The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
FINDINGS OF FACTS AND CONCLUSIONS OF LAW AND PRELIMINARY INJUNCTION
1. President George W. Bush issued Executive Order No. 13202 on February 17, 2001, and amended it on April 4, 2001. 66 Fed. Reg. 11225 (Feb. 22, 2001) and 66 Fed. Reg. 18717 (April 11, 2001) (attached as Exhibits 1 and 2, respectively, to Plaintiffs' Motion for Summary Judgment or, in the Alternative, Application for Preliminary Injunction (hereinafter "Pls. Mot.")).
2. In issuing Executive Order No. 13202 ("Executive Order"), President Bush invoked the "authority vested in [the President] by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. § 471 et seq. . . ." ("the Procurement Act"). (66 Fed. Reg. at 11225, §1; Ex. 1 to Pls. Mot.). President Bush did not specify any "law of the United States" other than the Procurement Act as the basis of his authority.
3. Section One of the Executive Order applies to contracts with the Federal Government, and states:
any executive agency awarding any construction contract after the date of this order, or obligating funds pursuant to such a contract, shall ensure that neither the awarding Government authority nor any construction manager acting on behalf of the Government shall, in its bid specifications, project agreements, or other controlling documents:
(a) Require or prohibit bidders, offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations, on the same or other related construction project(s); or
(b) Otherwise discriminate against bidders, offerors, contractors, or subcontractors for becoming or refusing to become or remain signatories or otherwise to adhere to agreements with one or more labor organizations, on the same or other related construction project(s).
(c) Nothing in this section shall prohibit contractors or subcontractors from voluntarily entering into agreements described in subsection (a). Id.
4. The Executive Order also applies to federally assisted construction projects, and states in Section Three:
any executive agency issuing grants, providing financial assistance, or entering into cooperative agreements for construction projects, shall ensure that neither the bid specifications, project agreements, nor other controlling documents for construction contracts awarded after the date of this order by the recipients of grants or financial assistance or by parties to cooperative agreements, nor those of any construction manager acting on their behalf, shall contain any of the requirements or prohibitions set forth in section 1(a) or (b) of this Order. Id.
5. Both §§1 and 3 of the Executive Order are at issue in this case.
6. The Executive Order grants federal executive agencies discretion to exempt projects on which a project labor agreement was in effect, and on which at least one construction contract had been awarded prior to the Executive Order's February 17, 2001, effective date. (66 Fed. Reg. at 18718; Ex. 2 to Pls. Mot.).
7. The Executive Order also grants federal executive agencies discretion to exempt projects if they find "that special circumstances require an exemption in order to avert an imminent threat to public health or safety or to serve the national security." (66 Fed. Reg. at 11226, § 5(a); Ex. 1 to Pls. Mot.). The Executive Order specifically excludes consideration of "the possibility or presence of a labor dispute concerning the use of contractors or subcontractors who are nonsignatories to . . . [collective bargaining] agreements . . . or concerning employees on the project who are not members of or affiliated with a labor organization" as "special circumstances" warranting an exception. (66 Fed. Reg. at 11226, § 5(b); Ex. 1 to Pls. Mot.).
8. The Executive Order directs the heads of executive agencies to comply with its terms for all contracts awarded, and funds obligated, after the date the Executive Order was signed, February 17, 2001. The Executive Order is therefore self-executing. (66 Fed. Reg. at 11225, §§ 1 and 3; Ex. 1 to Pls. Mot.).
9. The Executive Order directs the Federal Acquisition Regulatory Council ("FAR Council") to amend the Federal Acquisition Regulation ("FAR") to incorporate the Executive Order's terms. (66 Fed. Reg. at 11226, §7; Ex. 1 to Pls. Mot.). Because the FAR only applies to federal contracting, and not federal financial assistance, any amendment would incorporate the terms of Section One, and not Section Three, of the Executive Order.
10. On May 16, 2001, the Department of Defense, General Service Administration ("GSA"), and National Aeronautics and Space Administration ("NASA"), published an interim rule amending the Federal Acquisition Regulation ("FAR") to incorporate the Executive Order. 66 Fed. Reg. 27414 (May 16, 2001) (Ex. 3 to Pls. Mot.). Under authority of defendants Secretary of Defense Rumsfeld, Acting GSA Administrator Davis and NASA Administrator Goldin, the interim rule was promulgated without prior opportunity for public comment in order to comply with the Executive Order's directive that the FAR Council amend the FAR within 60 days of the Executive Order's issuance. (Id. at 27415). The interim rule took effect on May 16, 2001. (Id. at 27414).
B. Project Labor Agreements
11. A project labor agreement ("PLA") is a special kind of multi-union, multi-employer collective bargaining agreement in the construction industry, designed to establish uniform terms and conditions of employment, and to systematize labor relations across a construction project. (Second Declaration of Edward C. Sullivan ("Second Sullivan Dec.") at ¶5, Ex. 4 to Pls. Mot.).
12. PLAs typically contain two clauses that ensure that the PLA is applied and enforced across the construction site. First, PLAs require the entity issuing bids for the construction project to include a specification requiring any employer awarded a contract to abide by the PLA. Second, PLAs include a clause requiring the employer to contract or subcontract work only to an employer that agrees to be bound by the PLA. (Second Sullivan Dec. at ¶8, Ex. 4 to Pls. Mot.; Declaration of Michael W. D'Antuono ("D'Antuono Dec.") at ¶¶ 9 and 10, attached as Exhibit 1 to Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, and Reply to Defendants' Opposition to Plaintiffs' Renewed Application for Preliminary Injunction ("Pls. Opp.")).
C. The Building and Construction Trades Department
13. Plaintiff Building and Construction Trades Department, AFL-CIO ("BCTD"), is an organization within the AFL-CIO consisting of fourteen national and international labor organizations that represent workers in the construction industry throughout the United States and Canada. (Second Sullivan Dec. at ¶ 2, Ex. 4 to Pls. Mot.).
14. Plaintiff BCTD is the parent organization to over 300 local building and construction trades councils in the United States. One such local building and construction council is plaintiff Contra Costa Building and Construction Trades Council. (Id. at ¶ 3).
15. Plaintiff BCTD and its affiliated councils have negotiated, and continue to negotiate, numerous PLAs across the United States, involving several billions of dollars worth of construction. Many of the PLAs Plaintiff BCTD negotiated in the past were for federal public works projects and projects that are financed, at least in part, with federal financial assistance. If not for the Executive Order, Plaintiff BCTD and its councils would continue to negotiate PLAs covering federal and ...