attachments: # 1 Redline comparison, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Zieve, Allison) (Entered: 04/21/2017)
MINUTE ORDER: In light of the filing of Plaintiffs' Amended Complaint 14 , Defendants' Motion to Dismiss 9 is hereby DENIED as moot. See Barnes v. District of Columbia, 42 F. Supp. 3d 111, 117 (D.D.C. 2014) ("When a plaintiff files an amended complaint as of right within 21 days after the filing of the motion to dismiss under Rule 12(b),... the amended complaint becomes the operative pleading... and any pending motion to dismiss becomes moot."). This disposition is without prejudice, and Defendants may reassert any or all of the arguments previously raised in a renewed motion to dismiss directed at the now−operative complaint. Defendants are hereby ORDERED to answer or otherwise respond to Plaintiffs' amended complaint on or before May 12, 2017. Signed by Judge Randolph D. Moss on 4/25/2017. (lcrdm1, ) (Entered: 04/25/2017)

04/25/2017 05/12/2017
05/15/2017
05/15/2017 05/15/2017 05/16/2017 05/16/2017 05/19/2017 05/22/2017
05/22/2017
05/23/2017 05/23/2017

Set/Reset Deadlines: Defendants are to answer or otherwise respond to Plaintiffs' amended complaint on or before 5/12/2017. (kt) (Entered: 04/25/2017)
15 MOTION to Dismiss First Amended Complaint by GRACE BOCHENEK, ELAINE CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Drezner, Michael) (Entered: 05/12/2017)
16 MOTION for Summary Judgment by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of David LeGrande, # 3 Declaration of Robert Weissman, # 4 Declaration of Andrew Wetzler, # 5 Declaration of Denise Abbott, # 6 Declaration of James Bauer, Sr., # 7 Declaration of Amanda Fleming, # 8 Declaration of Anthony So, # 9 Declaration of Jonathan Soverow, # 10 Declaration of Terri Weissman, # 11 Declaration of James Coward, # 12 Declaration of Eileen Quigley, # 13 Declaration of Gerald Winegrad, # 14 Declaration of David Hayes, # 15 Declaration of James Jones, # 16 Declaration of David Michaels, # 17 Declaration of Gregory Wagner, # 18 Declaration of Dan Reicher)(Zieve, Allison) (Entered: 05/15/2017)
MINUTE ORDER: The parties are hereby ORDERED to appear for a scheduling conference on May 23, 2017, at 11:00 a.m. in Courtroom 21. Signed by Judge Randolph D. Moss on 5/15/2017. (lcrdm1, ) (Entered: 05/15/2017)
17 NOTICE of Appearance by Sean M. Sherman on behalf of All Plaintiffs (Sherman, Sean) (Entered: 05/15/2017)
Set/Reset Hearings: Initial Scheduling Conference set for 5/23/2017, at 11:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 05/16/2017)
18 NOTICE of Appearance by Erica Nicole Peterson on behalf of STATE OF WEST VIRGINIA (Peterson, Erica) (Entered: 05/16/2017)
19 BRIEF OF AMICI CURIAE by STATE OF WEST VIRGINIA, WISCONSIN, AND 12 OTHER STATES. (Lin, Elbert) Modified on 5/22/2017 (jf). (Entered: 05/19/2017)
20 MOTION for Leave to File Amicus Brief by Public Health Law Center, AMERICAN ACADEMY OF PEDIATRICS, Big Cities Health Coalition, CAMPAIGN FOR TOBACCO−FREE KIDS, CENTER FOR SCIENCE IN THE PUBLIC INTEREST, ChangeLab Solutions, Collaboration for Research Integrity and Transparency, National Association of County and City Health Officials, National Women's Health Network, PUBLIC GOOD LAW CENTER, Public Health Advocacy Institute, Public Health and Tobacco Policy Center, TRUTH INITIATIVE (Attachments: # 1 Proposed Amicus Brief, # 2 Text of Proposed Order)(Gupta, Deepak) (Entered: 05/22/2017)
21 MOTION to Stay Proceedings on Plaintiffs' Motion for Summary Judgment by GRACE BOCHENEK, ELAINE CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, PATRICK WARREN (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support)(Drezner, Michael) (Entered: 05/22/2017)
Minute Entry for proceedings held before Judge Randolph D. Moss: Initial Scheduling Conference held on 5/23/2017. Scheduling Order forthcoming. The 20 Motion for Leave to File Amicus Brief is GRANTED. (Court Reporter: Jeff Hook.) (kt) (Entered: 05/23/2017)
22 SCHEDULING ORDER: (1) Defendants' Motion to Stay Proceedings on Plaintiffs' Motion for Summary Judgment, Dkt. 21 , is DENIED; (2) Plaintiffs shall file their opposition to Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint, Dkt. 15 , on or before June 26, 2017; (3) Defendants shall file their opposition to Plaintiffs' Motion for Summary Judgment, Dkt. 16 , on or before June 26, 2017; (4) Defendants shall file their reply in support of their Motion to Dismiss Plaintiffs' First Amended Complaint on or before July 21, 2017; (5) Plaintiffs shall file their reply in

05/23/2017
05/23/2017
05/24/2017 05/24/2017
05/24/2017 05/24/2017 06/05/2017 06/05/2017 06/05/2017 06/05/2017

support of their Motion for Summary Judgment on or before July 21, 2017; (6) Any further amici who seek to file briefs in support of Plaintiffs or Defendants shall file a motion seeking leave to file, accompanied by a proposed amicus brief, on or before June 12, 2017. See document for details. Signed by Judge Randolph D. Moss on 5/23/2017. (lcrdm1, ) (Entered: 05/23/2017)
Set/Reset Deadlines: Plaintiffs opposition to Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint, due on or before 6/26/2017; Defendants opposition to Plaintiffs' Motion for Summary Judgment, due on or before 6/26/2017; Defendants reply in support of their Motion to Dismiss Plaintiffs' First Amended Complaint due on or before 7/21/2017; Plaintiffs reply in support of their Motion for Summary Judgment due on or before 7/21/2017; Leave to file Amicus briefs due on or before 6/12/2017. (kt) (Entered: 05/23/2017)
25 AMICUS BRIEF by PUBLIC HEALTH LAW CENTER, AMERICAN ACADEMY OF PEDIATRICS, BIG CITIES HEALTH COALITION, CAMPAIGN FOR TOBACCOFREE KIDS, CENTER FOR SCIENCE IN THE PUBLIC INTEREST, CHANGELAB SOLUTIONS, COLLABORATION FOR RESEARCH INTEGRITY AND TRANSPARENCY, NATIONAL ASSOCIATION OF COUNTY AND CITY HEALTH OFFICIALS, NATIONAL WOMENS HEALTH NETWORK, PUBLIC GOOD LAW CENTER, PUBLIC HEALTH ADVOCACY INSTITUTE, PUBLIC HEALTH AND TOBACCO POLICY CENTER, AND TRUTH INITIATIVE. (td) Modified on 6/21/2017 (zrdj). (Entered: 05/24/2017)
23 NOTICE of Appearance by Katherine A. Meyer on behalf of VICTOR B. FLATT, Alyson Flournoy, Robert L. Glicksman, Thomas O. McGarity, Sidney Shapiro, Amy Sinden, Karen Sokol, Rena Steinzor, Joseph P. Tomain, Robert R.M. Verchick (Meyer, Katherine) (Entered: 05/24/2017)
24 MOTION for Leave to File a Brief as Amici Curiae in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss and in Support of Plaintiffs' Motion for Summary Judgment by VICTOR B. FLATT, Alyson Flournoy, Robert L. Glicksman, Thomas O. McGarity, Sidney Shapiro, Amy Sinden, Karen Sokol, Rena Steinzor, Joseph P. Tomain, Robert R.M. Verchick (Attachments: # 1 Exhibit, # 2 Text of Proposed Order, # 3 Exhibit Amicus Brief in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss and in Support of Plaintiffs' Motion for Summary Judgment)(Meyer, Katherine) (Entered: 05/24/2017)
MINUTE ORDER: Upon consideration of the Motion of Law Professors for Leave to File a Brief as Amici Curiae 24 , the motion is hereby GRANTED. The amicus brief, Dkt. 24 −3, is deemed FILED. Signed by Judge Randolph D. Moss on 5/24/2017. (lcrdm1, ) (Entered: 05/24/2017)
26 AMICUS BRIEF by VICTOR B. FLATT, ALYSON FLOURNOY, ROBERT L. GLICKSMAN, THOMAS O. MCGARITY, SIDNEY SHAPIRO, AMY SINDEN, KAREN SOKOL, RENA STEINZOR, JOSEPH P. TOMAIN, ROBERT R.M. VERCHICK. (td) (Entered: 05/24/2017)
27 NOTICE of Appearance by Clara E. Brillembourg on behalf of UNION OF CONCERNED SCIENTISTS (Brillembourg, Clara) (Entered: 06/05/2017)
28 Unopposed MOTION for Leave to File Amicus Curiae Brief by UNION OF CONCERNED SCIENTISTS (Attachments: # 1 Exhibit Proposed Amicus Brief of Union of Concerned Scientists, # 2 Exhibit Proposed Order)(Brillembourg, Clara) (Entered: 06/05/2017)
29 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Seth Jaffe, :Firm− Foley Hoag LLP, :Address− 155 Seaport Boulevard Boston, MA 02210. Phone No. − 617−832−1203. Fax No. − 617−832−7000 Filing fee $ 100, receipt number 0090−4976673. Fee Status: Fee Paid. by UNION OF CONCERNED SCIENTISTS (Attachments: # 1 Exhibit Jaffe Declaration, # 2 Exhibit Proposed Order)(Brillembourg, Clara) (Entered: 06/05/2017)
30 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Cicely Parseghian, :Firm− Foley Hoag LLP, :Address− 155 Seaport Boulevard, Boston, MA 02210. Phone No. − 617−832−3038. Fax No. − 617−832−7000 Filing fee $ 100, receipt number 0090−4976686. Fee Status: Fee Paid. by UNION OF CONCERNED

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SCIENTISTS (Attachments: # 1 Exhibit Parseghian Declaration, # 2 Exhibit Proposed Order)(Brillembourg, Clara) (Entered: 06/05/2017)
MINUTE ORDER: Upon consideration of the Unopposed Motion of the Union of Concerned Scientists for Leave to File Amicus Curiae Brief 28 , the motion is hereby GRANTED. The amicus brief, Dkt. 28 −1, is deemed FILED. Signed by Judge Randolph D. Moss on 6/5/2017. (lcrdm1, ) (Entered: 06/05/2017)
MINUTE ORDER: Upon consideration of the Motion for Admission Pro Hac Vice 29 , it is hereby ORDERED that the motion is GRANTED. Seth D. Jaffe is hereby granted leave to appear pro hac vice in this case. Signed by Judge Randolph D. Moss on 6/5/2017. (lcrdm1, ) (Entered: 06/05/2017)
MINUTE ORDER: Upon consideration of the Motion for Admission Pro Hac Vice 30 , it is hereby ORDERED that the motion is GRANTED. Cicely O. Parseghian is hereby granted leave to appear pro hac vice in this case. Signed by Judge Randolph D. Moss on 6/5/2017. (lcrdm1, ) (Entered: 06/05/2017)
31 AMICUS BRIEF by UNION OF CONCERNED SCIENTISTS. (jf) (Entered: 06/05/2017)
32 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Danielle L. Goldstein, :Firm− Office of the County Counsel, :Address− 70 West Hedding St. East Wing, 9th Floor, San Jose, California 95110. Phone No. − (408) 599−5900. Fax No. − (408) 292−7240 Filing fee $ 100, receipt number 0090−4987883. Fee Status: Fee Paid. by COUNTY OF SANTA CLARA, CALIFORNIA (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Serrano, Lawrence) Modified on 6/13/2017 (zrdj). (Entered: 06/12/2017)
33 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− James R. Williams, :Firm− Office of the County Counsel, :Address− 70 West Hedding St. East Wing, 9th Floor, San Jose, California 95110. Phone No. − (408) 299−5900. Fax No. − (408) 292−7240 Filing fee $ 100, receipt number 0090−4987891. Fee Status: Fee Paid. by COUNTY OF SANTA CLARA, CALIFORNIA (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Serrano, Lawrence) Modified on 6/13/2017 (zrdj). (Entered: 06/12/2017)
34 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Greta S. Hansen, :Firm− Office of the County Counsel, :Address− 70 West Hedding St., East Wing, 9th Floor. Phone No. − (408) 299−5900. Fax No. − (408) 292−7240 Filing fee $ 100, receipt number 0090−4987893. Fee Status: Fee Paid. by COUNTY OF SANTA CLARA, CALIFORNIA (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Serrano, Lawrence) Modified on 6/13/2017 (zrdj). (Entered: 06/12/2017)
35 Unopposed MOTION for Leave to File A Brief as Amicus Curiae in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss by COUNTY OF SANTA CLARA, CALIFORNIA . (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Serrano, Lawrence) Modified on 6/13/2017 (zrdj). (Entered: 06/12/2017)
36 NOTICE of Appearance by Ryan C. Morris on behalf of CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF AMERICAN RAILROADS, NATIONAL ASSOCIATION OF MANUFACTURERS, NATIONAL FEDERATION OF INDEPENDENT BUSINESS (Morris, Ryan) (Entered: 06/12/2017)
37 Unopposed MOTION for Leave to File Amici Curiae Brief in Support of Defendants' Motion to Dismiss Amended Complaint by AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF AMERICAN RAILROADS, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, NATIONAL ASSOCIATION OF MANUFACTURERS, NATIONAL FEDERATION OF INDEPENDENT BUSINESS (Attachments: # 1 Exhibit A − Proposed Amici Brief, # 2 Exhibit B − Text of Proposed Order, # 3 Certificate of Service)(Morris, Ryan) (Entered: 06/12/2017)

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38 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Samuel B. Boxerman, :Firm− Sidley Austin LLP, :Address− 1501 K Street, NW, Washington, DC 20005. Phone No. − (202) 736−8000. Fax No. − (202) 736−8711 Filing fee $ 100, receipt number 0090−4987923. Fee Status: Fee Paid. by AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF AMERICAN RAILROADS, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, NATIONAL ASSOCIATION OF MANUFACTURERS, NATIONAL FEDERATION OF INDEPENDENT BUSINESS (Attachments: # 1 Declaration of Samuel B. Boxerman, # 2 Text of Proposed Order)(Morris, Ryan) (Entered: 06/12/2017)
MINUTE ORDER: Upon consideration of the Motions for Admission Pro Hac Vice 32 , 33 , 34 , it is hereby ORDERED that the motions are GRANTED. Danielle L. Goldstein, James R. Williams, and Greta S. Hansen are hereby granted leave to appear pro hac vice in this case. Signed by Judge Randolph D. Moss on 6/13/2017. (lcrdm1, ) (Entered: 06/13/2017)
MINUTE ORDER: To the extent Samuel B. Boxerman merely seeks leave to have his name appear on a brief signed by a member of the bar of this Court, that motion, Dkt. 38 , is GRANTED. To the extent Mr. Boxerman seeks leave to sign filings or otherwise to participate in this matter, he is referred to Local Civil Rule 83.2, which states that "[a]n attorney who engages in the practice of law from an office located in the District of Columbia must be a member of the District of Columbia Bar AND the Bar of this Court to file papers in this Court" (emphasis added). Signed by Judge Randolph D. Moss on 6/13/2017. (lcrdm1, ) (Entered: 06/13/2017)
MINUTE ORDER: Upon consideration of the Unopposed Motion of the Chamber of Commerce of the United States of America, et al., for Leave to File an Amicus Curiae Brief 37 , the motion is hereby GRANTED. The amicus brief, Dkt. 37 −1, is deemed FILED. Signed by Judge Randolph D. Moss on 6/13/2017. (lcrdm1, ) (Entered: 06/13/2017)
MINUTE ORDER: Upon consideration of the Unopposed Motion of the County of Santa Clara for Leave to File a Brief as Amicus Curiae 35 , the motion is hereby GRANTED. The amicus brief, Dkt. 35 −1, is deemed FILED. Signed by Judge Randolph D. Moss on 6/13/2017. (lcrdm1, ) (Entered: 06/13/2017)
39 AMICUS BRIEF by AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF AMERICAN RAILROADS, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, NATIONAL ASSOCIATION OF MANUFACTURERS, NATIONAL FEDERATION OF INDEPENDENT BUSINESS. (zrdj) (Main Document 39 replaced on 6/26/2017) (ztnr). (Entered: 06/13/2017)
40 AMICUS BRIEF by COUNTY OF SANTA CLARA, CALIFORNIA. (zrdj) (Entered: 06/13/2017)
41 NOTICE of Appearance by C. Frederick Beckner, III on behalf of AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF AMERICAN RAILROADS, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, NATIONAL ASSOCIATION OF MANUFACTURERS, NATIONAL FEDERATION OF INDEPENDENT BUSINESS (Beckner, C.) (Entered: 06/14/2017)
42 ERRATA by AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF AMERICAN RAILROADS, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, NATIONAL ASSOCIATION OF MANUFACTURERS, NATIONAL FEDERATION OF INDEPENDENT BUSINESS 39 Amicus Brief, filed by CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, NATIONAL FEDERATION OF INDEPENDENT BUSINESS, AMERICAN PETROLEUM INSTITUTE, NATIONAL ASSOCIATION OF MANUFACTURERS, ASSOCIATION OF AMERICAN RAILROADS, AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS. (Morris, Ryan) (Entered: 06/15/2017)
MINUTE ORDER: The parties are hereby ORDERED to appear for oral argument on Defendants' motion to dismiss 15 and Plaintiffs' motion for summary judgment 16 on

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06/26/2017 06/30/2017

August 10, 2017, at 10:00 a.m. in Courtroom 21. Signed by Judge Randolph D. Moss on 6/21/2017. (lcrdm1, ) (Entered: 06/21/2017)
Set/Reset Hearings: A Motion Hearing is set for 8/10/2017, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 06/22/2017)
43 Consent MOTION for Leave to File Excess Pages by GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN (Attachments: # 1 Text of Proposed Order)(Bensing, Daniel) (Entered: 06/23/2017)
MINUTE ORDER: Upon consideration of the Consent Motion for Leave to Exceed Page Limits 43 , the motion is hereby GRANTED. Defendants' opposition to Plaintiffs' motion for summary judgment is not to exceed fifty (50) pages, and Plaintiffs' reply brief in support of their motion for summary judgment is not to exceed thirty (30) pages. Signed by Judge Randolph D. Moss on 6/23/2017. (lcrdm1, ) (Entered: 06/23/2017)
MINUTE ORDER: Under this Court's Standing Order, "[a]ll electronically filed documents" are to "be submitted in text−searchable PDF files." Dkt. 5 at 2. On or before June 28, 2017, the Union of Concerned Scientists and the Chamber of Commerce, et al., are hereby ORDERED to resubmit their amicus briefs ( 31 and 39 ) to conform to this requirement. Signed by Judge Randolph D. Moss on 6/26/2017. (lcrdm1, ) (Entered: 06/26/2017)
Set/Reset Deadlines: Union of Concerned Scientists and the Chamber of Commerce, et al., resubmission of amicus briefs due by 6/28/2017. (kt) (Entered: 06/26/2017)
44 RESPONSE TO ORDER OF THE COURT re Order, Amicus Brief filed by UNION OF CONCERNED SCIENTISTS. (Brillembourg, Clara) (Entered: 06/26/2017)
45 RESPONSE TO ORDER OF THE COURT re Order, Amicus Brief filed by AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF AMERICAN RAILROADS, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, NATIONAL ASSOCIATION OF MANUFACTURERS, NATIONAL FEDERATION OF INDEPENDENT BUSINESS. (Morris, Ryan) (Entered: 06/26/2017)
46 RESPONSE re 16 MOTION for Summary Judgment filed by GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN. (Attachments: # 1 Statement of Facts, # 2 Declaration, # 3 Text of Proposed Order)(Drezner, Michael) (Entered: 06/26/2017)
47 Memorandum in opposition to re 9 MOTION to Dismiss filed by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC.. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Allison Zieve, # 3 Declaration Michale Heimbinder)(Zieve, Allison) (Entered: 06/26/2017)
48 TRANSCRIPT OF PROCEEDINGS before Judge Randolph D. Moss held on May 23, 2017; Page Numbers: 1 − 28. Date of Issuance: June 30, 2017. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal

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identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 7/21/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/28/2017.(Hook, Jeff) (Entered: 06/30/2017)
49 Unopposed MOTION for Leave to File Excess Pages by GRACE BOCHENEK, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN (Attachments: # 1 Text of Proposed Order)(Drezner, Michael) (Entered: 07/19/2017)
MINUTE ORDER: Upon consideration of Defendants' Unopposed Motion for Leave to Exceed Page Limits 49 , the motion is hereby GRANTED. Defendants' reply brief in support of their motion to dismiss is not to exceed thirty (30) pages. Signed by Judge Randolph D. Moss on 7/19/2017. (lcrdm1, ) (Entered: 07/19/2017)
50 REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC.. (Zieve, Allison) (Entered: 07/21/2017)
51 REPLY to opposition to motion re 15 MOTION to Dismiss First Amended Complaint filed by GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA. (Bensing, Daniel) (Entered: 07/21/2017)
52 NOTICE of Appearance by Brett A. Shumate by GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN (Drezner, Michael) (Entered: 08/01/2017)
NOTICE OF ERROR re 52 Notice (Other); emailed to Michael.L.Drezner@usdoj.gov, cc'd 38 associated attorneys −− The PDF file you docketed contained errors: 1. In future, appearing attorney must electronically file own Notice of Appearance. (znmw, ) (Entered: 08/02/2017)
Minute Entry for proceedings held before Judge Randolph D. Moss: Motion Hearing held on 8/10/2017 re: 15 MOTION to Dismiss First Amended Complaint filed by SAMUEL D. RAUCH, III, GRACE BOCHENEK, DONALD J. TRUMP, UNITED STATES OF AMERICA, JIM KURTH, ELAINE L. CHAO, MARK SANDY, PATRICK WARREN, DAPHNE Y. JEFFERSON, JACK DANIELSON, HOWARD MCMILLAN, DOROTHY DOUGHERTY, EDWARD HUGLER, PATRICIA W. SILVEY, CATHERINE MCCABE, KEVIN HAUGRUD; and 16 MOTION for Summary Judgment filed by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, PUBLIC CITIZEN, INC., NATURAL RESOURCES DEFENSE COUNCIL, INC. Matters taken under advisement. (Court Reporter: Lisa Moreira.) (kt) (Entered: 08/10/2017)
53 MOTION for Leave to File Supplemental Memorandum by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC. (Attachments: # 1 Exhibit Supplemental memorandum, # 2 Text of Proposed Order)(Zieve, Allison) (Entered: 08/15/2017)
54 RESPONSE re 53 MOTION for Leave to File Supplemental Memorandum filed by ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES

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OF AMERICA, PATRICK WARREN. (Drezner, Michael) (Entered: 08/17/2017)
MINUTE ORDER: Plaintiffs seek leave to file a supplemental memorandum addressing a precedent raised for the first time by Defendants at oral argument. See Dkt. 53 . The U.S. Department of Justice, in turn, does not dispute that counsel raised the precedent for the first time at oral argument, but, surprisingly, nonetheless opposes Plaintiffs' request for an opportunity to address that late−raised authority. See Dkt. 54 . In order to ensure that the parties' respective arguments are fully aired, the Court hereby GRANTS Plaintiffs' motion for leave to file a supplemental memorandum and GRANTS Defendants' request for leave to file a response of similar length on or before August 31, 2017. Plaintiffs' Supplemental Memorandum, Dkt. 53−1, is deemed FILED. Signed by Judge Randolph D. Moss on 8/21/2017. (lcrdm1, ) (Entered: 08/21/2017)
Set/Reset Deadlines: Defendant's Response due by 8/31/2017. (kt) (Entered: 08/21/2017)
55 SUPPLEMENTAL MEMORANDUM to re 16 MOTION for Summary Judgment filed by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC.. (znmw) (Entered: 08/22/2017)
56 TRANSCRIPT OF MOTION HEARING before Judge Randolph D. Moss held on August 10, 2017; Page Numbers: 1−98. Date of Issuance:August 23, 2017. Court Reporter/Transcriber Lisa A. Moreira, RDR, CRR, Telephone number 202−354−3187, Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 9/13/2017. Redacted Transcript Deadline set for 9/23/2017. Release of Transcript Restriction set for 11/21/2017.(Moreira, Lisa) (Entered: 08/23/2017)
57 NOTICE of Appearance by Thomas M Johnson on behalf of STATE OF WEST VIRGINIA (Johnson, Thomas) (Entered: 08/24/2017)
58 NOTICE OF WITHDRAWAL OF APPEARANCE as to STATE OF WEST VIRGINIA. Attorney Elbert Lin terminated. (Lin, Elbert) (Entered: 08/24/2017)
59 RESPONSE re 55 Supplemental Memorandum filed by GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN. (Drezner, Michael) Modified to add link on 9/1/2017 (znmw). (Entered: 08/31/2017)
60 NOTICE OF WITHDRAWAL OF APPEARANCE as to STATE OF WEST VIRGINIA. Thomas M. Johnson terminated. (Peterson, Erica) Modified event title on 10/30/2017 (znmw). (Entered: 10/27/2017)
MINUTE ORDER: Upon consideration of Thomas Johnson, Jr.'s motion to withdraw as counsel for the State of West Virginia 60 , the motion is hereby GRANTED. Thomas Johnson, Jr. may withdraw as counsel in this action. Signed by Judge Randolph D. Moss on 10/27/2017. (lcrdm2, ) (Entered: 10/27/2017)

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61 NOTICE OF SUPPLEMENTAL AUTHORITY by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC. (Zieve, Allison) (Entered: 12/22/2017)
62 RESPONSE re 61 to Plaintiffs' Notice of Supplemental Authority filed by GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN. (Drezner, Michael) Modified to add link on 1/5/2018 (znmw). (Entered: 01/04/2018)
63 MEMORANDUM OPINION AND ORDER: Defendants' motion to dismiss, Dkt. 15 , is hereby GRANTED for lack of jurisdiction, and Plaintiffs' motion for summary judgment, Dkt. 16 , is hereby DENIED. It is hereby ORDERED that the parties shall appear before the Court on March 1, 2018, at 10:30 a.m. in Courtroom 19 to address appropriate next steps, including whether the Court should enter final judgment. See document for details. Signed by Judge Randolph D. Moss on 2/26/2018. (lcrdm2, ) (Entered: 02/26/2018)
Set/Reset Hearings: Status Conference set for 3/1/2018, at 10:30 AM, in Courtroom 19, before Judge Randolph D. Moss. (kt) (Entered: 02/26/2018)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 3/1/2018. Defendant shall file any Motion for Leave to File an Amended Complaint in 30 days. (Court Reporter: Elizabeth SaintLoth.) (kt) (Entered: 03/01/2018)
MINUTE ORDER: In light of the parties' representations at the status conference held on March 1, 2018, it is hereby ORDERED that Plaintiffs shall file a motion for leave to amend their complaint on or before April 2, 2018; Defendants shall file an opposition on or before April 23, 2018; and Plaintiffs shall file a reply on or before May 2, 2018. Signed by Judge Randolph D. Moss on 3/1/2018. (lcrdm2, ) (Entered: 03/01/2018)
Set/Reset Deadlines: Plaintiffs' motion for leave to amend complaint due on or before 4/2/2018; Defendants' opposition due on or before 4/23/2018; Plaintiffs' reply due on or before 5/2/2018. (kt) (Entered: 03/01/2018)
64 MOTION for Leave to File Second Amended Complaint by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC. (Attachments: # 1 Exhibit Proposed Second Amended Complaint, # 2 Exhibit Proposed Second Amended Complaint (redlined), # 3 Text of Proposed Order, # 4 Declaration of Amy Allina, # 5 Declaration of Karen Bain, # 6 Declaration of Barbara Blau, # 7 Declaration of R.J. Mastic, # 8 Declaration of Joanna Mauer, # 9 Declaration of Eduardo Pontoriero, # 10 Declaration of Jose Rivero, # 11 Declaration (Second) of Denise Abbott, # 12 Declaration (Second) of Robert Weissman, # 13 Declaration of Mae Wu)(Zieve, Allison) (Entered: 04/02/2018)
65 NOTICE of Non−Oppositon to Motion to file Second Amended Complaint by ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN (Bensing, Daniel) (Entered: 04/20/2018)
66 Joint MOTION for Briefing Schedule by GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN (Attachments: # 1 Text of Proposed Order)(Bensing, Daniel) (Entered: 04/20/2018)
MINUTE ORDER: In light of Defendants' notice of non−opposition 65 , Plaintiffs' motion for leave to file a second amended complaint 64 is hereby GRANTED and that amended complaint is deemed filed. In addition, the parties' joint motion to set briefing

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schedule 66 is hereby GRANTED. It is ORDERED that the following schedule shall govern future proceedings in this matter: Defendants shall file a motion to dismiss on or before May 14, 2018; Plaintiffs shall file a combined opposition and cross−motion for summary judgment on or before June 4, 2018; Defendants shall file a combined reply and opposition on or before June 25, 2018; and Plaintiffs shall file a reply on or before July 16, 2018. On or before April 27, 2018, Defendants may file a motion to stay briefing on Plaintiffs' motion for summary judgment pending resolution of Defendants' motion to dismiss. Signed by Judge Randolph D. Moss on 4/20/2018. (lcrdm2, ) (Entered: 04/20/2018)
67 Second AMENDED COMPLAINT against MICK MULVANEY, RICK PERRY, HEIDI KING, LOREN SWEATT, R. ALEXANDER ACOSTA, RYAN ZINKE, RAYMOND MARTINEZ, SCOTT PRUITT, HOWARD ELLIOTT, CHRIS OLIVER, DAVID ZATEZALO, RONALD BATORY filed by NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC., COMMUNICATION WORKERS OF AMERICA, AFL−CIO.(td) (Entered: 04/23/2018)
Set/Reset Deadlines: Defendants' motion to dismiss due on or before 5/14/2018; Plaintiffs' combined opposition and cross−motion for summary judgment due on or before 6/4/2018; Defendants' combined reply and opposition due on or before 6/25/2018; Plaintiffs' reply due on or before 7/16/2018; On or before 4/27/2018, Defendants may file a motion to stay briefing on Plaintiffs' motion for summary judgment pending resolution of Defendants' motion to dismiss. (kt) (Entered: 04/23/2018)
68 MOTION to Stay Staying Summary Judgment Briefing by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN, DAVID ZATEZALO, RYAN ZINKE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Bensing, Daniel) Modified event title on 4/30/2018 (znmw). (Entered: 04/27/2018)
MINUTE ORDER: It is hereby ORDERED that Plaintiffs shall respond to Defendants' motion for stay 68 on or before May 4, 2018. Signed by Judge Randolph D. Moss on 4/27/2018. (lcrdm2, ) (Entered: 04/27/2018)
Set/Reset Deadlines: Plaintiffs' Response to 68 due by 5/4/2018. (dot) (Entered: 04/30/2018)
69 Memorandum in opposition to re 68 MOTION to Stay Briefing on Summary Judgment filed by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC.. (Attachments: # 1 Text of Proposed Order)(Zieve, Allison) (Entered: 05/01/2018)
MINUTE ORDER: Defendants' motion to stay proceedings on summary judgment 68 is hereby GRANTED in part and DENIED in part. It is hereby ORDERED that pending further order of the Court, briefing shall be limited to questions going to the Court's jurisdiction. Signed by Judge Randolph D. Moss on 5/1/2018. (lcrdm2, ) (Entered: 05/01/2018)
70 MOTION to Dismiss Second Amended Complaint by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN, DAVID ZATEZALO, RYAN ZINKE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Drezner, Michael) (Entered: 05/14/2018)

06/04/2018 06/04/2018 06/04/2018 06/08/2018
06/12/2018 06/12/2018 06/25/2018
06/25/2018
07/09/2018

71 MOTION for Summary Judgment (Partial) by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Zieve, Allison) Modified on 6/8/2018 (ztd). (Entered: 06/04/2018)
72 Memorandum in opposition to re 70 MOTION to Dismiss Second Amended Complaint filed by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC.. (Attachments: # 1 Text of Proposed Order)(Zieve, Allison) (Entered: 06/04/2018)
73 MOTION to Intervene as Plaintiffs by STATE OF CALIFORNIA ATTORNEY GENERAL, STATE OF OREGON (Attachments: # 1 (Proposed) Order)(Hey, Megan) (Entered: 06/04/2018)
74 Joint MOTION for Extension of Time to File Opposition to Motion to Intervene by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN, DAVID ZATEZALO, RYAN ZINKE (Attachments: # 1 Text of Proposed Order)(Drezner, Michael) (Entered: 06/08/2018)
MINUTE ORDER: Defendants' and proposed intervenors' joint motion for extension of time 74 is hereby GRANTED. Defendants shall file a response to the pending motion to intervene 73 on or before July 9, 2018; the proposed intervenors shall file a reply on or before July 19, 2018. Signed by Judge Randolph D. Moss on 6/12/2018. (lcrdm2, ) (Entered: 06/12/2018)
Set/Reset Deadlines: Defendants shall file a response to the pending motion to intervene 73 on or before 7/9/2018; The proposed intervenors shall file a reply on or before 7/19/2018. (kt) (Entered: 06/12/2018)
75 RESPONSE re 71 MOTION for Partial Summary Judgment filed by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN, DAVID ZATEZALO, RYAN ZINKE. (Attachments: # 1 Exhibit 1− Response to Statement of Facts, # 2 Exhibit 2− Declaration of Daniel Bensing)(Drezner, Michael) (Entered: 06/25/2018)
76 REPLY to opposition to motion re 70 MOTION to Dismiss Second Amended Complaint filed by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN, DAVID ZATEZALO, RYAN ZINKE. (Attachments: # 1 Exhibit 1− Response to Statement of Facts, # 2 Exhibit 2− Declaration of Daniel Bensing)(Drezner, Michael) (Entered: 06/25/2018)
77 RESPONSE re 73 MOTION to Intervene as Plaintiffs filed by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN,

07/16/2018 07/19/2018 07/19/2018 07/20/2018 07/20/2018 07/20/2018 09/28/2018 11/29/2018 02/08/2019
02/10/2019
02/11/2019 02/19/2019 02/19/2019 02/21/2019

DAVID ZATEZALO, RYAN ZINKE. (Bensing, Daniel) (Entered: 07/09/2018)
78 REPLY to opposition to motion re 71 MOTION for Partial Summary Judgment filed by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC.. (Zieve, Allison) (Entered: 07/16/2018)
79 REPLY to opposition to motion re 73 MOTION to Intervene as Plaintiffs filed by STATE OF CALIFORNIA. (Attachments: # 1 Text of Proposed Order)(Hey, Megan) (Additional attachment(s) added on 7/20/2018: # 2 Declaration of Rupa Basu, # 3 Declaration of Phillip Mote) (jf). (Entered: 07/20/2018)
80 ENTERED IN ERROR.....REPLY in support re 73 MOTION to Intervene as Plaintiffs filed by STATE OF CALIFORNIA. (Attachments: # 1 Declaration of Phillip Mote, # 2 Declaration of Rupa Basu)(jf) Modified on 7/20/2018 (jf). (Entered: 07/20/2018)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 80 Reply to Document was entered in error as a duplicate to entry 79 (jf) (Entered: 07/20/2018)
81 MOTION to Take Judicial Notice in Support of Reply by STATE OF CALIFORNIA (Attachments: # 1 Errata RJN, # 2 Exhibit Exhs. A−G to RJN)(Rumsey, Elizabeth) (Entered: 07/20/2018)
82 ERRATA Corrected Reply in Support of Motion by STATE OF CALIFORNIA 73 MOTION to Intervene as Plaintiffs filed by STATE OF CALIFORNIA, STATE OF OREGON. (Attachments: # 1 Errata Corrected Reply Redline)(Rumsey, Elizabeth) (Entered: 07/20/2018)
83 NOTICE OF WITHDRAWAL OF APPEARANCE as to UNION OF CONCERNED SCIENTISTS. Attorney Cicely O. Parseghian terminated. (Parseghian, Cicely) (Entered: 09/28/2018)
84 NOTICE OF WITHDRAWAL OF APPEARANCE as to COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC.. Attorney Sean M. Sherman terminated. (Sherman, Sean) (Entered: 11/29/2018)
85 MEMORANDUM OPINION AND ORDER: For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that Defendants' motion to dismiss, Dkt. 70, is DENIED, and Plaintiffs' motion for partial summary judgment, Dkt. 71, is also DENIED. It is further ORDERED that the motion to take judicial notice, Dkt. 81, is GRANTED, and the motion for intervention, Dkt. 73, is DENIED without prejudice. See document for details. Signed by Judge Randolph D. Moss on 2/8/2019. (lcrdm2, ) (Entered: 02/08/2019)
MINUTE ORDER: It is hereby ORDERED that the parties shall appear for a status conference on February 20, 2019 at 10:15 a.m. in Courtroom 21. The parties shall be prepared to discuss next steps and a schedule for resolving the issues left open by the Court's memorandum opinion, Dkt. 85 . Signed by Judge Randolph D. Moss on 2/10/2019. (lcrdm2, ) (Entered: 02/10/2019)
Set/Reset Hearings: Status Conference set for 2/20/2019, at 10:15 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 02/11/2019)
MINUTE ORDER: It is hereby ORDERED that the status conference scheduled for February 20, 2019 is VACATED and RESCHEDULED for 10:00 a.m. February 21, 2019 in Courtroom 21. Signed by Judge Randolph D. Moss on 2/19/2019. (lcrdm2, ) (Entered: 02/19/2019)
Set/Reset Hearings: The Status Conference set for 2/20/2019 is VACATED and RESCHEDULED for 2/21/2019, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 02/19/2019)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 2/21/2019. Defendants' Answer to the Second Amended Complaint due by 3/15/2019. Defendants' oral motion to dismiss the following parties to the case: Jim Kurth − Acting Director of the U.S. Fish and Wildlife Service; Ryan Zinke − Secretary of the Interior, U.S. Department of the Interior; and Chris Oliver − Assistant

02/25/2019
02/26/2019 02/26/2019 02/27/2019 03/12/2019
03/13/2019 03/14/2019 03/22/2019

Administrator for Fisheries, National Marine Fisheries Services; HEARD and TAKEN UNDER ADVISEMENT, for the reasons stated on the record. (Court Reporter: Jeff Hook.) (kt) (Entered: 02/21/2019)
86 TRANSCRIPT OF STATUS CONFERENCE HEARING before Judge Randolph D. Moss held on February 21, 2019. Page Numbers: 1 − 43. Date of Issuance: February 25, 2019. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court re porter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 3/18/2019. Redacted Transcript Deadline set for 3/28/2019. Release of Transcript Restriction set for 5/26/2019.(Hook, Jeff) (Entered: 02/25/2019)
MINUTE ORDER: It is hereby ORDERED that the parties shall appear for a Telephone Conference on February 27, 2019, at 11:30 a.m. before Judge Randolph D. Moss. The Deputy Clerk will provide the relevant call−in information to the parties. Signed by Judge Randolph D. Moss on 2/26/2019. (lcrdm2, ) Modified on 2/26/2019 to change "Notice of Hearing" to "Minute Order" (kt). (Entered: 02/26/2019)
Set/Reset Hearings: Telephone Conference set for 2/27/2019, at 11:30 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 02/26/2019)
Minute Entry for proceedings held before Judge Randolph D. Moss: Telephone Conference held on 2/27/2019. Plaintiff shall serve on Defendant proposed interrogatories and request for admissions, on or before 3/8/2019. The parties shall then meet and confer. A Status Conference is set for 3/25/2019, at 2:15 PM, in Courtroom 21, before Judge Randolph D. Moss. (Court Reporter: Jeff Hook.)(kt) (Entered: 02/27/2019)
87 Consent MOTION for Extension of Time to File Answer by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN, DAVID ZATEZALO, RYAN ZINKE (Attachments: # 1 Text of Proposed Order)(Bensing, Daniel) (Entered: 03/12/2019)
MINUTE ORDER: Upon consideration of the Consent Motion for an Extension of time, Dkt. 87, it is hereby ORDERED that the motion is GRANTED. Defendants shall file an answer to the Second Amended Complaint on or before March 22, 2019. Signed by Judge Randolph D. Moss on 3/13/2019. (lcrdm2, ) (Entered: 03/13/2019)
Set/Reset Deadlines: Defendants shall file an answer to the Second Amended Complaint on or before 3/22/2019. (kt) (Entered: 03/14/2019)
88 ANSWER to 67 Amended Complaint, by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN,

03/22/2019 03/25/2019 03/26/2019
04/11/2019 05/10/2019
05/10/2019 05/13/2019 05/17/2019

DAVID ZATEZALO, RYAN ZINKE.(Bensing, Daniel) (Entered: 03/22/2019)
89 NOTICE Joint Report to the Court on Jurisdicitional Discovery by R. ALEXANDER ACOSTA, RONALD BATORY, ELAINE L. CHAO, HOWARD ELLIOTT, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, DAVID ZATEZALO, RYAN ZINKE (Attachments: # 1 Exhibit)(Bensing, Daniel) (Entered: 03/22/2019)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 3/25/2019. Plaintiffs shall serve on Defendant interrogatories and request for admissions in two weeks; Defendants' response due thirty days thereafter. A further Status Conference is set for 5/13/2019, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (Court Reporter: Jeff Hook.) (kt) (Entered: 03/25/2019)
90 TRANSCRIPT OF STATUS CONFERENCE HEARING before Judge Randolph D. Moss held on March 25, 2019. Page Numbers: 1 − 54. Date of Issuance: March 26, 2019. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 4/16/2019. Redacted Transcript Deadline set for 4/26/2019. Release of Transcript Restriction set for 6/24/2019.(Hook, Jeff) (Entered: 03/26/2019)
91 NOTICE OF WITHDRAWAL OF APPEARANCE as to R. ALEXANDER ACOSTA, RONALD BATORY, ELAINE L. CHAO, HOWARD ELLIOTT, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, RYAN ZINKE. Attorney Brett A. Shumate terminated. (Shumate, Brett) (Entered: 04/11/2019)
92 Joint MOTION to Continue Postpone Status Hearing by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN, DAVID ZATEZALO, RYAN ZINKE (Attachments: # 1 Text of Proposed Order)(Bensing, Daniel) Modified event on 5/14/2019 (znmw). (Entered: 05/10/2019)
MINUTE ORDER: Upon consideration of the joint motion to postpone, Dkt. 92, it is hereby ORDERED that the motion is GRANTED. The status conference scheduled for May 13, 2019 is hereby VACATED and RESCHEDULED for 3:00 p.m. on May 17, 2019 in Courtroom 21. Signed by Judge Randolph D. Moss on 5/10/2019. (lcrdm2, ) (Entered: 05/10/2019)
Set/Reset Hearings: The Status Conference set for 5/13/2019 is VACATED and RESCHEDULED for 5/17/2019, at 3:00 PM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 05/13/2019)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 5/17/2019. For the reasons stated on the record, supplemental responses, as to discovery, are due on or before 5/31/2019; Plaintiffs' motion for summary judgment is

05/23/2019
05/31/2019 06/03/2019 06/03/2019 06/17/2019 07/15/2019
07/15/2019

due on or before 6/17/2019; Defendants' opposition and cross motion are due on or before 7/15/2019; Plaintiffs' reply and opposition to the cross motion are due 8/6/2019; Defendants' reply to the cross motion is due by 8/27/2019. The parties shall confer as to consolidation with case no. 19cv960, and also propose, if necessary, any modification to the briefing schedule. (Court Reporter: Jeff Hook.) (kt) (Entered: 05/17/2019)
93 TRANSCRIPT OF STATUS CONFERENCE HEARING before Judge Randolph D. Moss held on May 17, 2019. Page Numbers: 1 − 62. Date of Issuance: May 23, 2019. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter re ferenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 6/13/2019. Redacted Transcript Deadline set for 6/23/2019. Release of Transcript Restriction set for 8/21/2019.(Hook, Jeff) (Entered: 05/23/2019)
94 Consent MOTION for Extension of Time to Complete Discovery by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN, DAVID ZATEZALO (Bensing, Daniel) (Entered: 05/31/2019)
MINUTE ORDER: Upon consideration of the consent motion for extension of time to complete discovery, Dkt. 94, it is hereby ORDERED that the motion is GRANTED. Defendant shall provide supplemental responses to discovery on or before June 3, 2019. Signed by Judge Randolph D. Moss on 6/3/2019. (lcrdm2, ) (Entered: 06/03/2019)
Set/Reset Deadlines: Supplemental Responses due by 6/3/2019. (kt) (Entered: 06/03/2019)
95 MOTION for Partial Summary Judgment by COMMUNICATION WORKERS OF AMERICA, AFL−CIO, NATURAL RESOURCES DEFENSE COUNCIL, INC., PUBLIC CITIZEN, INC. (Attachments: # 1 Statement of Facts, # 2 Declaration of Allison Zieve, # 3 Text of Proposed Order)(Zieve, Allison) (Entered: 06/17/2019)
96 Cross MOTION for Summary Judgment by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L. CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, HEIDI KING, JIM KURTH, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN, DAVID ZATEZALO, RYAN ZINKE (Attachments: # 1 Statement of Facts, # 2 Response to Plaintiffs' Statement of Facts, # 3 Declaration of Michael Drezner, # 4 Declaration of Deborah Aiken, # 5 Text of Proposed Order)(Drezner, Michael) (Entered: 07/15/2019)
97 RESPONSE re 95 MOTION for Partial Summary Judgment filed by R. ALEXANDER ACOSTA, RONALD BATORY, GRACE BOCHENEK, ELAINE L.

08/02/2019 08/06/2019 08/06/2019 08/27/2019
12/20/2019 12/20/2019

CHAO, JACK DANIELSON, DOROTHY DOUGHERTY, HOWARD ELLIOTT, KEVIN HAUGRUD, EDWARD HUGLER, DAPHNE Y. JEFFERSON, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, CATHERINE MCCABE, HOWARD MCMILLAN, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, SAMUEL D. RAUCH, III, MARK SANDY, PATRICIA W. SILVEY, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, PATRICK WARREN, DAVID ZATEZALO, RYAN ZINKE. (Attachments: # 1 Statement of Facts, # 2 Response to Plaintiffs' Statement of Facts, # 3 Declaration of Michael Drezner, # 4 Declaration of Deborah Aiken, # 5 Text of Proposed Order)(Drezner, Michael) (Entered: 07/15/2019)
98 NOTICE of Appearance by Christopher M. Lynch on behalf of All Defendants (Lynch, Christopher) (Entered: 08/02/2019)
99 Memorandum in opposition to re 96 Cross MOTION for Summary Judgment filed by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Attachments: # 1 Statement of Facts Response to Defeendants Statement of Material facts, # 2 Text of Proposed Order)(Zieve, Allison) (Entered: 08/06/2019)
100 REPLY to opposition to motion re 95 MOTION for Partial Summary Judgment filed by PUBLIC CITIZEN, INC.. (Attachments: # 1 Statement of Facts Response to defendants Statement of Material Facts)(Zieve, Allison) (Entered: 08/06/2019)
101 REPLY to opposition to motion re 96 Cross MOTION for Summary Judgment on Standing filed by R. ALEXANDER ACOSTA, RONALD BATORY, ELAINE L. CHAO, HOWARD ELLIOTT, HEIDI KING, JIM KURTH, RAYMOND MARTINEZ, MICK MULVANEY, CHRIS OLIVER, RICK PERRY, SCOTT PRUITT, LOREN SWEATT, DONALD J. TRUMP, UNITED STATES OF AMERICA, DAVID ZATEZALO, RYAN ZINKE. (Lynch, Christopher) (Entered: 08/27/2019)
102 MEMORANDUM OPINION: denying Plaintiffs' Motion for Partial Summary Judgment, Dkt. 95 and granting Defendants' Motion for Summary Judgment, Dkt. 96. See document for details. A separate order will issue. Signed by Judge Randolph D. Moss on 12/20/19. (lcrdm1) Modified on 12/20/2019 to edit entry to reflect "Memorandum Opinion"(kt). (Entered: 12/20/2019)
103 ORDER: For the reasons stated in the accompanying Memorandum Opinion, Dkt. 102, it is hereby ORDERED that Plaintiffs' motion for partial summary judgment, Dkt. 95 , is DENIED; and Defendants' motion for summary judgment, Dkt. 96 , is GRANTED. It is further ORDERED this case is DISMISSED. See document for details. The Clerk of Court is directed to terminate the case. Signed by Judge Randolph D. Moss on 12/20/19. (lcrdm1) (Entered: 12/20/2019)