The opinion of the court was delivered by: Sullivan, District Judge.
AMENDED FINDINGS OF FACTS AND CONCLUSIONS OF LAW AND
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.
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
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
5. Both §§ 1 and 3 of the Executive Order are at issue in this
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.
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.
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
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.
B. Project Labor Agreements
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 ...