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Public Citizen, Inc. v. Trump

United States District Court, District of Columbia

February 8, 2019

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



         This action, brought by three organizations challenging an Executive Order and related guidance issued by the Office of Management and Budget (“OMB”), is before the Court for a second time. In a prior decision, the Court concluded that Plaintiffs had not met their threshold burden of alleging or otherwise proffering facts sufficient to establish that they have Article III standing to sue. See Pub. Citizen, Inc. v. Trump, 297 F.Supp.3d 6, 40 (D.D.C. 2018) (“Pub. Citizen I”). The Court therefore dismissed the action. In response, and with leave of the Court, Plaintiffs filed an amended complaint, Dkt. 64, and they have now moved for partial summary judgment on the sole issue of their standing, Dkt. 71. Defendants, for their part, contend that nothing has changed, and they have renewed their motion to dismiss for lack of standing. Dkt. 70.

         The Court concludes that Plaintiffs have now met their burden of plausibly alleging that they have standing to sue. That is all they need to do to survive a Rule 12(b)(1) motion to dismiss that poses a facial challenge to the Court's jurisdiction. It is not all that they need to do, however, to prevail on their motion for partial summary judgment. To carry the more onerous burden applicable on summary judgment, Plaintiffs must show that there is no genuine dispute of material fact regarding their standing to sue. As the Court explains below, they have not done so.

         Establishing standing in a case like this one is no easy task. Pub. Citizen I, 297 F.Supp.3d at 21. To be sure, one need only read the Executive Order to understand that it is designed to constrain the ability of federal agencies to issue new regulations and to create incentives for those agencies to rescind existing regulations. Likewise, one need only read the Unified Agenda of Regulatory and Deregulatory Actions (“Unified Agenda”) to understand that many proposed rules have failed to advance or have been withdrawn since the Executive Order was issued. What is far less clear, however, is whether the Executive Order-as opposed to a more general change in policy between administrations-is the cause of this decline in regulatory activity.

         The hurdle that Plaintiffs face in attempting to establish a causal link between the Executive Order and an injury sufficient to sustain their standing is heightened, moreover, by three factors. First, the operation of the Executive Order is not transparent. The government has not disclosed, and there is no process for disclosing, whether the Executive Order has, in fact, precluded or delayed the finalization of any proposed rule. To contrary, although the administration has reported, in general, on its efforts to reduce regulation, it has yet to identify any proposed regulation that would have been adopted but for the Executive Order. Second, the Court must “avoid any undue intrusion on the discretion of the Executive Branch to set policy priorities.” Pub. Citizen I, 297 F.Supp.3d at 25. It is not the Court's role to decide which proposed regulations should, or should not, be adopted, nor is it the Court's role, absent a statutory directive, to set a timetable for an agency to act. Third, even assuming the Executive Order has precluded or delayed the finalization of proposed regulations, Plaintiffs still bear the burden of demonstrating that they or their members have been or will likely be injured by the government's failure to regulate. It is relatively easy to establish standing when you are the regulated party; it is more difficult to do so when the government fails to regulate the conduct of someone else. See, e.g., Arpaio v. Obama, 797 F.3d 11, 20 (D.C. Cir. 2015).

         But the existence of these hurdles does not mean that Plaintiffs' task is impossible. As detailed in Public Citizen I and explained further below, Plaintiffs have marshalled a multitude of examples of proposed regulatory actions that have failed to move forward since the Executive Order was issued, a number of which have moved from the “Final Rule Stage” to the “Long-Term Actions” section of the Unified Agenda. They have identified executive branch statements and logical inferences that support their claims of delay. And, they have filed numerous declarations in an effort to demonstrate that they, or their members, have suffered redressable injuries due to those delays. All told, they have now made out a plausible claim to standing.

         There is a significant difference, however, between establishing a plausible claim to standing and showing that Plaintiffs, in fact, have standing to sue. With respect to that more demanding burden, Plaintiffs have not cleared the substantial hurdles they face. They have not yet met-and ultimately may be unable to meet-their burden of proving that the Executive Order, as opposed to separate policy considerations or other factors, has delayed the issuance of a specific regulation, which would have otherwise issued, and that the resulting delay has caused them, or their members, to suffer a redressable injury. This leaves the case in an unfortunate state of incertitude: Plaintiffs have done enough to stay afloat but not enough to move forward.

         The Court must, accordingly, deny the government's motion to dismiss, Dkt. 70, but must also deny Plaintiffs' motion for partial summary judgment, Dkt. 71. The parties may renew their motions following the development of a further factual record. Finally, because the Court's subject matter jurisdiction remains in doubt, the Court must deny the motion of the States of California and Oregon to intervene, Dkt. 73, as premature.

         I. BACKGROUND

         A. Executive Order 13771 and OMB Guidance

          The Court described Executive Order 13771 and OMB's implementing guidance in its prior opinion, Pub. Citizen I, 297 F.Supp. at 13-15, and will provide only a brief overview here. Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs, ” imposes three new restrictions on the authority of agencies to adopt or to propose new regulations: a “two for one” requirement, an “offset” requirement, and an “annual cap” on the net costs of private compliance with covered regulations. Exec. Order No. 13771, 82 Fed. Reg. 9339 (Jan. 30, 2017). 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.” Id. § 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-a cap 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. § 3(d). The cap must be reset every year by the Director of OMB, id. § 3(d), who set the total at zero for fiscal year 2017, id. § 2(b), and from zero to negative $196 million, depending on the agency, for fiscal year 2018. 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 further provides 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 Director of OMB is charged with fleshing out the Executive Order's requirements and exceptions. OMB issued interim guidance on February 2, 2017 and 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) (“Interim Guidance”);[2] Office of Mgmt. & Budget, Guidance Implementing Executive Order 13771 (2017) (“Final Guidance”).[3] These guidance documents (collectively “OMB Guidance”) clarified the Executive Order in several respects.

         First, OMB explained that the Executive Order applies only to “significant regulatory action[s]” and “significant guidance document[s], ” Final Guidance, Q&A 2-that is, actions or guidance documents likely to “[h]ave an annual effect on the economy of $100 million or more” or to meet other criteria. Exec. Order No. 12866 § 3(f), 3 C.F.R. 638 (1994). Covered deregulatory actions, in contrast, need not qualify as “significant” and thus take a “wide[r] range” of forms than regulatory actions. Final Guidance, Q&A 4.

         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. See Final Guidance, Q&A 21, 32; Interim Guidance at 4. 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 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.” Id., 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.” Id., Q&A 18. But, agencies implementing these statutes 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. Id., 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].” Id., Q&A 29. This means, for example, that an agency that takes four deregulatory actions in fiscal year 1 may take two covered regulatory actions in year 1 or in future years, or that an agency that “issues two . . . deregulatory actions with total cost savings of $200 million” and a “regulatory action with a cost of $150 million” in fiscal year 1, “may bank the surplus cost savings of $50 million to offset the costs of another . . . regulatory action” in a future fiscal year. Id.

         Finally, neither the Executive Order nor the OMB Guidance provides a mechanism for notifying 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) (Counsel for Defendants: “I suspect [that information on delayed or abandoned regulatory actions] will not be public.”). Moreover, 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 a deregulatory action, and the guidance does not require that agencies publicly identify the “offsetting . . . deregulatory actions” that allow for the regulation. See Final Guidance, Q&A 37 (emphasis added). Similarly, although the Unified Agenda[4] should “include, to the extent practicable, . . . deregulatory actions that . . . are sufficient to offset [any] regulatory actions, ” id., the Unified Agenda merely designates certain actions as “deregulatory” pursuant to the Executive Order, without providing additional information about whether those actions were taken to comply with the Executive Order or for independent policy reasons. See Office of Mgmt. & Budget, Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions-Fall 2018.[5] 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.

         B. Procedural History

         Plaintiffs Public Citizen, Inc., Natural Resources Defense Council, Inc. (“NRDC”), and the Communication Workers of America, AFL-CIO (“CWA”) filed this action against the President, the Director of OMB, the heads of thirteen federal agencies, and the United States in February 2017, alleging that Executive Order 13771 “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. 1 at 5-6 (Compl. ¶ 9). Plaintiffs alleged that the Executive Order (1) exceeds the President's authority under Article II of the Constitution 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 actions that are ultra vires. Id. at 43-46 (Compl. ¶¶ 121-47). They further allege that the OMB Guidance (4) is ultra vires; and (5) violates the APA. Id. at 46-48 (Compl. ¶¶ 148-61).

         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, which, among other things, added further allegations relating to their standing to sue. See Dkt. 14 (First Am. Compl.). The government then renewed its motion to dismiss, Dkt. 15, and Plaintiffs cross-moved for summary judgment, Dkt. 16. In opposing Defendants' motion to dismiss and in seeking summary judgment, Plaintiffs relied on theories of both associational and organizational standing.

         The Court first addressed associational standing, which at the motion to dismiss stage requires that the plaintiff association “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 not the relief requested requires the participation of [the] individual members in the lawsuit.'” Pub. Citizen I, 297 F.Supp.3d at 17-18 (alterations in original) (quoting Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977)). As the Court explained, because the Plaintiffs could not plausibly allege that the delay in finalizing the regulatory actions at issue would certainly cause their members injury, they could plead only that that the identified individuals might someday suffer an injury based on the increase in risk due to the regulatory delay. Id. at 21. In order to satisfy Lujan's requirements of causation, redressability, and injury-in-fact, Plaintiffs therefore had to show “that the relevant agency intended to issue the regulation in question;” “that Executive Order 13771 will likely cause the agency to delay issuance of the regulation;” “that- with the relevant period of delay taken into account-an identified member of one of the associations will face a substantial probability of a concrete injury;” and, finally, “that the period of delay attributable to the Executive Order will substantially increase that risk of harm.” Id. at 22. Although Plaintiffs identified “over a dozen putative regulatory actions” that might be (or might have been) “delayed, weakened, or barred” because of the Executive Order or OMB Guidance, id. at 18, the Court concluded that Plaintiffs had failed to show that at least one of their members would otherwise have standing to sue in her own right, id. at 35. With respect to some of the identified regulatory actions, Plaintiffs failed to identify particular members who would likely be harmed. Id. at 18-19. With respect to others, they failed to allege facts or otherwise to show that the relevant agency was likely to have issued the particular rule absent the Executive Order. Id. at 25-28. And, with respect to yet others, they failed “plausibly to allege or otherwise to show that any delay in the regulatory action attributable to the Executive Order [would] substantially increase the risk that any of their members [would] be harmed or that any of their members [would] face a substantial probability of harm once such an increase in risk [was] taken into account.” Id. at 12 (emphasis omitted).

         The Court was also unconvinced by Plaintiffs' contention that they had organizational standing, that is, standing to sue in their own right as institutions. Id. at 40. Plaintiffs argued that the trade-off demanded by the Executive Order-requiring that agencies rescind at least two regulations for every new regulatory action-would chill their advocacy efforts. Id. at 35. But, as the Court explained, Plaintiffs did not allege or otherwise proffer evidence showing that they had actually declined to pursue a regulatory initiative out of concern that, if successful, their effort would come at the price of rescission of some other regulation they support. Id. at 38. Plaintiffs, instead, merely posited that the Executive Order had forced them to “evaluate whether the cost of the new rule-the loss of two or more unknown existing rules-[was] worth the benefit of the new rule.” Id. at 13 (emphasis added). Because Plaintiffs did not assert “that they have actually declined-or will actually decline-to pursue a new rule, ” and because the “burden of merely considering the issue” is not enough, the Court rejected this theory of organizational standing. Id. Finally, the Court concluded that, even had Plaintiffs alleged or shown that they had decided to forego a regulatory initiative out of concern that, if successful, the required tradeoff would be untenable, they had failed to allege or to proffer facts sufficient to show that the Executive Order was the cause of that injury. Id. at 38. As the Court explained, the Supreme Court's decision in Clapper v. Amnesty Int'l USA, 568 U.S. 398, 416 (2013), teaches that a plaintiff “cannot establish standing by chilling [its] own advocacy based on” a purely speculative fear of future harm. Pub. Citizen I, 297 F.Supp.3d at 39. And, here, Plaintiffs had not established that the relevant causal chain-that is, that (1) the Executive Order dissuaded them from pursuing a specific regulatory initiative; (2) had they pursued that initiative, the relevant agency would likely have rescinded an existing regulation (or perhaps two regulations) in order to generate the credits necessary to promulgate the new rule; (3) in the absence of Plaintiffs' advocacy for a new rule and the requirements of the Executive Order, it is unlikely that the agency would have rescinded that existing regulation (or those regulations); and (4) rescission of that existing regulation (or those regulations) would have caused Plaintiffs or their members a cognizable injury. Id.

         Following the Court's decision, Plaintiffs moved for leave to file a Second Amended Complaint, arguing that their proposed pleading “sets forth allegations sufficient to establish standing under the reasoning of the Court's memorandum opinion” and that they would also offer “declarations substantiat[ing] those allegations.” Dkt. 64 at 10-11. In light of “the important issues presented in this litigation, and in the interest of efficiency, ” Defendants “elected not to oppose Plaintiffs' [m]otion” for leave to amend. Dkt. 65. At the same time, however, they emphasized that, in their view, nothing contained in the Second Amended Complaint or the accompanying declarations was sufficient to overcome the jurisdictional deficiencies identified in the Court's opinion. Id. The parties then jointly proposed a briefing schedule for Defendants' renewed motion to dismiss, and (although reserving Defendants' right to seek a stay of briefing on the merits) for Plaintiffs' renewed cross-motion for summary judgment. Dkt. 66. The Court adopted the proposed schedule but, on Defendants' motion, directed that the parties limit briefing to “questions going to the Court's jurisdiction.” Minute Order (May 1, 2018). Defendants then moved to dismiss the Second Amended Complaint, pursuant to Rule 12(b)(1) for lack of standing, Dkt. 70, and Plaintiffs cross-moved for partial summary judgment on the issue of standing, Dkt. 71. Finally, the States of California and Oregon moved to intervene pursuant to Rule 24(a) & (b), Dkt. 73, and requested that the Court take judicial notice of certain exhibits in support of their motion, Dkt. 81.

         II. ANALYSIS

         Two sets of motions are now before the Court. The first set returns to the issue of standing, and the second set relates to whether the states of California and Oregon should be permitted to intervene in this litigation. The Court will start, as it must, with standing. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (“The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States' and is ‘inflexible and without exception.'”) (alteration in original) (citation omitted). The Court will then address the States' motion for leave to intervene.

         A. Plaintiffs' Standing to Challenge the Executive Order and OMB Guidance

          As the parties seeking to invoke the Court's jurisdiction, Plaintiffs bear the burden of establishing that they have standing to sue. Sierra Club v. E.P.A., 292 F.3d 895, 900 (D.C. Cir. 2002). The extent of that burden, however, varies with the “the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). As explained below, Defendants' motion to dismiss, Dkt. 70, and Plaintiffs' cross-motion for partial summary judgment, Dkt. 71, highlight the differences between the burdens applicable at the motion to dismiss stage and the motion for summary judgment stage. At least for present purposes, moreover, these differences are dispositive.

         To avoid confusion regarding the applicable standard, the Court will first address whether Plaintiffs have carried their burden for purposes of Defendants' motion to dismiss and will then turn to the distinct issues posed by Plaintiffs' cross-motion for partial summary judgment.

         1. Defendants' Motion to Dismiss

          At the motion to dismiss stage, a challenge to the plaintiff's standing “may take one of two forms.” Hale v. United States, No. 13-1390, 2015 WL 7760161 at *3 (D.D.C. Dec. 2, 2015). First, a Rule 12(b)(1) motion “may raise a ‘facial' challenge to the Court's jurisdiction.” Id. A facial challenge asks whether the complaint alleges facts sufficient to establish the court's jurisdiction. Lujan, 504 U.S. at 561; see also Owner-Operator Indep. Drivers Ass'n v. Dep't of Transp., 879 F.3d 339, 346-47 (D.C. Cir. 2018). “To survive a motion to dismiss for lack of standing, a complaint must state a plausible claim that the plaintiff has suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a favorable decision on the merits.” Humane Soc'y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). In this posture, the Court must accept the factual allegations of the complaint as true, Erby v. United States, 424 F.Supp.2d 180, 182 (D.D.C. 2006); see also I.T. Consultants, Inc. v. Republic of Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003), but must nonetheless assess the “plausibility” of the plaintiff's standing allegations in light of the relevant context and the Court's “judicial experience and common sense, '” Humane Soc'y of the U.S., 797 F.3d at 8 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

         “Alternatively, a Rule 12(b)(1) motion may raise a ‘factual' challenge to the Court's jurisdiction.” Hale, 2015 WL 7760161, at *3. When a Rule 12(b)(1) motion is framed in this manner, the Court “may not deny the motion . . . merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant” but “must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.” Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). Although the Court “has considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction, ” it “must . . . afford the nonmoving party an ample opportunity to secure and present evidence relevant to the existence of jurisdiction.” Prakash v. Am. Univ., 727 F.2d 1174, 1179-80 (D.C. Cir. 1984) (internal citations omitted). The Court may rely on those factual allegations in the complaint that the defendant has not controverted with competent evidence, and it may also consider the “evidentiary material in the record, ” Feldman v. FDIC, 879 F.3d 347, 351 (D.C. Cir. 2018), along with any other materials that are subject to judicial notice, Scahill v. District of Columbia, 271 F.Supp.3d 216, 223-24 (D.D.C. 2017). But, “at this threshold stage, ” the Court is “obligated . . . to accord [Plaintiffs] the benefit of all reasonable inferences, ” and, “[a]bsent evidentiary offering[s]” that controvert specific jurisdictional allegations, the Court must delay “weighing the plausibility” of those allegations until “a later stage of the proceedings.” Feldman, 879 F.3d at 351.

         With minor exception discussed below, Defendants' current motion to dismiss asserts a facial challenge to Plaintiffs' Second Amended Complaint. Defendants have not offered any competent evidence, and, at least for purposes of their motion to dismiss, they do not challenge the accuracy of any specific (non-conclusory) fact set forth in the Second Amended Complaint or in Plaintiffs' declarations. As a result, there is no factual dispute for the Court to resolve in “ruling upon the motion to dismiss.” Phoenix Consulting Inc, 216 F.3d at 40. The Court must therefore accept Plaintiffs' allegations as true and assess whether those allegations-as elucidated by Plaintiffs' declarations, the various administrative proceedings that they have identified, any matters subject to judicial notice, and “judicial experience and common sense, ” Humane Soc'y of the U.S., 797 F.3d at 8 (quoting Iqbal, 556 U.S. at 679)-set forth a plausible claim to Article III standing.

         In opposing the government's motion to dismiss, Plaintiffs identify five putative regulatory actions that they contend have been delayed or withdrawn as a result of Executive Order 13771, purportedly causing at least one identified member of a plaintiff-association to suffer a redressable injury in fact. Dkt. 71 at 18-19. If they are correct with respect to at least one of those putative regulatory actions, that-along with the findings of germaneness and suitability that the Court has already made, Pub. Citizen I, 297 F.Supp.3d at 18-would be enough to survive Defendants' motion to dismiss. See Hunt, 432 U.S. at 343. Because the Court is now convinced that Plaintiffs have made a plausible showing of associational standing with respect to one of those putative actions-the National Highway Traffic Safety Administration's proposed rule on vehicle-to-vehicle communications, Federal Motor Vehicle Safety Standard; V2V Communications, 82 Fed. Reg. 3854 (proposed Jan. 12, 2017) (“V2V Proposed Rule”)- the Court need address only that proposed rule.

         a. The V2V Proposed Rule and Public Citizen I

         As explained in Public Citizen I, on January 12, 2017, the National Highway Traffic Safety Administration (“NHTSA”) proposed a rule that would mandate that all new “light vehicles” be equipped with vehicle-to-vehicle-or “V2V”-communications technology and that would standardize the format for V2V communications.[6] 297 F.Supp.2d at 33. That proposal followed NHTSA's issuance of an advanced notice of proposed rulemaking on August 20, 2014, Federal Motor Vehicle Safety Standard: Vehicle-to-Vehicle (V2V) Communications, 79 Fed. Reg. 49270 (proposed Aug. 20, 2014), which generated “more than 900 comments.” V2V Proposed Rule, 82 Fed. Reg. at 3876. As reflected in those comments, safety experts and representatives of the automotive industry “generally” supported the proposed rule; indeed, according to NHTSA, auto industry commenters stressed that “the Federal government need[ed] to assume a large role in establishing key elements of the V2V environment” and that the a regulation was “necessary” to ensure “interoperability” and thus “to realize the full potential benefits of V2V.” Id. at 3877.

         In the notice of proposed rulemaking, NHTSA agreed with those assessments. It explained that, “[w]ithout a mandate to require and [to] standardize V2V communications, . . . manufacturers will not be able to move forward in an efficient way.” Id. at 3854. NHTSA further opined that V2V technology “has the potential to revolutionize motor vehicle safety . . .[b]y providing drivers with timely warnings of impending crash situations.” Id. at 3855. Once fully employed, according to NHTSA, the technology is estimated “to prevent hundreds of thousands of crashes and [to] prevent over one thousand fatalities annually.” Id. at 3854. Under the proposed rule, public comments were due by April 12, 2017. Id.

         Shortly after the last presidential election, however, the new administration hit pause on the V2V rule and other rules. The Department of Transportation, of which NHTSA is a component, announced that “‘many rule schedules [would] need to be revised' to permit review ‘by new [Department] leadership.'” Pub. Citizen I, 297 F.Supp.3d at 26 (alterations in original). As the Court observed in its prior opinion, changes of that sort are “typical when a change in administration occurs.” Id. The following “month, however, the Department offered a different explanation for suspending [its] rulemaking schedules: to permit ‘evaluat[ion] in accordance with' Executive Order 13771.” Id. For each of the next five months, the Department issued similar notices. Id. By the time OMB published its Spring 2017 Unified Agenda, the V2V Proposed Rule had been moved to the status of “[l]ong-[l]erm [a]ctions” and the “[n]ext [a]ction” was listed as “[u]ndetermined.” Spring 2017 Agenda. The V2V Proposed Rule has remained in that status ever since. See, e.g., Fall 2018 Agenda.

         Plaintiffs argued in Public Citizen I that this was one of the many putative regulatory actions that Executive Order 13771 was delaying or preventing, to the detriment of many of their members. The Court agreed, up to a point, concluding that this was one of five (and possibly six) rules that cleared a number of initial hurdles. Plaintiffs had identified specific members who they alleged had been injured, see Pub. Citizen I, 297 F.Supp.3d at 18-19; and had identified specific regulatory actions that were threatened by the Executive Order, see Id. at 19-20. The five putative regulatory actions, moreover, had reached the notice-and-comment stage and thus (1) reflected the agencies' preliminary assessment that these proposed rules-or some logical outgrowth of them-should be adopted, and (2) required the agencies “to consider the comments . . . received and to articulate a reasoned explanation for” declining to finalize the proposed rules, Williams Nat'l Gas v. FERC, 872 F.2d 438, 450 (D.C. Cir. 1989); see also Pub. Citizen I, 297 F.Supp.3d at 22-25. The Court, accordingly, concluded that Plaintiffs had plausibly alleged that Executive Order 13771 “ha[d] resulted in some measure of delay with respect to the [five or] six regulatory actions that Plaintiffs ha[d] identified.” Id. at 25-28 (emphasis omitted). None of these putative regulatory actions, however, cleared the final hurdle of plausibly alleging injury in fact-that is, that an actual or imminent harm was suffered or would likely be suffered by an identified member of one of the plaintiff-associations. Id. at 28.

         As the Court explained, Plaintiffs “devote[d] scant attention” to this core requirement for establishing standing. Id. at 28. Because Plaintiffs challenged agency delay rather than agency action, they did “not allege that any of their members ha[d] suffered an actual injury but, instead, premised their claim of associational standing on the theory that at least one member face[d] an increased risk of harm-such as death, bodily injury, or financial loss-due to the delay caused by the Executive Order.” Id. “Increased-risk-of-harm theories are often difficult to substantiate, given uncertainty about future events and uncertainty about the ‘degree' of risk the law demands.” Id. To establish standing in this way, a plaintiff must allege-and must eventually show-that the challenged action (or inaction) has “substantially increased” the plaintiff's “risk of harm” and that he or she faces a “substantial probability of harm with that increased [risk] taken into account.Pub. Citizen, Inc. v. NHTSA., 489 F.3d 1279, 1295 (D.C. Cir. 2007) (emphasis omitted). The Court concluded that none of the putative regulatory actions identified in Public Citizen I -including the V2V rule-satisfied this demanding standard. 297 F.Supp.3d at 29.

         b. Purchaser Standing

         Responding to this difficulty, Plaintiffs' Second Amended Complaint takes a different approach. Plaintiffs now that “[t]he delay of the V2V rule is depriving” two of their members “of the opportunity to purchase vehicles with this desired feature.” Dkt. 64-2 at 24 (redlined version of Second Am. Compl. ¶ 79). Although that addition might seem minor, it signals a significant change in Plaintiffs' theory of standing: rather than rely on an increased-risk-of-harm theory of standing, as they previously did, they now contend that two members of Public Citizen, Amanda Fleming and Terri Weissman, would have “purchaser standing” were they to sue in their right and that their interests are sufficient to sustain Public Citizen's associational standing to sue. Dkt. 71 at 27-31.

         Under the doctrine of purchaser standing, 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 v. Sebelius, 671 F.3d 1275, 1281 (D.C. Cir. 2012). In Consumer Federation of America v. F.C.C., for example, the D.C. Circuit held that a subscriber to Comcast's cable service had standing to challenge the merger between AT&T Broadband and Comcast because the merger would affect his ability to continue to use Comcast and still select his own internet service provider-an injury in fact even if, as the defendants posited, the plaintiff could have still “obtain[ed] high-speed internet access using technologies other than cable.” 348 F.3d 1009, 1012 (D.C. Cir. 2003); see also Coal. for Mercury-Free Drugs, 671 F.3d at 1281. The D.C. Circuit reached a similar conclusion in Chamber of Commerce of U.S. v. Securities & Exchange Commission, where the court held that the Chamber of Commerce had standing to challenge an SEC regulation permitting a mutual fund to engage in certain transactions only if its board is composed of “no less than 75% independent directors” and it has “an independent chairman.” 412 F.3d 133, 136 (D.C. Cir. 2005). As the Court of Appeals explained, the Chamber had standing because the rule limited its ability to engage in transactions with mutual funds that failed to meet those conditions. Id. at 138. The D.C. Circuit's decision in Competitive Enterprise Institute v. NHTSA is to like effect. 901 F.2d 107 (D.C. Cir. 1990). In that case, the court held that a consumer group had standing to challenge NHTSA's fuel-economy standards because members of the group sought to purchase “large size” cars “in a price range they could afford, ” and the fuel-economy standards restricted “the production of such vehicles.” 901 F.2d at 112-13. And, most recently, in Orangeburg, South Carolina v. Federal Energy Regulatory Commission, the D.C. Circuit held that a city government had standing to challenge the Federal Energy Regulatory Commission's approval of an agreement between two utilities because that approval prevented the city from purchasing “a desired product (reliable and low cost wholesale power), ” 862 F.3d 1071, 1074 (D.C. Cir. 2017), even though the city could and did “purchase wholesale power from another source, ” id. at 1078.

         Here, Plaintiffs contend that the delay in finalizing the V2V rule has “depriv[ed]” Fleming and Weissman “of the opportunity to purchase vehicles with a particular desired feature.” Dkt. 71 at 27. In particular, the Second Amended Complaint alleges that Fleming and Weissman “would like to purchase vehicles equipped with V2V communications when they purchase new cars in the next several years, ” Dkt. 67 at 23 (Second Am. Compl. ¶ 79); that “[t]he delay of the V2V rule is depriving [them] of the opportunity to purchase vehicles with this desired feature, ” id.; and that, by NHTSA's own account, “manufacturers will not be able to move forward in an efficient way and that a critical mass of equipped vehicles would take many years to develop, if ever, ” id. at 22 (Second Am. Compl. ¶ 77) (quoting 82 Fed. Reg. at 3854). Plaintiffs back those allegations up, moreover, with declarations from Fleming, Dkt. 16-7 (Fleming Decl.), and Weissman, Dkt. 16-10 (Weissman Decl.). Fleming attests that she plans to purchase a new car “in the next 5 years or so, ” Dkt. 16-7 at 2 (Fleming Decl. ¶ 5), and Weissman attests that she plans to buy a new car “in the next 5-7 years, ” Dkt. 16-10 at 2 (Weissman Decl, ¶ 4). Both attest that they would like their new cars to include V2V technology. Dkt. 16-10 at 2 (Weissman Decl, ¶ 4); Dkt. 16-7 at ...

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