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Public Citizen, Inc. v. Trump

United States District Court, District of Columbia

February 26, 2018

PUBLIC CITIZEN, INC., et al., Plaintiffs,
v.
DONALD J. TRUMP, President of the United States, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS United States District Judge.

         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 It requires Executive Branch agencies to identify two existing regulations to be repealed for every new regulation, requires agencies to offset the private costs of compliance posed by new regulations by eliminating the costs associated with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 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 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.

         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 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.

         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 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 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. 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 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 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 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. 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 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.

         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) 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 ...

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