The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiffs Building and Construction Trades Department of the AFL-CIO ("BCTD"), Contra Costa Building and Construction Trades Council ("Contra Costa BCTC"), and the City of Richmond ("Richmond") commenced this lawsuit to enjoin the enforcement of Executive Order 13202 ("EO 13202"), issued by President George W. Bush on February 17, 2001. EO 13202 prohibits federal agencies or recipients of federal funding from requiring or prohibiting Project Labor Management Agreements ("PLAs") in the bid specifications or other authorizing documents for construction contracts. Plaintiffs argue that EO 13202 is without authority and is preempted by the National Labor Relations Act ("NLRA"). Plaintiffs have named as defendants the federal agencies that are tasked with implementing EO 13202 and that provide funding subject to EO 13202 for construction projects in which the plaintiffs are involved.
Pending before the Court are cross-motions for summary judgment. Upon consideration of the parties' motions, oppositions, replies, and counsels' representations at oral argument, the motions by amicus curiae, as well as the applicable statutory and case law, the Court concludes that the plaintiffs' motion for summary judgment and for permanent injunctive relief must be GRANTED and the defendants' motion for summary judgment must be DENIED. Constitutional and statutory precedent of long-standing persuades the Court that the President lacked the requisite authority for Executive Order 13202. Accordingly, enforcement of EO 13202 is permanently enjoined.
1. Project Labor Management Agreements
Executive Order 13202 prohibits federal agencies and recipients of federal funding from requiring or prohibiting PLAs in the implementing documents for construction projects. Exec. Order No. 13,202, 66 Fed. Reg. 11225 (February 22, 2001), amended by Exec. Order No. 13,208, 66 Fed. Reg. 18717 (April 6, 2001). PLAs are "pre-hire" collective bargaining agreements that are generally prohibited by the NLRA. Contractors or owners and labor unions in the construction industry, however, are explicitly exempted from that prohibition. See 29 U.S.C. § 158 (e)-(f) (2001). A PLA is negotiated between an employer that has control over a particular construction project and a group of unions in order to meet the specific labor needs of that project. PLAs bind all contractors and subcontractors to a variety of provisions, which generally include: (1) recognition of signatory unions as sole representatives of covered workers; (2) prohibition of strikes and lockouts; (3) a dispute resolution process; (4) uniform rules on overtime and working hours; (5) hiring through union referral systems; and, (6) set wages for craft workers. See United States General Accounting Office, Report to Congressional Requesters, Project Labor Agreements: The Extent of Their Use and Related Information (May 1998).
PLAs are generally negotiated at the beginning of a construction project. Once an agreement has been reached, the employer will award contracts only to those contractors and subcontractors who agree to abide by the PLA. The process by which the PLA is negotiated and the contracts are awarded differs slightly depending on whether an employer is a private or public entity.
Private employers may negotiate directly with labor unions to create a PLA that will bind all contractors and subcontractors on a project to its terms. The employer can then either simply hire contractors who agree to abide by those terms, or grant the contracts through a competitive bidding process. If there is a bidding process, the employer will include the PLA in the bid specifications as a material requirement.
For public entities, the process is slightly more complicated. The process includes assessing the value of a PLA for a particular project, selecting a construction or project manager to negotiate and implement the agreement, negotiating the agreement, reviewing the agreement, and enforcing the agreement. Most public entities by law must use a competitive bid process to award contracts. See Mem. of Law of Amicus Curiae New York State Thruway Authority. A negotiated PLA is enforced by including it in the bid specifications for the project. Most state competitive bidding statutes require that a PLA be included in the bid specifications for a project as a material condition. Id. at 5 n.6.
In the absence of a PLA, individual unions and individual contractors can negotiate pre-hire agreements that set the terms and conditions for the workers and subcontractors who work for that particular contractor. However, these individual pre-hire agreements are not PLAs in that they can not establish uniform standards for an entire project.
Section 1 of EO 13202 applies to federal agencies who award construction contracts, and specifies the substantive prohibitions of the EO. Section 3 of EO 13202 applies to recipients of federal funding and incorporates the prohibitions of § 1:
Section 1. To the extent permitted by law, 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). Sec. 3. To the extent permitted by law, 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 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. Executive Order 13202, 66 Fed. Reg. 11225 (February 22, 2001). EO 13202 states that its authority lies in "the Constitution and laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 471 et seq." Id.
EO 13202 superceded President Clinton's June 1997 memorandum, which directed that executive agencies "may, on a project-by-project basis, use a project labor agreement on a large and significant project" when that agency determines it will "advance the Government's procurement interest in cost, efficiency and quality and in promoting labor-management stability . . ." President's Memorandum, "The Use of Project Labor Agreements for Federal Construction Projects" at 1, 1997 WL 309842 (June 5, 1997). The memorandum filled the vacuum created when President Clinton repealed the former President George Bush's Executive Order 12818 *fn1 , which explicitly prohibited the use of the PLAs in contracts in which federal agencies were parties. See "Revocation of Certain Executive Orders Concerning Federal Contracting," Exec. Order No. 12,836, 58 Fed. Reg. 7045 (Feb. 1, 1993), revoking Exec. Order No. 12818, 57 Fed. Reg. 48713 (Oct. 23, 1992).
Plaintiff BCTD is a an organization within the AFL-CIO consisting of fourteen national and international unions representing more than one million employees in construction and related industries throughout the United States and Canada. See Pls.' Motion for Summ. J., Ex. 4 (Second Decl. of Edward C. Sullivan). BCTD is the parent organization to over 300 local building and construction councils in the United States, including the Contra Costa BCTC, also a plaintiff here. Id. The Department and its affiliated councils are parties to PLAs across the United States on projects conducted by both private and public entities. Id. at ¶6 Prior to the issuance of EO 13202, many of these PLAs were on federal agency projects and projects receiving federal financial assistance. Id.; see also Pls.' Motion for Summ. J., Ex. 5 at ¶4 (Decl. of Wlliam "Giz" Kaczorowski). BTCD entered into a PLA with the construction manager for Maryland's State Highway Administration, for the purpose of participating in Maryland's construction of the Woodrow Wilson Bridge Project. The project was slated to receive over $1.5 billion in Department of Transportation funds. BTCD's PLA was submitted to the Federal Highway Administration ("FHWA") in order to be included in the State's bid solicitation for the project, but was denied by FHWA because FHWA believed the PLA was prohibited by EO 13202.
Richmond was planning on negotiating PLAs in two of its upcoming urban renewal construction projects with plaintiff Contra Costa BCTC, the Richmond Transit Village ("RTV") and the Ford Assembly Plant ("Ford"). Both projects secured funds from FEMA and HUD of $4.5 million and $20 million respectively, and the RTV project also received approximately $1.7 million of DOT funds. The City Council passed a resolution deciding not to authorize a PLA, citing their belief that EO 13202 would bar federal funding needed to complete the projects. FEMA and HUD since informed Richmond that EO 13202 did not apply to funding pledged by their agencies, as it was already awarded before EO 13202 was executed. The DOT funds for the RTV project are subject to EO 13202. Richmond has not indicated whether it would change its decision on including PLAs as a result, or whether it would be unable to do so for want of the DOT funds.
Richmond also claims it has numerous proposals for construction contracts pending anticipated federal funding, some of which Richmond would normally negotiate a PLA for. In addition, the plaintiffs also cite three other examples of projects that both anticipate receipt of federal funding, and expressed an intention to utilize a PLA before EO 13202 issued. These projects include the St. Louis Airport project, the Washington State Capitol, and the Walnut Creek-San Ramon Valley Improvement Project.
The plaintiffs, BCTD, Contra Costa BCTC, and Richmond, filed a motion for preliminary injunction and summary judgment against the defendant federal agencies, claiming that EO 13202 was unauthorized and preempted by the NLRA. Defendants filed a motion to dismiss or, in the alternative, for summary judgment, claiming that plaintiffs lacked standing to sue and that EO 13202 was valid.
Amicus Briefs were filed on behalf of the plaintiffs by: the State of Maryland, the New York State Thruway Authority, the State of New York, the Commonwealth of Massachusetts, and the National Economic Development & Law Center and the Sierra Club. On behalf of the defendants, amicus briefs were submitted by the Associated Builders and Contractors, Inc., *fn2 and the National Right to Work Legal Defense Foundation, Inc.
On August 13, 2001, this Court granted plaintiffs' motion for preliminary injunction with respect to enforcement of EO 13202 and the Woodrow Wilson Bridge Project bid specifications that were to be advertised on August 14, 2001. The Court found that plaintiffs would suffer irreparable harm if the bid specifications were advertised without the PLA requirement, and that the plaintiffs were likely to prevail on the merits of their NLRA preemption claim.
In response to this Court's order, on August 20, 2001, the State of Maryland submitted a revised PLA to the Federal Highway Administration for its review, stating that it intended to include the PLA in the bid specifications for the superstructure contract by addendum upon approval by FHWA. See Defs.' Mem. of P. & A. in Opp'n to Pls' Mot. for Summ. J. and Mem. of P. & A. in Reply to Pls' Opp'n to Defs.' Mot. to Dismiss, or in the Alternative for Summ. J. (hereinafter "Defs.' Opp'n and Reply"), Ex. 2 (August 20, 2001, letter from Parker Williams, Administrator of the Maryland State Highway Administration to FHWA). The FHWA has approval authority over the bid specifications on this project. On September 25, 2001, Administrator of the Maryland State Highway Administration wrote to the FHWA indicating that Maryland had not yet received a response to the revised bid specifications and also to a final financial plan submitted on September 4, 2001. See Pls.' Reply to Defs.' Opp'n to Mot. for Show Cause Order, Ex. 1. Maryland's letter reiterated its concern that it receive a reply by September 28, 2001, or the October 18, 2001, bid opening date for the superstructure contract would be delayed. Id.
On September 28, 2001, the FHWA replied to the State of Maryland's letter of September 25, 2001 in two separate letters. See Pls' Unopposed Mot. for Leave to Supplement Reply to Defs.' Opp'n to Mot. for Show Cause Order. The first September 28, 2001 letter approved the Financial Plan, thereby removing that impediment from proceeding on the superstructure contract. The second September 28, 2001 letter referred specifically to the bid specifications that were revised to include the PLA after this Court entered the preliminary injunction on August 13, 2001. In that letter, the FHWA stated:
With regard to the PLA, the FHWA has on several occasions advised the State that the recent judicial decision preliminarily enjoining President Bush's Executive Order has required us to develop standards and procedures for reviewing the Woodrow Wilson Bridge PLA that Maryland submitted on August 20, 2001. That process is not yet complete and until it is, we are not able to properly review and approve or disapprove the PLA.
The FHWA offered no timeframe for when those standards and procedures may be in place. The FHWA further stated that it had already approved one set of bid specifications. The FHWA suggested "[w]e see no reason why Maryland cannot go forward with its scheduled October 18, 2001, bid opening date with the current bid specifications, thus avoiding any delay in the project completion date." The approved bid specifications to which the FHWA referred are the subject of this Court's preliminary injunction.
On October 3, 2001, the State of Maryland informed the Court that it has extended the bid opening for the superstructure contract until November 29, 2001.
Plaintiffs contend that the Executive Order is invalid, as the President lacked constitutional or statutory authority to promulgate EO 13202, and is preempted by the NLRA. Plaintiffs argue that EO 13202 conflicts with the NLRA because: (1) EO 13202 prohibits the use of PLAs by public agencies and the recipients of federal funding; (2) the NLRA authorizes the use of PLAs, or at least intended for the use of PLAs to be unregulated; and, (3) the D.C. Circuit requires that an Executive Order in conflict with the NLRA is invalid under NLRA preemption doctrine and must be enjoined. Defendants argue that plaintiffs lack standing to challenge EO 13202, the President had both constitutional and statutory authority to promulgate EO 13202, and the EO 13202 does not conflict with the NLRA.
All plaintiffs have standing in this case. The Court rejects the government's extremely narrow understanding of the injury and causation requirements of standing doctrine. Moreover, the Court holds that the President lacked constitutional or statutory authority to promulgate at least Section Three of the EO 13202, which places conditions on the receipt of federal funds. Furthermore, the Court holds that EO 13202 violates both the Garmon and Machinists NLRA preemption doctrines. *fn3 EO 13202 violates Garmon preemption with respect to federally-funding projects conducted by private entities because the use of PLAs by private entities is expressly protected by the NLRA. EO 13202 violates Machinists preemption doctrine with respect to projects conducted by public entities, including both the recipients of federal funding and federal agencies themselves, because EO 13202 alters the balance of economic bargaining power between labor organizations and federally-funded project owners by eliminating the option of requiring a PLA in project bid specifications. Thus, both §§ 1 and 3 of EO 13202 are unlawful.
The three plaintiffs, BCTD, Contra Costa BCTC, and the City of Richmond, have met the constitutional standing requirements. In order to satisfy Article III's standing requirements, a plaintiff must meet three tests: injury, causation, and redressability. Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693 (2000); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102-03, 118 S. Ct. 1003 (1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130 (1992). The Supreme Court has defined an injury in fact to be "an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Laidlaw, 528 U.S. at 180. Causation requires that "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 not before the court." Id. Finally, redressability demands that "it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id.
1. Individual standing with respect to § 3.
BCTD has suffered a concrete and particularized injury, caused by EO 13202, that can be redressed by enjoining the enforcement of EO 13202. The government has advocated an extremely narrow conception of standing that goes far beyond Supreme Court precedent and the policy of judicial restraint that the standing doctrine reflects.
The government has repeatedly argued that Maryland, as the recipient of federal funding, is a more appropriate party than BCTD and is not present as a party in this case. See Defs.' Opp'n and Reply at 34. However, in responding to a similar argument that the "wrong parties" were before the Court, the Supreme Court has held that it is "self-evident" that "more than one party may have standing to challenge a particular action or inaction. Once it is determined that a particular plaintiff is harmed by the defendant, and that harm will likely be redressed by a favorable decision, that plaintiff has standing- regardless of whether there are others who would also have standing to sue." Clinton v. City of New York, 524 U.S. 417, 434-436, 118 S. Ct. 2091 (1998).
BCTD argues that the injury it has suffered as the result of the enactment of EO 13202 was the loss of the PLA it negotiated with the State of Maryland for the Woodrow Wilson Bridge Project and the ability to negotiate similar agreements with other project owners. That agreement named BCTD as the exclusive bargaining agent for the employees on the project, and determined the terms and conditions of employment for all workers on the project. The loss of that agreement is a particularized and concrete harm to BCTD, a labor organization that stood to play an important role in the project as the exclusive bargaining agent. Cf. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210, 115 S. Ct. 2097 (1995) (loss of construction contract by subcontractor resulting from federal financial incentive to general contractors to hire minority-owned businesses sufficient injury to support standing); Motor & Equipment Mfrs' Ass'n v. Nichols, 142 F.3d 449, 457 (D.C. Cir. 1998) ("'[W]hen a challenged agency action authorizes allegedly illegal [activity] that will almost surely cause [a] petitioner to lose business,' that petitioner has standing to make a claim.") (quoting El Paso Natural Gas Co. v. FERC, 50 F.3d 23, 27 (D.C. Cir. 1995)). Furthermore, in addition to losing its appointment as the exclusive bargaining agent, BCTD had an interest in the terms and conditions of employment that were amenable to labor interests and reflected in the agreement.
In addition, the loss of the ability to negotiate a global agreement with the State of Maryland or any other project owner that would benefit labor interests and would apply to all contractors on the project is a change in bargaining position that has been recognized by the Supreme Court as an injury for Article III purposes. See, e.g., Clinton v. City of New York, 524 U.S. 417, 433 n.22, 118 S. Ct. 2091 (1998) ("We have held, however, that a denial of a benefit in the bargaining process can itself create an Article III injury, irrespective of the end result.") The loss of the ability to negotiate and enter into PLAs with recipients of federal funding, to a very large labor organization that regularly enters into such agreements is itself a particularized and concrete harm. BCTD and its member councils are parties to PLAs across the country. They are parties to PLAs with both public and private entities, including recipients of federal funding. As the President of BCTD explained,
One of the goals of the Department and its affiliated Councils is to exercise our rights under the National Labor Relations Act to negotiate PLAs to govern labor relations on construction projects, and to do so on as many projects as we are able under market conditions . . . Prior to the issuance of Executive Order 13202 the Department regularly sought to negotiate, and did negotiate, PLAs on projects receiving federal funding. Pls.' Mot. for Summ. J., Ex.4 at ¶7.
The uncontroverted fact that plaintiffs regularly negotiated and entered PLAs with both public and private recipients of federal funding, and are no longer able to do so because of EO 13202, is sufficient injury to support standing to challenge § 1 and § 3 of EO 13202 with respect to both public and private recipients of funding. Pls.' Motion for Summ. J., Ex.4 at ¶6.
Defendants argue to the contrary that BCTD has not suffered an adequate injury in fact because the PLA it negotiated with the State of Maryland is outside the protection of the NRLA, and as a result plaintiffs have no legally protected interest under the NLRA on which to base standing. The government's extremely narrow conception of standing's injury requirement is not supported by the Supreme Court's interpretation of Article III of the Constitution. Citing Lujan, defendants argue that standing should be limited to an injury to a "legally protected interest." Defs.' Opp'n and Reply at 7. However, defendants then narrow the range of possible legally protected interests on which standing can be based, arguing that when a plaintiff challenges an executive order as preempted by federal statute, the plaintiff's injured interest must be a right created by that statute. Thus, defendants argue that because the PLA negotiated by BCTD does not fall within § 8(e) of the NLRA, BCTD has no legally protected interest on which to base standing to challenge the EO as preempted by the NLRA. Id. at 9, 20. This argument misconstrues the language of Lujan on which defendants rely and conflates the issue of whether a plaintiff has a private right to sue under a particular statute with the constitutional standing requirement. In order to challenge a government action as violating a particular statute, a plaintiff's injury need not be specifically protected by that statute. For example, in Bennett v. Spear, the Supreme Court upheld the standing of ranchers who stood to lose water usage because of a biological decision issued by the Fish and Wildlife Service and who challenged the substance of that biological decision under the citizen suit provision of the Endangered Species Act ("ESA"). 520 U.S. 154, 117 S. Ct. 1154 (1997). Clearly, the ranchers' water rights were not protected by the ESA, but the Court found that loss of the use of water was concrete and particularized injury for Article III purposes sufficient to allow the ranchers to challenge the government's action as unlawful. 520 U.S. at 168. As the Supreme Court has stated, standing's injury inquiry, grounded in the case or controversy requirement of Article III, focuses not on the nature of the claim, but on the harm to the plaintiff. See Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942 (1968) (standing "focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated").
Whether or not the PLA negotiated by BCTD falls within § 8(e) of the NLRA is an important question relevant to the merits of this case. Standing, however, does not turn on the applicability of the NLRA to this particular agreement. Even if the Woodrow Wilson Bridge Project PLA is not covered by § 8(e), BCTD had an agreement for that PLA that was rendered unenforceable by an allegedly unlawful government action. Because BCTD lost the benefits it stood to gain under that agreement, its designation as the exclusive bargaining agent for the employees on the project and the agreed upon terms and conditions for employment, as well as the opportunity to negotiate similar agreements with other owners, BCTD has suffered an actual injury sufficient for Article III purposes.
Of course, not every government action that somehow interferes with an existing contract or agreement gives the affected parties standing to challenge that government action. In addition to the requirement of injury, a party must show both causation and redressability. Laidlaw, 528 U.S. at 181. This is precisely the lesson of Lujan. In Lujan, the Supreme Court recognized the standing of both those who are the direct objects of government regulation, and those who are impacted by government regulation through less direct means. 504 U.S. at 561-62; see also Bennett, 520 U.S. at 168-69. The Lujan Court indicated that causation is easily satisfied when the injury is the direct result of government action of which the plaintiff is the object. Lujan, 504 U.S. at 561-62.
Causation may also be established when the impact is less direct, i.e., when the plaintiff's injury is produced by some third party action that is the result of a "determinative or coercive effect" of government action. Bennett, 520 U.S. at 168-69; Lujan, 504 U.S. at 561-62. While indirect causation is possible, the Supreme Court has yet to define the precise parameters for determining when indirect causation is sufficient for standing purposes. Each court faced with such a question must determine how much "coercion" is sufficient to hold that the government's action caused a third party's action to injure the plaintiff.
The parties disagree as to the nature of the coercive effect of EO 13202 on the recipients of federal funding who negotiate with labor organizations like BCTD. Defendants contend that there can be no causation between EO 13202 and any harm to BCTD because the decision whether or not to require a PLA or accept federal funding was a voluntary action by an independent third party, the State of Maryland. The fact that a third party made the decision that directly impacted the plaintiff does not foreclose a determination of causation. As the Supreme Court in Bennett v. Spear recognized, this argument "wrongly equates injury 'fairly traceable' to the defendant with injury as to which the defendant's actions are the very last step in the chain of causation." 520 U.S. at 169. The loss of the PLA must be "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Laidlaw, 528 U.S. at 181. Thus, in order for this Court to deny standing because of a lack of causation, the decision by the State of Maryland to reject the PLA must be sufficiently voluntary and independent of the threatened loss of federal funding.
Defendants ask the Court to hold that the action of a recipient of federal funds is necessarily voluntary when the only threatened sanction is the loss of funds. Defendants concede that as a result of EO 13202, a "grantee may well decide that it would rather retain the federal grant funds and, therefore give up the option of mandating the use of a PLA on a federally financed construction project." Defs.' Opp'n and Reply at 30-31. Thus, defendants argue that even when EO 13202 is the actual and only cause of a recipient's decision to accept federal funding and forgo a PLA, if there are no sanctions for the recipient beyond losing the funds, the recipient's decision has not been coerced or determined.
To borrow the words of the D.C. Circuit, "we need not attempt any broad explanation of the justiciability of indirect injury, for one narrow proposition is clear." Telephone and Data Systems Inc. v. FCC, 19 F.3d 42, 47 (D.C. Cir. 1994). This Court holds that it is clear that when plaintiffs can prove that the federal government's conditional funding offer is the actual and only reason for a recipient's decision, causation has been established. In other situations involving conditional funding or financial incentives created by the federal government, when a decision-maker is faced with many factors, it may well be too speculative to hold that one factor caused a decision. See, e.g., Allen v. Wright, 468 U.S. 737 104 S. Ct. 3315 (1984) (holding that causation was too speculative when parents of black children challenged IRS' failure to enforce policy of denying tax benefits to racially-discriminatory private schools); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 96 S. Ct. 1917 (1976) (holding that causation was too speculative between hospital denials of services to the poor and an IRS policy granting favorable tax treatment to non-profit hospitals who offered only emergency room treatment to the poor). Nevertheless, when plaintiffs can prove to the requisite standard of proof that the decision was actually caused by the federal government's threat to cease funding, and only by that threat, no speculation as to causation is required. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210, 115 S. Ct. 2097 (1995) (holding that "of course" plaintiff had standing to challenge lost contract when contract loss was actually caused by minority-preference system).
BCTD has presented sufficient uncontroverted evidence here to prove that the State of Maryland's decision to forgo the PLA on the Woodrow Wilson Bridge Project was caused by the promulgation of EO 13202. The plaintiffs negotiated an extensive PLA for the Project. See Pls.' Motion for Summ. J., Ex. A. On January 2, 2001, shortly before the agreement was publically announced, the State of Maryland informally submitted the PLA to FHWA for review. See Pls.' Motion for Summ. J., Ex. 4 at §19. On January 8, 2001, the State of Maryland informed potential bidders that a PLA had been negotiated and recommended to be included in the project contracts. Id. at §20; Pls.' Motion for Summ. J., Ex. B. On January 9, 2001, the PLA was formally submitted to FHWA for review. Id. at §19. In a letter dated January 17, 2001, the FHWA recommended minor changes. Id. Those changes were circulated and incorporated into a revised PLA. See Pls.' Motion for Summ. J., Ex. A. While the FHWA was reviewing the submitted PLA, on February 17, 2001, President Bush issued EO 13202. In a letter dated February 21, 2001, the FHWA informed Maryland that it was "unable to approve a PLA for this project," because of EO 13202. No other reason was given. See Pls.' Motion for Summ. J., Ex. C. Maryland subsequently removed the PLA from the bid specifications and issued contracts on the foundation portion of the bridge that did not include the PLA. See Pls.' Motion for Summ. J., Ex. 4 at §24.
Furthermore, after the Court preliminarily enjoined the application of EO 13202 to the Woodrow Wilson Bridge Project bid specifications to be announced on August 14, 2001, Maryland revised those bid specifications to include the PLA. As explained above, Maryland's request to FHWA for approval of the revised bid specifications was submitted on August 20, 2001 and is still pending. This evidence clearly indicates the but for EO 13202, Maryland would have included the negotiated PLA in its bid specifications for all contracts on the Woodrow Wilson Bridge Project.
Rather than focus on whether EO 13202 was the actual and only cause of Maryland's decision to remove the PLA from the bid specifications, defendants focus on the level of coercion generally caused by an offer of conditional funding. Defendants argue that BCTD lacks standing because the decision by Maryland whether or not to comply with the requirements of EO 13202 in exchange for the federal funding, is necessarily a voluntary and independent action of a third party because there is no sanction beyond the threatened loss of funding. However, defendants have not offered sufficient ...