Public Citizen, Inc. v. Trump ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PUBLIC CITIZEN, INC., et al.,
Plaintiffs,
v.
Civil Action No. 17-253 (RDM)
DONALD J. TRUMP, President of the United
States, et al.,
Defendants.
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requires Executive Branch agencies to identify two existing regulations to be repealed for every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
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
2
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
3
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.
4
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.”
8
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.
9
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
10
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
11
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)
12
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
14
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.
15
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).
16
(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
17
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
18
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
19
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.
20
¶ 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.
21
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).
22
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
23
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).
24
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 rule-
specific 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).
25
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.
26
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-trump-
delivering-deregulation.
27
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-for-
One 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.
28
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,
29
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-office-
information-regulatory-affairs-administrator-neomi-rao-unified-agenda-regulatory-deregulatory-
actions.
30
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
31
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.
32
“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
33
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).
34
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 semi-
gloss 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
35
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.”
36
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).
37
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.
38
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
39
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. 16-
7 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
40
“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
41
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.
42
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
43
“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.
44
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).
45
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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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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