Pub. Citizen, Inc. v. Trump

• Decision Date: 20 December 2019
• Docket Number: Civil Action No. 17-253 (RDM)
• Citation: 435 F.Supp.3d 144
• Parties: PUBLIC CITIZEN, INC., et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants.
• Court: U.S. District Court — District of Columbia

435 F.Supp.3d 144

PUBLIC CITIZEN, INC., et al., Plaintiffs,

v.Donald J. TRUMP, et al., Defendants.

Civil Action No. 17-253 (RDM)

United States District Court, District of Columbia.

Signed December 20, 2019

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

MEMORANDUM OPINION

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 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 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 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...