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Public Citizen, Inc. v. Trump

United States District Court, District of Columbia

December 20, 2019

PUBLIC CITIZEN, INC., et al., Plaintiffs,
Donald J. TRUMP, et al., Defendants.

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          Scott Lawrence Nelson, Allison Marcy Zieve, Public Citizen Litigation Group, Washington, DC, Patti A. Goldman, Earthjustice, Seattle, WA, for Plaintiffs.

          Christopher M. Lynch, Daniel Edward Bensing, Michael Leon Drezner, U.S. Department of Justice, Brett A. Shumate, Jones Day, Washington, DC, for Defendants.


         RANDOLPH D. MOSS, United States District Judge.

         The question whether Plaintiffs have standing to challenge the lawfulness of Executive Order 13,771 and the related Office of Management and Budget ("OMB") Guidance is now before the Court for a

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third time. The first time that question was presented, the Court granted Defendants' motion to dismiss, holding that Plaintiffs had failed to carry their threshold burden of alleging or proffering facts sufficient to establish Article III standing. Pub. Citizen, Inc. v. Trump ("Public Citizen I"), 297 F.Supp.3d 6, 12 (D.D.C. 2018). With leave of the Court, Plaintiffs then filed an amended complaint and moved for partial summary judgment on the sole issue of their standing, Dkt. 67; Dkt. 71, and Defendants moved, once again, to dismiss for lack of standing, Dkt. 70. That time, the Court held that Plaintiffs had met their burden of plausibly alleging that they have standing and therefore denied Defendants' motion to dismiss. Pub. Citizen, Inc. v. Trump ("Public Citizen II"), 361 F.Supp.3d 60, 64 (D.D.C. 2019). But, the Court concluded that Plaintiffs had failed to adduce undisputed evidence sufficient to establish their standing. Id. In particular, the Court concluded that Plaintiffs had fallen short in their effort to establish that the Executive Order, rather than separate policy considerations or other factors, caused any delay in issuing a final rule or withdrawal of a rule. Id. at 91. The Court, accordingly, denied Defendants' motion to dismiss and denied Plaintiffs' cross-motion for summary judgment. Id. at 93. It then granted Plaintiffs leave to take limited discovery concerning whether the Executive Order had caused any relevant delay or withdrawal of a rule. See Dkt. 89 at 2, 5. Following the completion of discovery, Plaintiffs have once again moved for partial summary judgment on the issue of standing, Dkt. 95, and Defendants have cross-moved for summary judgment on the same issue, Dkt. 96. The Court now concludes that Plaintiffs have not established their standing and will, accordingly, dismiss the action for lack of Article III jurisdiction.

         In reaching that decision, the Court is mindful that Plaintiffs are large associations with several hundred-thousand members, see Dkt. 14 at 4-7 (Am. Compl. ¶¶12-14); that Plaintiffs and their members have wide-ranging interests in government regulation in areas relating to consumer protection, public health and safety, the environment, and workers' rights, id.; and that the stated goal and presumptive effect of the Executive Order is to reduce existing federal regulations as well as to discourage the promulgation of new regulations in these and other arenas, see Exec. Order No. 13,771, 82 Fed.Reg. 9,339 (Jan. 30, 2017). Against this backdrop, it is certainly plausible, and perhaps likely, that the Executive Order and the OMB Guidance have delayed or derailed at least some regulatory actions that, if adopted, would materially benefit Plaintiffs or some of their members. But, for several reasons, it is hard to say with the requisite degree of confidence which actions those are, what would have occurred in the absence of the Executive Order, how any identifiable individual (or entity) is harmed, and whether any such harm—or risk of harm—is sufficient to establish standing. It is hard to know because, as counsel for the government has acknowledged, "neither the Executive Order nor the OMB Guidance provides a mechanism for notifying the public whether and when a proposed ... regulatory action [has been] delayed or abandoned due to the requirements of the Executive Order. Pub. Citizen II, 361 F.Supp.3d at 67 (citing Dkt. 56 at 64 (Tr. Oral Arg. 64:7-22). It is hard to know because agency decisions about whether and how quickly to move forward with regulatory initiatives are often informed by a variety of considerations, and, when agencies simply delay acting on discretionary regulatory initiatives, those considerations are seldom a matter of public record. And, it is hard to

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know because the Executive Order does not stand alone but, rather, reflects the current Administration's more general wariness of federal regulation. See, e.g., Exec. Order No. 13,771, 82 Fed.Reg. 9,339 (Jan. 30, 2017) (generally asserting that "[i]t is essential to manage the costs associated with the government imposition of private expenditures required to comply with Federal regulations."); see also Public Citizen I, 297 F.Supp.3d at 26 (noting that delays in finalizing rules could be "attributed to a change in administration and a shift in policy priorities"); Public Citizen II, 361 F.Supp.3d at 64 (recognizing a "general change in policy between administrations" and that "the administration has reported, in general, its efforts to reduce regulation").

         Even in this unusual context, however, Plaintiffs bear the burden of establishing their standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). They must show that the future injury that they allege is both "certainly impending," Clapper v. Amnesty Int'l USA, 568 U.S. 398, 401, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013), and "redressable by a favorable ruling," Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 150, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010), and they must demonstrate that they will suffer a cognizable, "personal and individual," as opposed to a generalized, harm in the absence of judicial intervention, Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130. The risk that government action might otherwise escape judicial review does not justify reallocating Plaintiffs' burden of proof or exercising jurisdiction based on conjecture or speculation. See id. at 560, 112 S.Ct. 2130 (Lujan requirements are "irreducible"); Clapper, 568 U.S. at 411-13, 420-21, 133 S.Ct. 1138. The Court has provided Plaintiffs with three opportunities to meet this burden and, most recently, allowed Plaintiffs to take focused discovery in aid of establishing jurisdiction. Notwithstanding these opportunities and Plaintiffs' vigorous efforts—including the submission of multiple declarations, the identification of well over a dozen purported regulatory actions or inactions, the amendment of their complaint, and extensive briefing on multiple theories of associational and organizational standing—Plaintiffs have failed to carry their burden.

         The Court will, accordingly, deny Plaintiffs' motion for partial summary judgment, Dkt. 95, and will grant Defendants' cross-motion for summary judgment for lack of standing, Dkt. 96.

         I. BACKGROUND

         A. Executive Order 13,771 and OMB Guidance

         Because the Court has previously described the challenged Executive Order and OMB Guidance at length, Public Citizen I, 297 F.Supp.3d at 13-15; Public Citizen II, 361 F.Supp.3d at 65-68, the Court will do so only briefly here. Executive Order 13,771 imposes three 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 covered regulations. Exec. Order No. 13,771, 82 Fed.Reg. 9,339 (Jan. 30, 2017). First, the "two for one" requirement provides that "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). Second, the "offset" requirement provides that agencies must 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 prohibits an agency

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from adopting new regulations that, in the aggregate, exceed the agency's "total incremental cost allowance" for the year. Id. § 3(d). The total cost allowance—or "cap"—is set each year by the Director of OMB and may be zero, positive, or negative. Id. An agency's total incremental cost is derived by summing the costs of each new regulations adopted in the relevant year, less any cost savings achieved through the repeal of existing regulations. Id.

         OMB issued interim guidance regarding the meaning and implementation of the Executive Order on February 2, 2017, and it issued final guidance on April 5, 2017. See OMB, Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 (2017) ("Interim Guidance"); OMB, Guidance Implementing Executive Order 13,771 (2017) ("Final Guidance"). In the Final Guidance, OMB explained that the Executive Order applies only to "significant regulatory action[s]" and "significant guidance document[s]," Final Guidance, Q & A 2, which, in turn, means that the action is likely to "[h]ave an annual effect on the economy of $ 100 million or more" or that it meets other, specified criteria, Exec. Order No. 12,866 § 3(f), 3 C.F.R. 638 (1994). Deregulatory actions, in contrast, need not qualify as "significant" to factor into the required calculus. Final Guidance, Q & A 4.

         Importantly, the OMB Guidance further explains, the Executive Order 13,771 considers only compliance costs borne by regulated parties; it does not consider the public benefit of the existing or proposed rule. See Final Guidance, Q & A 21, 32; Interim Guidance at 4. Agencies must determine the present value of the costs of the regulatory or the savings of 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. Agencies may, however, "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.

         The Executive Order recognizes that agencies face various statutory obligations, and it does not—and could not—purport to override those obligations. Rather, agencies are directed to implement the Executive Order in a manner "consistent with applicable law" and are cautioned 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. 13,771 § 5, 82 Fed.Reg. 9,339 (Jan. 30, 2017). In this vein, recognizing that certain federal statutes prohibit agencies from considering costs in determining to take a significant regulatory action, the OMB Guidance explains that the Executive Order does not "change the agency's obligations under [such a] statute." Final Guidance, Q & A 18. Nevertheless, agencies implementing these statutory obligations are "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. If an agency faces an imminent statutory (or judicial) deadline for taking a regulatory action, the Executive Order "does not prevent" the agency from complying with that deadline, even if it cannot first satisfy the Executive Order's mandates. Id., Q & A 33. The agency must, however, "offset [the] regulatory action[] as soon as practicable thereafter." Id. Finally, although the Executive Order creates incentives for agencies to

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rescind existing regulations—and, when an agency is assigned a negative annual cap, requires it—the OMB Guidance prohibits agencies from relying on the Executive Order "as the basis or rationale, in whole or in part, for" taking a deregulatory action. See Final Guidance, Q & A 37 (emphasis added).

         B. Procedural Background

         Plaintiffs Public Citizen, Inc. ("Public Citizen"), the Natural Resources Defense Council, Inc. ("NRDC"), and the Communication Workers of America, AFL-CIO ("CWA") brought this action against the President, the Director of OMB, the heads of thirteen federal agencies, and the United States in February 2017. Dkt. 1. They challenged Executive Order 13,771 as ultra vires and violative of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., and the Constitution, Dkt. 1 at 5-6, 43-46 (Compl. ¶¶ 9, 121-47), and they challenged the OMB Guidance on similar grounds, id. at 46-48 (Compl. ¶¶ 148-61).

         Defendants moved to dismiss for lack of standing and for failure to state a claim. Dkt. 9. Plaintiffs amended their complaint as of right, adding additional allegations to bolster their claim that they had standing to sue. See Dkt. 14 (First Am. Compl.). Defendants then renewed their motion to dismiss, Dkt. 15, and Plaintiffs cross-moved for summary judgment, Dkt. 16. The Court concluded that Plaintiffs had not plausibly alleged either associational or organizational standing and therefore granted Defendants' motion to dismiss and denied Plaintiffs' motion for summary judgment. Public Citizen I, 297 F.Supp.3d at 40. Most notably, Plaintiffs argued that the Executive Order had delayed finalization of various environmental, public health, and public safety regulations and that this delay substantially increased the risk that several of their members would face a substantial probability of future harm. Id. at 28. That increased-risk-of-harm theory of standing is not easily satisfied, and the Court held that Plaintiffs had failed to allege facts or to adduce evidence sufficient to clear that hurdle. Id. at 29. The Court also rejected an array of additional theories of standing, including Plaintiffs' contention that one or more of the plaintiff-associations had organizational standing. Id. at 40.

         Plaintiffs then moved for leave to file a second amended complaint. Dkt. 64. Defendants did not oppose that motion, Dkt. 65, and the Court granted Plaintiffs leave to amend, Minute Order (Apr. 20, 2018). Defendants, once again, moved to dismiss for lack of standing, Dkt. 70, and Plaintiffs cross-moved for partial summary judgment on standing, Dkt. 71. This time, the Court concluded that Plaintiffs had met their threshold burden of plausibly alleging that they had standing to sue—based on additional allegations and their reliance on a new theory of standing—and, accordingly, denied Defendants' motion to dismiss. Public Citizen II, 361 F.Supp.3d at 83. In particular, the Court was convinced that Plaintiffs had plausibly alleged that (1) two members of Public Citizen—Amanda Fleming and Terri Weissman—wanted to purchase cars equipped with vehicle-to-vehicle —or "V2V"—accident avoidance communications systems; (2) the effectiveness of that technology is dependent on the number of vehicles equipped with interoperable V2V technology; (3) the widespread availability and deployment of the V2V technology is dependent on finalization of a proposed ...

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