Sierra Club v. Perry ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SIERRA CLUB
Plaintiff,
v.
No. 17-cv-2700 (EGS)
RICK PERRY, Secretary,
U.S. Department of Energy,
Defendant.
MEMORANDUM OPINION
In this action the plaintiff, Sierra Club, asks the Court
to declare unlawful the failure of Defendant Rick Perry, in his
official capacity as the Secretary of the United States
Department of Energy (the “Secretary”), to promulgate final
regulations establishing standards for energy efficiency in
manufactured housing pursuant to the Energy Independence and
Security Act of 2007 (“EISA”), 42 U.S.C. § 17071(a)(1), and
pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 706(1). In the EISA, Congress mandated that these standards
“shall” be established by the Secretary “[n]ot later than 4
years after December 19, 2007[.]” 42 U.S.C. § 17071(a)(1). The
Secretary does not deny that he was required by statute to
publish final regulations on or before December 19, 2011.
Rather, the Secretary contends that Sierra Club lacks standing
to bring this lawsuit.
Pending before the Court is the Secretary’s motion to
dismiss the amended complaint. Upon careful consideration of the
Secretary’s motion, the opposition, and the reply thereto, the
applicable law, and the entire record, the Secretary’s motion to
dismiss is DENIED. For the reasons stated below, the Court finds
that Plaintiff Sierra Club has standing to sue on behalf of its
members.
I. Background
Roughly six percent of all homes in the United States are
manufactured homes. 1 Energy Conservation Standards for
Manufactured Housing, 81 Fed. Reg. 39756, 39762 (June 17, 2016).
Manufactured housing is an accessible and affordable housing
option, but owners and residents of manufactured homes have
higher utility bills than those living in traditional “site-
built and modular homes in part due to different criteria for
energy conservation and variability among building codes and
industry practice.” Id.
1 Congress has defined a “manufactured home” as:
[A] structure, transportable in one or more sections,
which, in the traveling mode, is eight body feet or more
in width or forty body feet or more in length, or, when
erected on site, is three hundred twenty or more square
feet, and which is built on a permanent chassis and
designed to be used as a dwelling with or without a
permanent foundation when connected to the required
utilities, and includes the plumbing, heating, air-
conditioning, and electrical systems contained
therein[.]
42 U.S.C. § 5402(6).
2
A. Energy Independence and Security Act
In 2007, Congress enacted the EISA to, among other things,
“increase the efficiency of products, buildings, and vehicles,”
with an energy code improvements provision for manufactured
homes. Pub. L. 110–140, 121 Stat 1492 (Dec. 19, 2007) (codified
at 42 U.S.C. § 17071(a)(1)). Section 17071(a)(1) provides: “Not
later than 4 years after December 19, 2007, the Secretary shall
by regulation establish standards for energy efficiency in
manufactured housing.” 42 U.S.C. § 17071(a)(1). The Secretary
must establish these standards “after . . . notice and an
opportunity for comment by manufacturers of manufactured housing
and other interested parties” and “consultation with the
Secretary of Housing and Urban Development, who may seek further
counsel from the Manufactured Housing Consensus Committee.” Id.
§ 17071(a)(2). Further, the statute requires:
The energy conservation standards established
under this section shall be based on the most
recent version of the International Energy
Conservation Code [“IECC”] (including
supplements), except in cases in which the
Secretary finds that the code is not cost-
effective, or a more stringent standard would
be more cost-effective, based on the impact of
the code on the purchase price of manufactured
housing and on total life-cycle construction
and operating costs.
Id. § 17071(b)(1) (footnote omitted). Finally, the IECC is
revised “every three years.” Building Energy Codes 101: An
Introduction, 10, U.S. Dep’t of Energy (May 2010) (“The IECC
3
applies to both residential and commercial buildings.”),
https://www.energycodes.gov/sites/default/files/becu/BECU Codes 101.pd
f.
More than nine years ago, the United States Department of
Energy (“DOE”) took steps to fulfill its obligations under the
EISA by attempting to promulgate the required regulations. See,
e.g., Am. Compl., ECF No. 14 ¶ 15; Energy Efficiency Standards
for Manufactured Housing, 75 Fed. Reg. 7556-01, 7556 (Fed. 22,
2010); 81 Fed. Reg. at 39756. In February 2010 and June 2016,
DOE published two different advanced notices of proposed
rulemaking and requested public comments. See 75 Fed. Reg. at
7556; see also 81 Fed. Reg. at 39756. After receiving and
considering the comments, DOE submitted the draft notices to the
White House Office of Information and Regulatory Affairs
(“OIRA”) in 2011 and 2016. Def.’s Mem. of Points & Authorities
in Support of Def.’s Mot. to Dismiss, ECF No. 18-1 at 7-10
[hereinafter “Def.’s Mem.”]. 2 The draft notices did not make it
through OIRA’s review process, and DOE withdrew them on March
13, 2014 and January 31, 2017, respectively. Id. at 8, 10. 3 The
2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
3 On August 3, 2018, DOE announced a proposed rule and solicited
public input to develop energy conservations standards. See
Energy Conservation Program: Energy Conservation Standards for
Manufactured Housing, 83 Fed. Reg. 38073 (Aug. 3, 2018). The
comment period ended on September 17, 2018. See Energy
4
Secretary contends that “DOE’s rulemaking efforts on energy
efficiency for manufactured housing remain active and ongoing.”
Id. at 10. Nonetheless, in the Secretary’s own words, “DOE has
yet to publish final regulations[.]” Id. at 5.
B. Plaintiff Sierra Club and Its Members
Sierra Club is a national, non-profit environmental
organization. Am. Compl., ECF No. 14 ¶ 4; see also Ex. 9, ECF
No. 22-1 at 46, ¶ 5 [hereinafter “Levenshus Decl.”]. It has
822,930 members in all fifty states and Puerto Rico. Ex. 2, ECF
No. 22-1 at 7, ¶ 4 [hereinafter “Fashho Decl.”]. According to
Sierra Club, its “purposes include enhancing public health and
the environment and practicing and promoting the responsible use
of the Earth’s ecosystems and resources.” Am. Compl., ECF No.
14 ¶ 4. It states that “Club members are greatly concerned about
air quality and energy efficiency[.]” Fashho Decl. ¶ 2.
Sierra Club identifies some of its members as residents,
owners, and prospective purchasers of manufactured homes. E.g.,
Ex. 3, ECF No. 22-1 at 11-12, ¶¶ 5-8 [hereinafter “Fineran
Efficiency Standards for Manufactured Housing, eRulemaking
Program, https://www.regulations.gov/docket?D=EERE-2009-BT-BC-
0021 (last visited Mar. 5, 2019). The Court, sua sponte, takes
judicial notice of the fact that DOE published this proposed
rule in the Federal Register after the parties fully briefed the
Secretary’s motion to dismiss. See Fed. R. Evid. 201 (b) & (c);
see also Oceana, Inc. v. Pritzker, No. CV 08-1881(PLF), 2014 WL
3907795, at *1 (D.D.C. Aug. 12, 2014) (courts may take judicial
notice of the fact that an agency issued a proposed rule).
5
Decl.”]; Ex. 5, ECF No. 22-1 at 26-28, ¶¶ 4-6, 13 [hereinafter
“Flournoy Decl.”]; Ex. 8, ECF No. 22-1 at 40-42, ¶¶ 9-12
[hereinafter “Land Decl.”]. It alleges that these members
include individuals “who reside in older manufactured homes
needing replacement and those who regularly purchase
manufactured homes as part of their business or who plan to
purchase a manufactured home[.]” Am. Compl., ECF No. 14 ¶ 30. It
avers that “[e]fficency standards save energy and lower energy
bills, saving consumers money over the life of the manufactured
home,” Levenshus Decl. ¶ 8, and “standards for new manufactured
homes will assist Sierra Club’s members as consumers” to
(1) “reduce[] the members’ consumption of electricity and
natural gas[,]; (2) “ensur[e] that there is a wide range of
efficient models readily available[,]” and (3) “push the market
to produce higher efficiency, premium models.” Id. ¶ 10.
C. Procedural History
On December 18, 2017, Sierra Club filed this action against
the Secretary under the EISA and the APA seeking declaratory
relief and an order to compel “the Secretary to complete a final
rule establishing standards for energy efficiency in
manufactured housing in accordance with section 413 of EISA, 42
U.S.C. § 17071, pursuant to an expeditious deadline established
by this Court[.]”. Compl., ECF No. 1 at 9 (“Relief Requested”).
6
On April 2, 2018, the Secretary moved to dismiss the initial
complaint. Def.’s Mot. to Dismiss, ECF No. 12.
On April 23, 2018, Sierra Club filed an amended complaint
seeking declaratory and injunctive relief. See generally Am.
Compl., ECF No. 14. Sierra Club asserts a single claim under
Section 17071 (a)(1) of the EISA and Section 706(1) of the APA,
alleging that the “Secretary’s failure to complete a final rule
establish[ing] standards for energy efficiency in manufactured
housing . . . constitutes an agency action unlawfully withheld
under the [APA].” Am. Compl., ECF No. 14 ¶ 41 (citation and
internal quotation marks omitted). Sierra Club seeks a
declaration stating the same. Id. at 10 (“Relief Requested”).
Sierra Club filed a response to the Secretary’s motion to
dismiss on April 30, 2018. Pl.’s Resp., ECF No. 15. On May 3,
2018, the Court denied as moot the Secretary’s first motion to
dismiss in light of the amended complaint. May 3, 2018 Minute
Order.
On May 29, 2018, the Secretary moved to dismiss the amended
complaint on the basis that the Court lacked jurisdiction over
Sierra Club’s claim because it failed to establish standing. See
Def.’s Mot. to Dismiss, ECF No. 18; see also Def.’s Mem., ECF
No. 18-1. Sierra Club filed its opposition on June 29, 2018. 4
4 On the same day, Sierra Club filed a Motion for Partial Summary
Judgment on Standing and Liability and a Request for a Hearing
7
Pl.’s Opp’n, ECF No. 22. The Secretary filed his reply on July
20, 2018. Def.’s Reply, ECF No. 26. The Secretary’s motion is
ripe and ready for the Court’s adjudication.
II. Legal Standard
A. Rule 12(b)(1)
A federal district court may only hear a claim over which
it has subject-matter jurisdiction; therefore, a Rule 12(b)(1)
motion for dismissal is a threshold challenge to a court’s
jurisdiction. See Fed. R. Civ. P. 12(b)(1). On a motion to
dismiss for lack of subject-matter jurisdiction, the plaintiff
bears the burden of establishing that the Court has
jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561,
(1992). In evaluating the motion, the Court must accept all of
the factual allegations in the complaint as true and give the
plaintiff the benefit of all inferences that can be drawn from
the facts alleged. See Thomas v. Principi, 394 F.3d 970, 972
regarding the same under Local Civil Rule 7(f). Pl.’s Mot. for
Partial Summ. J., ECF No. 23. On July 5, 2018, the Court
temporarily stayed the summary judgment briefing schedule
pending the resolution of the Secretary’s forthcoming motion to
hold in abeyance the summary judgment briefing while the Court
considered the Secretary’s motion to dismiss. Minute Order of
July 5, 2018. After considering the Secretary’s motion to hold
in abeyance the summary judgment briefing, ECF No. 27, and
Sierra Club’s response, ECF No. 28, the Court denied without
prejudice and held in abeyance Sierra Club’s partial motion for
summary judgment, allowing it to refile the motion if the Court
denied the Secretary’s motion to dismiss. August 16, 2018 Minute
Order.
8
(D.C. Cir. 2005). However, the Court is “not required . . . to
accept inferences unsupported by the facts alleged or legal
conclusions that are cast as factual allegations.” Cartwright
Int’l Van Lines, Inc. v. Doan, 525 F. Supp. 2d 187, 193 (D.D.C.
2007) (internal quotation marks and citation omitted).
B. Standing
Article III of the United States Constitution restricts the
power of federal courts to the adjudication of actual “Cases”
and “Controversies.” U.S. Const. Art. III, § 2; see also Lujan,
504 U.S. at 559-60. This requirement has given rise to doctrines
“founded in concern about the proper—and properly limited—role
of the courts in a democratic society.” Warth v. Seldin, 422
U.S. 490, 498 (1975). “In order to establish the existence of a
case or controversy within the meaning of Article III, [a] party
must meet certain constitutional minima,” including a
“requirement that the party. . . has standing to bring the
action.” Gettman v. Drug Enf’t Admin., 290 F.3d 430, 433 (D.C.
Cir. 2002). Indeed, “standing is an essential and unchanging
part of the case-or-controversy requirement of Article III,”
Lujan, 504 U.S. at 560, and it is an essential inquiry into
whether the plaintiff is entitled to have the Court decide the
merits of the dispute. Warth, 422 U.S at 498.
To establish the “irreducible constitutional minimum” of
standing, a plaintiff must demonstrate three prongs: (1) “injury
9
in fact,” which is (a) concrete and particularized and
(b) actual or imminent; (2) that there is a causal connection
between the complained of conduct and the injury alleged that is
fairly traceable to the defendant; and (3) that it is likely,
and not merely speculative, that a favorable decision will serve
to redress the injury alleged. See Lujan, 504 U.S. at 560–61,
(internal quotation marks and citations omitted).
III. Analysis
The Secretary contends that Sierra Club lacks both
associational and organizational standing. Def.’s Mem., ECF No.
18-1 at 12-19. The Secretary argues that Sierra Club fails to
allege a sufficient injury-in-fact to serve as the basis for
Article III standing under both theories. Id. at 12. According
to the Secretary, Sierra Club identifies no economic injury,
health injury, or procedural injury to support standing. Id. at
14-21; see also Def.’s Reply, ECF No. 26 at 1. The Secretary
contends that “Sierra Club vaguely alleges the ongoing lack of
energy-efficiency standards causes harm to the ‘consumer,
[procedural,] environmental, and health interests’ of it and
certain of its members.” Def.’s Mem., ECF No. 18-1 at 10
(quoting Am. Compl., ECF No. 14 ¶ 38).
Sierra Club maintains that it has standing to sue on behalf
of its members. See Pl.’s Opp’n, ECF No. 22 at 18-19. Sierra
Club avers that “DOE’s delay [in establishing energy-efficiency
10
standards for manufactured housing] harms the interests of [its]
members as consumers of manufactured housing by restricting
their opportunities to purchase energy efficient manufactured
homes[.]” Pl.’s Opp’n, ECF No. 22 at 19. It further alleges that
the lack of these standards “extends and worsens health and
welfare harms endured by Sierra Club members who are impacted by
the production of the energy wasted in inefficient manufactured
homes” and “it deprives Sierra Club and its members of
procedural rights that Congress granted them to protect their
concrete interests.” Id.
Because Sierra Club is an association, it may sue on behalf
of its members if the Court finds that it meets the Article III
standing requirements. See Sierra Club v. Fed. Energy Regulatory
Comm’n, 827 F.3d 59, 65-66 (D.C. Cir. 2016). The Court will
consider whether Sierra Club has satisfied the requirements for
associational standing.
A. Associational Standing
“[A]n association may have standing to assert the claims of
its members even where it has suffered no injury from the
challenged activity.” Hunt v. Wash. State Apple Adver. Comm’n,
432 U.S. 333, 342 (1977) (citations omitted). A plaintiff has
associational standing to sue on behalf of its members if:
“(1) at least one of its members would have standing to sue in
his own right, (2) the interests the association seeks to
11
protect are germane to its purpose, and (3) neither the claim
asserted nor the relief requested requires that an individual
member of the association participate in the lawsuit.” Sierra
Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002).
The Secretary does not dispute that Sierra Club satisfies
the last two requirements, see generally Def.’s Mem., ECF No.
18-1; Def.’s Reply, ECF No. 26, and it is clear that Sierra
Club satisfies those requirements. Specifically, Sierra Club
seeks the establishment of energy-efficiency standards in
manufactured housing to protect its individual members’
interests and afford them with (1) the option of accessible
and affordable new manufactured homes and (2) the benefits of
lower utility bills and less exposure to air pollutants and
other environmental harms. Pl.’s Opp’n, ECF No. 22 at 20-21.
Its members’ interests are germane to Sierra Club’s purposes,
which include “the protection and improvement of air quality
and public health and the reduction of adverse environmental
impacts from energy production and usage.” Id. at 20.
Furthermore, there is no reason presented in this case to
require one of its members to participate in this lawsuit. See
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin.,
793 F.2d 1322, 1329 n.44 (D.C. Cir. 1986) (noting that “Courts
have required individual participation in circumstances where
12
there are conflicts of interest within the organization or
when a specific factual setting is needed to illuminate the
issues.”). Having found that Sierra Club meets the last two
requirements of associational standing, the Court next
addresses Sierra Club’s members’ three alleged injuries in turn,
and then addresses the causation and redressability prongs.
Here, “the crux of the standing issue” is “whether the
members of [Sierra Club] would have standing to sue in their
own right.” Id. On the basis of declarations submitted by its
members, Sierra Club has alleged three forms of concrete harm:
(1) economic injury due to the lost opportunity to purchase new,
energy-efficient manufactured homes; (2) health injury from
exposure to air pollutants and certain harmful emissions in the
absence of energy-efficiency standards; and (3) procedural
injury as a result of DOE’s failure to promulgate final
regulations mandated by Congress. Pl.’s Opp’n, ECF No. 22 at 21-
32. As the Supreme Court instructed in Lujan, “[a]t the pleading
stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss
[courts] presum[e] that general allegations embrace those
13
specific facts that are necessary to support the claim.” 504
U.S. at 561 (citation and internal quotation marks omitted).
1. Economic Injury
Sierra Club satisfies the injury requirement in the first
prong of associational standing because at least three of its
members are prospective purchasers and consumers of energy-
efficient manufactured homes who have alleged a sufficient
injury-in-fact. See, e.g., Land Decl. ¶¶ 9-12; Flournoy Decl. ¶¶
4-6; Fineran Decl. ¶¶ 5-8. These members have alleged that they
either cannot find, or it is difficult to find, energy-
efficient manufactured homes, and their ability to search for
such homes will continue to be adversely impacted by DOE’s
inaction. See, e.g., Land Decl. ¶¶ 9-12; Flournoy Decl. ¶¶ 4-6;
Fineran Decl. ¶¶ 5-8.
The Secretary contends that Sierra Club has not
demonstrated standing based on an economic injury because it
cannot show “any particular member is unable to find a readily
available efficient manufactured home on the current market[.]” 5
5 The Secretary relies on Coalition for Mercury-Free Drugs for
this proposition. See Def.’s Reply, ECF No. 26 at 3-4. There,
the D.C. Circuit held that the plaintiffs alleging physical harm
from vaccines with mercury-based preservative thimerosal lacked
standing to challenge the agency’s rule finding that those
vaccines were safe because the “complaint and declarations [did]
not allege that mercury-free vaccines [were] ‘not readily
available’” and those vaccines were “unreasonably priced as a
result of [the agency’s] decision to allow thimerosal-preserved
14
Def.’s Reply, ECF No. 26 at 1-2; see also Def.’s Mem., ECF No.
18-1 at 16. The Secretary argues that Sierra Club’s members’
“possible” purchases of manufactured homes constitute a “defect”
that is fatal to standing. See Def.’s Mem., ECF No. 18-1 at 16.
The Secretary’s arguments are unavailing. Sierra Club is in
a similar position as the organizations found to have standing
in Center for Auto Safety v. National Highway Traffic Safety
Administration, 793 F.2d at 1332. In that case, the United
States Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) held that standing was appropriate where the
plaintiffs-organizations alleged “an injury to its members, who
[were] interested in purchasing the most fuel-efficient vehicles
possible” and that the agency’s low “standards [would] diminish
the types of fuel-efficient vehicles and options available.” Id.
vaccines[.]” Coal. for Mercury-Free Drugs, 671 F.3d at 1282-83.
Here, Sierra Club addresses the Secretary’s concerns by arguing
that “the absence of DOE standards leaves many potential
purchasers looking for an energy efficient manufactured home
with no options meeting their needs[.]” Pl.’s Opp’n, ECF No. 22
at 22 (emphasis added). A fair reading of the operative
complaint and the declarations would suggest that energy-
efficient manufactured homes are not readily available. See,
e.g., Am. Compl., ECF No. 14 ¶ 32 (“Such standards ensure that
Plaintiff’s members will find efficient homes readily available
and will not have to pay a premium for them.”); Land Decl. ¶¶ 9-
10 (explaining the difficulty of finding an energy-efficient
manufactured home); Ex. 12, ECF No. 22-1 at 145 (“I would
consider buying a new, energy efficient manufactured home if it
were easy to get one built the way I think they should be.”)
[hereinafter “Stevens Decl.”]; Flournoy Decl. ¶¶ 3-6.
15
The D.C. Circuit concluded that the plaintiffs-organizations
alleged a “distinct injury to their members.” Id. at 1334.
The parties do not dispute that the D.C. Circuit “has
permitted consumers of a product to challenge agency action that
prevented the consumers from purchasing a desired product.”
Coal. for Mercury-Free Drugs, 671 F.3d at 1281; see also
Orangeburg, S.C. v. Fed. Energy Regulatory Comm’n, 862 F.3d
1071, 1077 (D.C. Cir. 2017) (holding that plaintiff “suffered an
injury-in-fact because it [could] not purchase wholesale power
on its desired terms.”). In Orangeburg, the D.C. Circuit made
clear that “[t]he lost opportunity to purchase a desired product
is a cognizable injury, even though [the plaintiff] can
purchase, and has purchased, wholesale power from another
source.” 862 F.3d at 1078 (emphasis in original); see also
Competitive Enter. Inst. v. Nat’l Highway Traffic Safety Admin.,
901 F.2d 107, 112–13 (D.C. Cir. 1990) (finding that organization
members would suffer a cognizable “injury in the form of a
restricted opportunity to purchase fuel-efficient vehicles”
where “[i]n affidavits, . . . members state[d] that they have
looked for, but have been unable to find new cars of large size,
such as station wagons, in a price range they could afford.”).
The same is true here.
Sierra Club points out that “the price mark-ups for the
non-standard energy efficient features make [energy-efficient
16
manufactured homes] difficult to afford.” Pl.’s Opp’n, ECF No.
22 at 21 (citing Fineran Decl. ¶¶ 5-8; Land Decl. ¶¶ 9-12). At
least one member of Sierra Club avers that she and her husband
purchased a manufactured home in 2018 after finding “a
manufactured home dealer with a home specifically retrofitted
for energy efficiency.” Land Decl. ¶¶ 9-10. She states that
“finding it was like finding a needle in a haystack.” Id. ¶ 10.
According to her, she would like to purchase a second
manufactured home for their rural property in Texas, but “it is
so difficult to find one that is energy-efficient[.]” Id. ¶ 12.
Other members also plan to purchase new, energy-efficient
manufactured homes in the future, but they allege that it is
difficult to find them. See, e.g., Ex. 4, ECF No. 22-1, at 18, ¶
15 (“Sierra Club members . . . will acquire . . . manufactured
housing[.]”); Flournoy Decl. ¶ 5; Fineran Decl. ¶ 6.
The Secretary urges the Court to not consider these
declarations because they fail to allege “any concrete plans to
purchase a manufactured home by any specific date.” Def.’s Mem.,
ECF No. 18-1 at 16. The Secretary’s suggestion that the
declarations must include specific details about the potential
purchases has been foreclosed by D.C. Circuit precedent. See
Sierra Club v. Fed. Energy Regulatory Comm’n, 827 F.3d at 66-68
(holding that organization member would suffer a cognizable harm
based on his statement that he planned to visit an affected area
17
in the future). The D.C. Circuit has made clear that a
plaintiff’s statement of “definite dates is not necessary to
establish Article III standing where, as here,” members of
Sierra Club attest in sworn statements that they intend to
purchase new, energy-efficient manufactured homes. Id. at 68
(citation omitted).
Sierra Club’s members have alleged an economic injury that
is “concrete” and “particularized” because it “actually
exist[s]” and impacts the members “in a personal and individual
way.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). The
lost opportunity to purchase new, energy-efficient manufactured
homes of their choice is concrete and particularized. See
Competitive Enter. Inst., 901 F.2d at 113 (“[A] lost opportunity
to purchase vehicles of choice is sufficiently personal and
concrete to satisfy Article III requirements.”). Furthermore,
the lack of standards for energy efficiency in manufactured
housing leaves these members with increased manufactured home
energy use and the financial burden of higher monthly utility
expenses. See 81 Fed. Reg. at 39759-60.
Sierra Club’s members’ economic injury is “actual [and]
imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at
560 (citation and internal quotation marks omitted). Sierra
Club contends that its members “have searched and are
searching for manufactured homes to purchase” and “each home
18
they view is unlawfully not subject to the energy efficient
regulations Congress required.” Pl.’s Opp’n, ECF No. 22 at 25
(emphasis in original). Such economic harm is real and
imminent. See Orangeburg, 862 F.3d at 1079 (concluding that
plaintiff “demonstrated an ‘imminent’ or ‘certainly impending’
risk of losing out on the opportunity to purchase its desired
product” due in part to the federal commission’s “long delay
and continued inaction”); cf. Flaherty v. Bryson, 850 F. Supp.
2d 38, 48 (D.D.C. 2012) (finding that economic harm was actual
and imminent where “[p]laintiffs claim[ed] that their ability to
fish striped bass for sport or business has been, and will
continue to be, harmed by the state of the Atlantic herring
fishery because adequate conservation measures to protect the
herring upon which striped bass feed have not been adopted.”).
Accordingly, Sierra Club has demonstrated that its members
have suffered an economic injury.
2. Health Injury
Sierra Club alleges that standards for energy efficiency in
manufactured housing will “benefit [its] members living,
working, and engaging in outdoor activities in communities with
harmful levels of air pollution and in communities where natural
gas and other fuels are extracted, produced, and transported.”
Am. Compl., ECF No. 14 ¶ 35; see also Fisher Decl. ¶ 9 (citing
19
research that shows manufactured homes are “often sited in areas
zoned for commercial and industrial use (rather than
residential) and are thus disproportionately impacted by
environmental harms.”). At least seven members of Sierra Club
aver in declarations that their exposure to air pollution and
harmful emissions negatively impacts their health. See, e.g.,
Land Decl. ¶¶ 3-8; Ex. 1, ECF No. 22-1 at 3-5 [hereinafter
“Blake Decl.”]; Ex. 6, ECF No. 22-1 at 31-32 [hereinafter
“Frantz Decl.”; Ex. 7, ECF No. 22-1 at 34-36 [hereinafter “Guldi
Decl.”]; Ex. 10, ECF No. 22-1 at 138-40 [hereinafter “McNall
Decl.”]; Ex. 11, ECF No. 22-1 at 142-43 [hereinafter “Nipp
Decl.”]; Ex. 13, ECF No. 22-1 at 148-49 [hereinafter “Stewart
Decl.”].
For example, Sierra Club member Shirley McNall states that
her home is “within one mile of [twenty-five] gas wells[,]”
McNall Decl. ¶ 4, and the “emissions from the gas well are
harming [her] health.” Id. ¶ 6. According to her, she “suffered
a hydrogen sulfide ‘hit’” on her property from the pollution.
Id. ¶ 7. She goes on to explain that her “legs began to wobble,
[her] throat became sore, [her] tongue was beginning to swell,
and [she] became extremely confused.” Id. She maintains that
“[t]he delay of publishing these energy efficiency standards and
resulting increase in demand for natural gas threaten [her]
family’s health and [her] own.” Id. ¶ 13.
20
The Secretary asks the Court to find that “[t]hese alleged
injuries are entirely too vague[.]” Def.’s Mem., ECF No. 18-1 at
18; see also Def.’s Reply, ECF No. 26 at 6-7. The Court,
however, finds that these members’ declarations sufficiently
demonstrate a concrete injury to their health from exposure to
air pollutants and other harmful emissions. See Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
183 (2000) (holding that statements from organization members
who lived near contaminated areas with harmful pollutants
“adequately documented injury in fact”).
Sierra Club’s members have also demonstrated a concrete,
particularized, and imminent health injury. See, e.g., Spokeo,
136 S. Ct. at 1548; Lujan, 504 U.S. at 560. As previously
stated, seven members allege that their exposure to air
pollutants and other harmful emissions is negatively impacting
their health due to the lack of standards for energy-efficiency
in manufactured housing. This is “the kind of conduct that the
suit seeks to enjoin” and there is “a real and immediate threat
that the harm-producing conduct will recur” without the energy-
efficiency standards. Coal. For Mercury-Free Drugs, 671 F.3d at
1280.
3. Procedural Injury
Finally, Sierra Club alleges that the Secretary’s failure
to promulgate regulations pursuant to the EISA deprives it and
21
its members of “procedural rights and protections to which they
would otherwise be entitled[.]” Am. Compl., ECF No. 14 ¶ 37.
Sierra Club argues that Congress granted its members these
procedural rights, including the right to challenge the agency’s
final action, “to protect their concrete interests.” Pl.’s
Opp’n, ECF No 22 at 29-30. And Sierra Club asserts that the
Secretary’s failure to act deprives it and its members of the
right to have updated “standards within one year after each
future edition of the IECC, in compliance with [Section
17071(b)(3).]” Id. at 30.
The Secretary contends that “these allegations are not
enough to establish standing[,]” because the rulemaking
procedures identified by Sierra Club were “not designed to
protect any identified concrete interest, nor has Sierra Club
shown that the failure to adhere to those procedures creates a
substantial risk to such an interest.” Def.’s Mem., ECF No. 18-1
at 19-20. The Secretary maintains that Sierra Club does not have
a procedural right since “DOE has not violated any of the
rulemaking procedures identified by Sierra Club because those
procedures have yet to be triggered.” Id. at 20. The Secretary
maintains that Sierra Club has not identified a “ripe”
procedural injury. Id. at 21.
An association need only make a showing of “concrete harm”
to enforce the procedural rights of its members, see Lujan, 504
22
U.S. at 573 n.8, and demonstrate “a causal relationship between
the agency [in]action and the alleged injuries.” Ctr. for Law &
Educ. v. Dep’t of Educ., 396 F.3d 1152, 1160 (D.C. Cir. 2005).
Thus, “this Court must only determine whether the [Secretary]
failed to comply with [his] statutory mandate, and if so,
whether there is a substantial probability that the
[Secretary’s] failure to comply caused [Sierra Club’s] members
to be denied” regulations establishing energy-efficiency
standards for manufactured homes. U.S. Women’s Chamber of
Commerce v. U.S. Small Bus. Admin., No. 1:04-CV-01889, 2005 WL
3244182, at *9 (D.D.C. Nov. 30, 2005) (emphasis in original)
(citing Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 669 (D.C.
Cir. 1996)). Indeed, courts in this Circuit have found that the
deprivation of a member’s procedural rights can establish
associational standing where an agency fails to adhere to its
Congressional mandate. See, e.g., Air All. Houston v. U.S. Chem.
& Safety Hazard Investigation Bd., No. 17-CV-02608 (APM), 2019
WL 450677, at *8-9 (D.D.C. Feb. 4, 2019) (holding that an
organization member had a procedural right based on an agency’s
failure to promulgate regulations mandated by Congress); U.S.
Women’s Chamber of Commerce, 2005 WL 3244182 at *8-10 (finding
that an association could enforce the procedural rights of its
23
members as a result of an agency’s failure to timely complete
its congressionally mandated obligations).
An individual may “enforce procedural rights . . . so long
as the procedures in question are designed to protect some
threatened concrete interest of his that is the ultimate basis
of his standing.” Lujan, 504 U.S. at 573 n. 8. Here, Sierra
Club’s members have alleged a concrete, particularized, and
actual procedural injury. Sierra Club member Shirley McNall
alleges a concrete health injury because she lives near gas
wells, and she avers that the emissions from those wells are
harming her health. See McNall Decl. ¶¶ 4, 6. Sierra Club member
Karla Land alleges a real and impending economic injury because
she asserts that it has been and continues to be difficult to
find a new manufactured home with energy-efficient features. See
Land Decl. ¶¶ 9-12. In attempting to promulgate regulations
under the EISA, DOE explained that the proposed energy
conservation standards would reduce air pollutants and
contribute to making manufactured homes more energy efficient.
See 81 Fed. Reg. at 39759-60. Accordingly, the Secretary’s
failure to establish the required regulations under the EISA has
resulted in a concrete, particularized, and actual procedural
harm to Sierra Club’s members.
Sierra Club alleges that its members’ concrete interests
are frustrated by the Secretary’s delay in promulgating
24
regulations and failure to establish standards as required by
the EISA. Am. Compl., ECF No. 14 ¶ 38. The Court finds that the
Secretary has compromised Sierra Club’s members’ “concrete and
particularized procedural rights,” U.S. Women’s Chamber of
Commerce, 2005 WL 3244182 at *10, because it is clear that the
Secretary failed to establish regulations for energy-efficiency
standards mandated by Congress, and it is substantially probable
that the Secretary’s failure to establish the standards has
caused Sierra Club’s members’ concrete injury. See Massachusetts
v. EPA, 549 U.S. 497, 517–18 (2007) (procedural-rights plaintiff
“has standing if there is some possibility that the requested
relief will prompt the injury-causing party to reconsider the
decision that allegedly harmed the litigant.”).
The Court rejects the Secretary’s argument that Sierra Club
has not identified a ripe procedural injury. See Def.’s Mem.,
ECF No. 18-1 at 21. Sierra Club asserts a single claim under 5
U.S.C. 706(1) for the Secretary’s delays and failure to complete
a final rule establishing standards for energy efficiency in
manufactured housing. Am. Compl., ECF No. 14 ¶¶ 38, 41. Section
706(1) of the APA provides that “[t]he reviewing court shall . .
. compel agency action unlawfully withheld or unreasonably
delayed.” 5 U.S.C. 706(1). The parties do not dispute that the
Secretary has missed the deadline imposed by Congress to
promulgate the regulations pursuant to 42 U.S.C. § 17071. See
25
Def.’s Mem., ECF No. 18-1 at 5; see also Pl.’s Opp’n, ECF No. 22
at 31. Therefore, Sierra Club has alleged a procedural injury to
its members that is ripe. 6
B. Causation and Redressability
As to the causation and redressability prongs of standing,
DOE’s own words provide the required causal connection. See Air
All. Houston, 2019 WL 450677, at *8-9 (finding that language in
the agency’s proposed rule supplied the required connection that
promulgation of mandatory reporting regulations would reduce to
some extent the individuals’ health risks from their exposure to
chemical emissions). In its second attempt to promulgate the
final regulations, DOE recognized: “[t]he proposed rule also
would produce environmental benefits in the form of reduced
emissions of air pollutants and greenhouse gases associated with
electricity production. DOE estimates that 18.1 million metric
tons of carbon dioxide emissions would be avoided through the
6 Sierra Club contends that “DOE cannot lawfully adopt the
negotiated standards it proposed” because the proposed standards
were based on the 2015 version of the IECC and a “2018 version
of the IECC has not been published[.]” Pl.’s Opp’n, ECF No. 22
at 17 (citing 42 U.S.C. § 17071(a)(2) & (b)(1)), 30 n.8. Sierra
Club argues that its procedural injury is ripe because the
Secretary has failed to satisfy his obligations under 42 U.S.C.
§ 17071(b)(1) to issue a proposed rule to adopt standards based
on the most recent version of the IECC. Id. at 30-32. The
Secretary has conceded this argument by not responding to it,
see Campbell v. Nat’l R.R. Passenger Corp., 311 F. Supp. 3d 281,
327 n.13 (D.D.C. 2018), and does not dispute that the IECC is
updated every three years.
26
end of 2030 as a result of the proposed rule.” 81 Fed. Reg. at
39759 (emphasis added). DOE stated that “[i]mproved energy
conservation standards are expected to provide nationwide
benefits of reducing utility energy production levels that would
in turn reduce greenhouse gas emissions and other air
pollutants.” Id. at 39762 (emphasis added). It also stated:
“Establishing robust energy conservation requirements for
manufactured homes would result in the dual benefit of
substantially reducing manufactured home energy use and easing
the financial burden on owners of manufactured homes in meeting
their monthly utility expenses.” Id. (emphasis added).
Sierra Club satisfies the causation and redressability
prongs. See Sierra Club v. Fed. Energy Regulatory Comm’n, 827 F.
3d at 65 (“Where, as here, a party alleges deprivation of its
procedural rights, courts relax the normal standards of
redressability and imminence.”); see also Lujan, 504 U.S. at 573
n.7 (same). It is apparent that there is a causal relationship
between the Secretary’s inaction and Sierra Club’s members’
alleged injuries that would be redressed by establishing
standards for energy efficiency in manufactured housing if
Sierra Club prevails on the merits. Having found that Sierra
Club has associational standing, Sierra Club can pursue this
action on behalf of its members. See U.S. Women’s Chamber of
Commerce, 2005 WL 3244182, at *18 (concluding that “the
27
plaintiff has associational standing to pursue this action for
unreasonable delay under APA § 706(1) on behalf of its
membership.”). 7
IV. Conclusion
For the reasons set forth above, the Court DENIES the
Secretary’s motion to dismiss. A separate Order accompanies this
Memorandum Opinion.
SO ORDERED
Signed: Emmet G. Sullivan
United States District Judge
March 12, 2019
7 Because the Court finds that Sierra Club has associational
standing, it need not consider whether Sierra Club also has
organizational standing. Metro. Wash. Chapter v. District of
Columbia, 57 F. Supp. 3d 1, 20 n.8 (D.D.C. 2014) (Sullivan, J.)
(declining to consider organizational standing because
organization met the requirements for associational standing).
28