State of California v. Donald J. Trump

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

STATE OF CALIFORNIA, et al.,

Plaintiffs,

v. Civil Action No. 19-960 (RDM)

DONALD TRUMP, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs—the states of California, Oregon, and Minnesota—challenge Executive Order

13,771 and the implementing Guidance issued by the Office of Management and Budget

(“OMB”) as violative of the separation of powers, the Constitution’s Take Care Clause, and the

Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. California and Oregon first

moved to intervene in a parallel case also before the Court, Public Citizen, Inc. v. Trump, No. 17-

253 (filed Feb. 8, 2017), but the Court denied their motion because of doubts as to whether the

plaintiffs who brought that case had Article III standing. California, Oregon, and Minnesota then

filed this action. Dkt. 1 (Compl.). To a considerable degree, this case echoes the issues and

arguments that this Court considered in Public Citizen. See Pub. Citizen, Inc. v. Trump (“Public

Citizen I”), 297 F. Supp. 3d 6, 34 (D.D.C. 2018); Pub. Citizen, Inc. v. Trump (“Public Citizen

II”), 361 F. Supp. 3d 60 (D.D.C. 2019); Pub. Citizen, Inc. v. Trump (“Public Citizen III”), No.

17-253, 2019 WL 7037579 (D.D.C. Dec. 20, 2019). In both this case and in Public Citizen, the

plaintiffs challenged the Executive Order and argued that it had delayed or derailed the

promulgation of desired rules. In both cases, the defendants denied that the Executive Order was

to blame—at least with respect to the specific regulatory actions or inactions the plaintiffs
identified. And, in both cases, the plaintiffs offered declarations describing the actual or

imminent injuries they alleged, and the defendants offered declarations denying that the

Executive Order caused the delays or precipitated the regulatory actions.

Despite these similarities, this case raises issues of its own. First, unlike the

organizations that sued in Public Citizen, the plaintiffs in this case are sovereign states. That

makes a difference, according to Plaintiffs, because states are entitled to “special solicitude” in

evaluating their Article III standing to sue. Second, unlike the plaintiffs in Public Citizen, the

plaintiffs in this case assert procedural injuries. That matters, according to Plaintiffs, because the

imminence and redressability requirements for Article III standing are relaxed when a plaintiff

asserts a procedural injury. Third, unlike the plaintiffs in Public Citizen, the plaintiffs in this

case assert that they have been, or will likely be, injured by the repeal of two rules not at issue in

Public Citizen—revocation of the Federal Highway Administration’s Greenhouse Gas

Performance Measure and the rollback of the Head Start minimum service duration requirement.

The first of these actions harms the states, according to Plaintiffs, because they bear “real and

significant costs as a result of greenhouse gas-induced climate change,” Dkt. 17 at 37, and the

second harms the states because they must fill the service gap left by the repeal, id. at 46.

Plaintiffs contend that those injuries, along with the injuries resulting from the delays in

finalizing two additional rules that were at issue in Public Citizen, were caused by the Executive

Order and could be redressed by its invalidation.

Plaintiffs are correct in several respects: this case is not on all fours with Public Citizen;

states are entitled to special solitude in evaluating Article III standing; the imminence and

redressability requirements are relaxed in cases asserting procedural injuries; and this case

involves two rules not at issue in Public Citizen. None of that is determinative, however,

2
because—as in Public Citizen—the ultimate question here is whether Plaintiffs have carried their

burden of demonstrating that the Executive Order has caused, or is likely to cause, a material

delay or the repeal of any of the specific rules at issue. As in Public Citizen, the Court concludes

that Plaintiffs here have failed to carry this essential burden. The Court will, accordingly, DENY

Plaintiffs’ motion for partial summary judgment, will GRANT Defendants’ motion for summary

judgment, and will DISMISS the case for lack of Article III standing.

I. BACKGROUND

A. Factual Background

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; Public Citizen III, 2019 WL 7037579, at *2–3, 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 of 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,” it 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 “annual

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cap”—is set each year for each agency by the Director of OMB and may be zero, positive, or

negative. Id.

OMB issued interim guidance on the meaning and implementation of the Executive

Order on February 2, 2017, and it issued final guidance on April 5, 2017. See Office of Mgmt. &

Budget, Exec. Office of the President, Interim Guidance Implementing Section 2 of the

Executive Order of January 30, 2017, Titled “Reducing Regulation and Controlling Regulatory

Costs” (2017) (“Interim Guidance”); Office of Mgmt. & Budget, Exec. Office of the President,

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 are

“action[s]” or “guidance” that are likely to “[h]ave an annual effect on the economy of $ 100

million or more” or meets other, specified criteria, Exec. Order 12,866 § 3(f), 58 Fed. Reg.

51,735 (Sept. 30, 1993). Deregulatory actions, in contrast, need not qualify as “significant” to

factor into this calculus. Final Guidance, Q & A 4.

The OMB Guidance further explains that the Executive Order 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. In other words, a

regulation that costs $10 to implement and that saves $100, is treated as a $10 loss and not a $90

gain. Applying this methodology, agencies must determine the present value of the costs of the

regulatory action or the avoided costs of the 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.

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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, the Executive Order

requires agencies to implement it in a manner “consistent with applicable law” and cautions that

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 13,771 § 5. Recognizing

that certain federal statutes prohibit agencies from considering costs in deciding whether 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, it “generally . . . require[s]” agencies implementing these statutory obligations “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 requiring it to take 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, 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, even though it puts pressure on agencies to take such actions. See id., Q &

A 37.

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B. Procedural Background

On June 4, 2018, California and Oregon moved to intervene as plaintiffs in Public

Citizen. See Public Citizen, Inc. v. Trump, No. 19-253, ECF No. 73; see also Public Citizen II,

361 F. Supp. 3d at 93. Because the Public Citizen plaintiffs’ standing remained in doubt, and

because a new party may not intervene in an action in which the original plaintiffs lack standing,

the Court denied the motion to intervene. Public Citizen II, 361 F. Supp. 3d at 93. On April 4,

2019, the states of California, Oregon, and Minnesota filed the present action against Donald J.

Trump, in his official capacity as President of the United States, and the heads of seven agencies:

the Office of Management and Budget (“OMB”), the Department of Energy (“DOE”), the

Department of Transportation (“DOT”), the Department of Labor (“DOL”),1 the Department of

Interior (“DOI”), the Environmental Protection Agency (“EPA”), and the Department of Health

and Human Services (“HHS”). Dkt. 1.

The complaint alleges that Plaintiffs have suffered, or are likely to suffer, various injuries

due to the Executive Order’s effects on six different rulemakings: (1) the EPA’s reconsideration

of rules governing emissions from solid waste landfills; (2) the Federal Highway

Administration’s (“FHWA”) repeal of its Greenhouse Gas Performance Measure; (3) the Bureau

of Land Management’s (“BLM”) delay of enforcement of a rule requiring the reduction of waste

from oil and gas production on federal leases; (4) the DOE’s delay in issuing new energy

efficiency standards for residential cooking products; (5) HHS’s relaxation of an earlier rule

setting a strict minimum service duration requirement for the Head Start program; and (6) the

1
Defendants note that Plaintiffs have not “allege[d] any injury connected with any action of the
Department of Labor” and argue that “the case should accordingly be dismissed with regard to
that Defendant.” Dkt. 15 at 12 n.1. The Court agrees and can therefore dismiss Plaintiffs’
claims against the Secretary of Labor without further analysis.
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National Highway Traffic Safety Administration’s (“NHTSA”) delay in finalizing a proposed

rule requiring the implementation of vehicle-to-vehicle (“V2V”) technology that would prevent

vehicular crashes. Id.

Defendants move to dismiss for lack of standing under Federal Rule of Civil Procedure

12(b)(1) or, in the alternative, for summary judgment on standing, Dkt. 14, and Plaintiffs cross-

move for partial summary judgment on standing, Dkt. 17. Plaintiffs have narrowed their

standing argument to focus on four regulatory or deregulatory actions: (1) the FHWA repeal of

the Greenhouse Gas Performance Measure; (2) the DOE’s delay in issuing the new energy

efficiency standards for residential cooking products; (3) HHS’s relaxation of the Head Start

minimum service duration requirement, and (4) the NHTSA’s delay in finalizing the V2V rule.

Defendants, in turn, maintain—with no objection from Plaintiffs—that the parties’ respective

motions for summary judgment can, and must, be resolved based on these four actions.

II. LEGAL STANDARD

A “plaintiff bears the burden of . . . establishing the elements of standing,” and each

element “‘must be supported in the same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence required at the successive stages of

the litigation.’” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (citation omitted). At the

motion to dismiss “stage, general factual allegations of injury resulting from the defendant’s

conduct” will often suffice. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Thus, if the

defendant raises a “facial” challenge to the plaintiff’s standing, the court need consider only “the

legal sufficiency of the jurisdictional allegations contained in the complaint.” Hale v. United

States, No. 13-1390, 2015 WL 7760161, at *3 (D.D.C. Dec. 2, 2015). But “[w]here a motion to

dismiss a complaint presents a dispute over the factual basis of the court’s subject matter

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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). Instead, the court

“must go beyond the pleadings and resolve any disputed issue of fact . . . necessary to a rule

upon the motion to dismiss.” Id. (quoting Phoenix Consulting v. Republic of Angola, 216 F.3d

36, 40 (D.C. Cir. 2000)); see also Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.

1992). Even under that mode of analysis, however, “the allegations of the complaint should be

construed favorably to the pleader.” Lemma v. Hispanic Nat’l Bar Ass’n, No. 17-2551, 2019 WL

4043983, at *2 (D.D.C. Aug. 27, 2019) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

When a plaintiff moves for summary judgment on the issue of standing, it may not rest

on the mere allegations of the complaint but must, instead, “cit[e] to particular parts of materials

in the record,” Fed. R. Civ. P. 56(c), that demonstrate that there is no genuine dispute of material

fact as to the existence of “a concrete and particularized ‘injury in fact’ that is fairly traceable to

the challenged action of the defendant and likely to be redressed by a favorable judicial

decision,” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125 (2014)

(citation omitted). Likewise, when a defendant moves for summary judgment on standing, it

must demonstrate “that there is no genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a),

and that the plaintiff cannot establish the required elements of Article III standing based on the

undisputed evidence, see Lujan, 504 U.S. at 561. “The evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59

(1970)).

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 III. ANALYSIS

“The ‘irreducible constitutional minimum of standing contains three elements’: ‘(1)

injury-in-fact, (2) causation, and (3) redressability.’” Am. Freedom Law Ctr. v. Obama, 821 F.3d

44, 48 (D.C. Cir. 2016) (quoting Lujan, 504 U.S. at 560). First, under the injury-in-fact element,

the injury must be “concrete and particularized” and “actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560. Second, under the causation element, 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. at 560–61. Courts must therefore determine “whether it is

substantially probable that the challenged acts of the defendant . . . will cause the particularized

injury of the plaintiff.” Fla. Audubon Soc. v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)

(citations omitted). Finally, under the redressability element, it must be “likely, as opposed to

merely speculative, that the injury will be redressed by a favorable decision” of the court. Lujan,

504 U.S. at 561. A plaintiff bears the burden of demonstrating its standing at every stage of the

litigation, but that burden evolves with the progressively demanding standards at the motion to

dismiss and summary judgment stages. See id.; see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016).

According to Plaintiffs, the burden of establishing standing is relaxed in this case for two

reasons. First, Plaintiffs are not private parties but, rather, states suing in their sovereign

capacities. Dkt. 17 at 17–19. Second, the injury that they assert is a procedural one—the agency

defendants have engaged in, or delayed engaging in, regulatory activity “potentially affecting the

States’ interests without adhering to lawful rulemaking requirements.” Id. at 19. As explained in

section A below, Plaintiffs are correct that these factors can, at least at times, relax some of the

elements required to establish Article III standing. But, as explained in section B, even with the

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benefit of those less demanding requirements, Plaintiffs have failed to carry their burden of

demonstrating that they have standing to sue in this case.

A. Relaxed Requirements for Establishing Article III Standing

1. “Special Solitude”

To set the stage, Plaintiffs invoke the Supreme Court’s decision in Massachusetts v. EPA,

549 U.S. 497, 520 (2007), and a handful of out-of-circuit precedents and argue that states are

entitled to “special solicitude” for purposes of establishing Article III standing, at least when

they sue in their sovereign capacity.2 In Massachusetts v. EPA, a group of states (and other

plaintiffs) sued the EPA, alleging that the agency had statutory authority to regulate greenhouse

gases, that the EPA’s stated reasons for declining to do so were inconsistent with the Clean Air

Act, and that its failure to regulate contributed to increased global warming and harm to the

environment. Id. at 504. Before reaching the merits, however, the Supreme Court was required

to decide whether the states had Article III standing to sue.

The principle hurdle that the states faced was the well-established principle that Article

III standing demands a “particularized” harm—a generalized harm “to humanity at large” will

not suffice. Id. at 515. As the Supreme Court explained, Article III does not empower federal

courts “to entertain citizen suits to vindicate the public’s non-concrete interest in the proper

administration of justice.” Id. at 516–17 (quoting Lujan, 504 U.S. at 580). But, even though

2
“A State’s standing depends on the capacity in which it initiates a lawsuit.” Gov’t of
Manitoba v. Bernhardt, 923 F.3d 173, 178 (D.C. Cir. 2019) (citing Erwin Chemerinsky, Federal
Jurisdiction 121 (7th ed. 2016)). States may either “sue to redress [their] own injuries” through a
direct-injury lawsuit or they may “sue in a representative capacity to vindicate [their] citizens’
interests” by bringing a parens patriae lawsuit. Id. Traditionally, however, states do not have
“standing as parens patriae to bring an action against the federal government.” Id. (citing
Massachusetts v. Mellon, 262 U.S. 447, 485–86 (1923)). Presumably for this reason, Plaintiffs
do not assert parens patriae standing for present purposes.
10
global warming is an issue of near-universal concern, the breadth of that concern did not deprive

the courts of jurisdiction in Massachusetts v. EPA because “States are not normal litigants for the

purposes of invoking federal jurisdiction.” Id. at 518. Quoting the words of Justice Holmes, the

Supreme Court explained that, when a state sues in its sovereign capacity, it “‘has an interest

independent of and beyond the titles of its citizens, in all the earth and air within its domain.’”

Id. at 518–19 (quoting Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907)). “‘It has the last

word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe

pure air.’” Id. (quoting same). That interest in protecting its “sovereign territory,” along with its

interest in protecting its own coastal property from the encroachment of rising sea levels, was

enough to establish that Massachusetts had a particularized injury in fact. Id. at 519–23. “Given

[the] stake [that Massachusetts had] in protecting its quasi-sovereign interests,” and given the

right that Congress conferred on the states and others “to challenge the rejection of [an EPA]

rulemaking petition as arbitrary and capricious,” the Court concluded that Massachusetts was

“entitled to special solicitude in [the Court’s] standing analysis.” Id. at 520 (emphasis added);

see also Gov’t of Manitoba, 923 F.3d at 182 (quoting Massachusetts v. EPA, 549 U.S. at 519–

20).

Lower courts have lamented the “lack of guidance on how [they] are to apply the special

solicitude doctrine to standing questions,” Wyoming v. U.S. Dep’t of Interior, 674 F.3d 1220,

1238 (10th Cir. 2012), but some have read Massachusetts v. EPA to hold that a state might at

times have standing where a non-state plaintiff would not. In Texas v. United States, most

notably, the Fifth Circuit concluded that states that challenged the Deferred Action for Parents of

Americans and Lawful Permanent Residents program (“DAPA”) had Article III standing

because (1) DAPA treated participants as “lawfully present” in the United States; (2) that status

11
“allow[ed] otherwise ineligible aliens to become eligible for state-subsidized driver’s licenses;”

and (3) the cost of subsidizing those licenses imposed a concrete injury on the states. 809 F.3d

134, 149–50, 155 (5th Cir. 2015), aff’d by an equally divided court, United States v. Texas, 136

S. Ct. 2271 (2016) (per curiam). Although the Fifth Circuit recognized that the harm that the

states asserted was indirect—DAPA did not regulate the states but, rather, deferred actions

against a group of immigrants—the court stressed that “the states . . . ‘are not normal litigants for

the purposes of invoking federal jurisdiction.’” Id. at 152 (quoting Massachusetts v. EPA, 549

U.S. at 518). That unique status mattered, according to the Fifth Circuit, for two reasons. First,

unlike “normal litigants,” the states have the power and obligation to legislate, and DAPA

imposed “substantial pressure” on the states “to change their laws” relating to the issuance of

driver’s licenses. Id. at 153. Second, unlike “normal litigants,” the states “surrendered some of

their control over immigration to the federal government” when they joined the Union. Id. at

155. Although it cautioned that its decision was sui generis, the Fifth Circuit concluded that

these factors were sufficient in that case to invoke the “special solicitude” doctrine recognized in

Massachusetts v. EPA and to sustain their standing to sue. Id. at 154–55.

As Plaintiffs acknowledge, the “special solitude” that the federal courts owe to the states

does not mean that states that elect to sue in federal court are relieved of their burden of

establishing each of the traditional elements of Article III standing. Dkt. 17 at 18. What it does

mean, in Plaintiffs’ view, is that “state plaintiffs” must receive “the benefit of any doubt” with

respect to whether those elements are satisfied. Id. But even that more restrained view

overstates Massachusetts v. EPA’s holding. The Supreme Court did not alter the standard of

proof applicable to state-plaintiffs; instead, it simply recognized that the requirement that a

plaintiff establish a particularized harm, and not merely a “general interest . . . common to all

12
members of the public,” Massachusetts v. EPA, 415 F.3d 50, 59 (D.C. Cir. 2005) (Sentelle, J.,

concurring) (citations omitted), does not always apply to a sovereign state in the same way it

applies to other litigants. See Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d

466, 476–77 (D.C. Cir. 2009) (“Massachusetts stands only for the limited proposition that, where

a harm is widely shared, a sovereign, suing in its individual interest, has standing to sue where

that sovereign’s individual interests are harmed, wholly apart from the alleged general harm.”).

States are unique in this respect because they have a sovereign interest in “‘all the earth and air

within [their] domain’” and because they “surrender[ed] certain sovereign prerogatives” to the

national government when they joined the Union. Massachusetts v. EPA, 549 U.S. at 518–19

(citation omitted). In other words, the demands of Article III do not change depending on

whether a state is a plaintiff. Rather, it is the unique and sweeping interests of the states, and the

fact that a state—and only a state—may assert “quasi-sovereign interests,” that affects the nature

of the Court’s Article III analysis.

2. Procedural Injuries

Plaintiffs also invoke the less demanding standards applicable in procedural injury cases.

In a procedural injury case, the plaintiff must establish that “(1) the government violated its

procedural rights designed to protect a threatened, concrete interest, and (2) the violation resulted

in injury to that concrete, particularized interest.” New Hampshire v. Holder, 293 F.R.D. 1, 6

(D.D.C. 2013) (three-judge court) (citing Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152,

1157 (D.C. Cir. 2005)). “[T]he procedural standing doctrine ‘does not—and cannot—eliminate

any of the “irreducible” elements of standing[.]’” Id. (quoting Fla. Audubon Soc’y, 94 F.3d at

664). It does, however, “relax[] the immediacy and redressability requirements.” Id.; see also

Massachusetts, 549 U.S. at 517–18 (quoting Lujan, 504 U.S. at 572 n.7) (internal citation

13
omitted). As a result, in a procedural injury case, the “litigant has standing if there is some

possibility that the requested relief will prompt the injury-causing party to reconsider the

decision that allegedly harmed the litigant.” Id.; see also Sugar Cane Growers Coop. of Fla. v.

Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002) (requiring that plaintiffs alleging procedural

injuries “show that the procedural step was connected to the substantive result”). The injury-in-

fact and causation requirements, in contrast, are not relaxed and apply just as they would in any

other case. Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005).

In Lujan, the Supreme Court provided the classic example of standing based on a

procedural injury, explaining that “one living adjacent to the site for proposed construction of a

federally licensed dam has standing to challenge the licensing agency’s failure to prepare an

environmental impact statement, even though he cannot establish with any certainty that the

statement will cause the license to be withheld or altered, and even though the dam will not be

completed for many years.” 504 U.S. at 572 n.7. The concrete interest in the Lujan example is

the plaintiff’s interest in not living next to a dam that would negatively affect the environment.

Other examples of concrete interests include Delaware’s interest in “the preventing of the

construction of [a liquid natural gas terminal] project,” Del. Dep’t of Nat. Res. & Envtl. Control

v. FERC, 558 F.3d 575, 579 (D.C. Cir. 2009), a state’s interest in “approval of an Indian gaming

proposal,” id. (citing Texas v. United States, 497 F.3d 491 (5th Cir. 2007)), and farmers’ interest

in high sugar prices, Sugar Cane Growers, 289 F.3d at 92–93.

In contrast, “deprivation of a procedural right without some concrete interest that is

affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III

standing.” Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). There is no doubt, for

example, that a plaintiff that is able to establish that an agency failed to comply with the notice

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and comment procedures of the APA would, nonetheless, have no recourse in an Article III court

absent a showing that it suffered or will suffer a concrete injury as a result of policy produced

through the allegedly flawed process. See Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 239,

244–46 (D.C. Cir. 2015). In the procedural rights context, this entails a two-step analysis. First,

the plaintiff must establish a causal connection between the omitted procedural step and “some

substantive government decision that may have been wrongly decided because of the lack of”

that procedural step. Ctr. for Biological Diversity, 861 F.3d at 184 (quoting Fla. Audubon Soc’y,

94 F.3d at 668). Second, the plaintiff must establish a connection between that substantive

decision and his “particularized injury.” Id. (quoting same). “Importantly, with respect to the

first link, the party . . . need not show that but for the alleged procedural deficiency the agency

would have reached a different substantive result” but just that “‘the procedural step was

connected to the substantive result.’” Id. (quoting Sugar Cane Growers, 289 F.3d at 94).

* * *

In summary, the special-solitude and procedural-injury doctrines do not—and cannot—

alter the “irreducible constitutional minimum of standing” reflected in the elements of injury in

fact, causation, and redressability. Lujan, 504 U.S. at 560. Rather, the special-solitude doctrine

merely recognizes the sweeping interests that states, as separate sovereigns, have over their

domains, and the procedural-injury doctrine merely relaxes the imminence and redressability

elements of Article III standing, while leaving the remaining elements unaffected.

B. Application

Plaintiffs identify four rulemakings that they contend were either delayed or undertaken

as a result of the Executive Order, and they contend that these agency inactions or actions will or

will likely cause them various harms, ranging from threatening their coastlines with rising tides

15
(as in Massachusetts v. EPA) to fiscal harms resulting from avoidable car crashes or from less

federal support for early education. At times, Plaintiffs suggest that their standing is premised on

“a concrete interest in the integrity of the administrative process.” Dkt. 23 at 19; Dkt. 17 at 9

(referring to the “States’ concrete interest in the rule of administrative law and in agencies’

abilities to fulfill their statutory mandates”). But, presumably recognizing that federal

jurisdiction requires more than “a generally available grievance about government,” Lujan, 504

U.S. at 573, Plaintiffs also argue that the procedural violation they allege—interference with the

proper application of the APA—is connected to “substantive rules” leading to “particularized

injuries to the States.” Compare Dkt. 17 at 22–23 with id. at 24–47.

As explained below, the Court is unconvinced that Plaintiffs have met their burden of

establishing standing, even treating their claims with the “special solitude” to which states are

entitled and even applying the relaxed immediacy and redressability requirements appropriate in

procedural injury cases. Ultimately, with respect to each of the four regulatory inactions or

actions at issue, Plaintiffs cannot show that any material delay in action or any agency action was

caused by the Executive Order or the OMB Guidance. Although the plaintiff in a procedural-

injury case need not show that the agency would have reached a different decision in the absence

of the alleged procedural violation, the plaintiff must establish some causal connection between

the omitted procedural step and the substantive government decision at issue. Here, Defendants

have submitted competent evidence demonstrating that neither the two-for-one rule nor the

annual cap was “connected” to the agency inactions and actions Plaintiffs challenge.3

3
As the Court explained in Public Citizen III, “it is certainly plausible, and perhaps likely, that
the Executive Order and the OMB guidance have [caused], delayed, or derailed at least some
regulatory actions,” but “it is hard to say with the requisite degree of confidence which actions
those are” because (1) “neither the Executive Order nor the OMB Guidance provides a
mechanism for notifying the public whether and when a proposed . . . regulatory action [has
16
 The Court will consider each of the four rulemakings in turn.

1. FHWA’s Greenhouse Gas Performance Measure

On January 18, 2017, the FHWA, an agency within the Department of Transportation,

issued a final rule imposing a Greenhouse Gas (“GHG”) Performance Measure. See National

Performance Management Measure; Assessing Performance of the National Highway System,

Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality

Improvement Program, 82 Fed. Reg. 5,970 (Jan. 18, 2017) (codified at 23 C.F.R. pt. 490).

Under that rule, state transportation departments and metropolitan planning organizations were

required to track on-road greenhouse gas emissions and to establish two- and four- year

emissions performance goals. Id. at 5,996–97, 6,000–02; Dkt. 14-4 at 2 (Everett Decl. ¶ 5)

(GHG Performance Measure required State Departments of Transportation and Metropolitan

Planning Organizations to measure, and to set targets for, changes in total annual tons of CO2

emissions from all on-road mobile sources). The purpose of the rule was to “drive decisions that

contribute to national GHG reduction goals.” 82 Fed. Reg. at 6,001.

Nine months later, and after issuance of the Executive Order, the FHWA issued a Notice

of Proposed Rulemaking (“NPRM”) proposing to repeal the GHG Performance Measure rule.

82 Fed. Reg. 46,427, 46,430 (Oct. 5, 2017) (to be codified at 23 C.F.R. pt. 490). The NPRM

explained that the Department of Transportation “commenced a review of existing and pending

regulations” pursuant to the Executive Order “to determine whether changes would be

occurred, been] delayed or abandoned due to the requirements of the Executive Order,” (2)
“agency decisions about whether and how quickly to move forward with regulatory initiatives
are often informed by a variety of considerations,” and (3) the Executive Order does not stand
alone but, rather, reflects the current Administration’s more general wariness of federal
regulation.” 2019 WL 7037579, at *1. Those hurdles, although real, cannot alter the essential
requirements for establishing Article III standing.
17
appropriate to eliminate duplicative regulations and [to] streamline regulatory processes. Id.

The Department “identified the GHG measure . . . as being potentially duplicative of existing

efforts in some States, and burdensome.” Id. For these reasons, and because the governing

statute, 23 U.S.C. § 150, did “not explicitly require a GHG measure,” the FHWA proposed

repeal of the GHG Performance Measure rule. Id. According to the NPRM, the proposed repeal

constituted a “deregulatory action” for purposes of the Executive Order, and elimination of the

GHG Performance Measure rule would result in approximately $11 million in cost-savings over

nine years. Id. at 46,431.

On May 31, 2018, after receiving public comments, the FHWA rescinded the GHG

Performance Measure. 83 Fed. Reg. 24,920 (May 31, 2018) (codified at 23 C.F.R. pt. 490). In

the final rule, the FHWA explained that its decision was based on “three primary factors:” (1) the

agency’s “[r]econsideration of the legal authority under which the GHG Performance Measure

rule was promulgated;” (2) “the cost of the GHG measure when considered in relation to the lack

of demonstrated benefits;” and (3) “the potential duplication between information produced by

the GHG measure and information produced by other initiatives related to measure CO2

emissions.” Id. at 24,922. With respect to the first factor, the FHWA acknowledged that it had

“discretion” to read the governing statute to authorize the GHG Performance Measure but,

nonetheless, characterized that interpretation as “strained.” Id. at 24,293. The better reading of

the statute, according to the 2018 final rule, excludes “environmental sustainability” from the

definition of “performance.” Id. With respect to the second factor, the agency noted that it was

“giving particular attention to opportunities to reduce burdens imposed by existing regulations”

and that it was guided, at least in part, by Executive Orders 13,777 and 13,783 (but, notably, not

Executive Order 13,771). After considering the costs and benefits of the GHG Performance

18
Measure rule, the FHWA concluded that, although the cost of the rule was low, “the speculative

and uncertain benefits” resulting from the rule were insufficient to justify its retention. Id. at

24,924. And, with respect to the final factor, the FHWA observed that “the recent executive

mandates to reduce regulatory costs and burdens mean[t]” that it was required to “consider

whether the information the measure would produce duplicates information produced by others.”

Id. at 24,925. The agency concluded, “[p]ursuant to the mandates of Executive Order 13,771,

Executive Order 13,777, and Executive Order 13,783, . . . that the data needed to support the

GHG measure [was] at least somewhat duplicative of the EPA and DOE data on CO2

emissions,” id. at 24,925–26, and that “repeal of the GHG performance measure will reduce the

existing duplication, [will] streamline the regulations, and [will] reduce the potential for the

confusion that can arise when multiple Federal and State entities impose different requirements

for categorizing and measuring CO2 emissions,” id. at 24,925.

In Plaintiffs’ view, the agency’s own explanation for why it rescinded the GHG

Performance Measure rule shows “that there is a ‘substantial likelihood’ that the [Executive]

Order caused the agency to repeal the Measure.” Dkt. 23 at 30 (quoting Competitive Enterprise

Inst. v. NHTSA, 901 F.2d 107, 113 (D.C. Cir. 1990)). Defendants, in turn, respond with a

declaration from the Executive Director of the FHWA attesting that “EO 13,771 did not cause

[the] FHWA to repeal the GHG Performance Measure,” and, despite Plaintiffs’ reading of the

administrative record, he also points to the text of the Federal Register notice as setting forth the

definitive statement of the reasons the agency acted. Dkt. 14-4 at 4–5 (Everett Decl. ¶ 8)

(“FWHA repealed the GHS Performance Measure for the reasons discussed at length in the

Federal Register notice announcing the repeal.”). In the FHWA Executive Director’s view, the

19
“FHWA’s final decision to repeal was based on . . . substantive policy considerations” and not

on the procedural requirements established by the Executive Order. Id.

To sort through this disagreement, the Court returns to the jurisdictional tests set forth in

Lujan, 504 U.S. at 560–61, and Florida Audubon Society, 94 F.2d at 664–65. Plaintiffs bear the

burden of showing that they have suffered an actual or imminent injury, caused by or fairly

traceable to the specific act or conduct that they challenge, that is redressable by the court.

Lujan, 504 U.S. at 560. Moreover, “[t]he mere violation of a procedural requirement”—here, the

FHWA’s alleged consideration of factors not contemplated by the APA—“does not permit any

and all persons to sue to enforce the [procedural] requirement.” Fla. Audubon Soc’y, 94 F.3d at

664. Thus, even under the relaxed procedural injury standard, Plaintiffs must show that the

FHWA’s consideration of the Executive Order may have led the agency to reach a decision that

it would not otherwise have reached and that the FHWA’s decision is likely to cause at least one

of them to suffer a particularized harm. Ctr. for Biological Diversity, 861 F.3d at 184. Plaintiffs

need not show that the FHWA’s compliance with the Executive Order was a but-for cause of its

repeal of the rule but simply that its reliance on the Executive Order was “connected to the

substantive result.” Id. (quoting Sugar Cane Growers, 289 F.3d at 94).

As an initial matter, the Court notes that it is far from clear that that Plaintiffs have

carried their burden of showing that the repeal of the rule has caused, or is likely to cause, them

any particularized harm. In Massachusetts v. EPA, the Supreme Court concluded that the

“special solicitude” afforded to states meant that it could accept receding coastlines and other

environmental damage as particularized harms caused by the EPA’s failure to exercise its

authority to regulate greenhouse gas emission from motor vehicles. 549 U.S. at 519–21

(“Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards

20
applicable to the ‘emission of any air pollutant from any class or classes of new motor vehicle

engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may

reasonably be anticipated to endanger public health or welfare.’” (quoting 42 U.S.C.

§ 7521(a)(1) (alteration in original)). Here, in contrast, the causal link between the challenged

action and the asserted harm is far more attenuated. The GHG Performance Measure did not

require states to take action in curbing harmful emissions. Rather, it simply required them to

collect data (some of which was already collected through other processes), see 82 Fed. Reg. at

5,998 (“limit[ing] the measure to on-road CO2 emissions), and set emissions targets (which did

not have to be lower than the status quo), see 82 Fed. Reg. at 6,001 (“State [Departments of

Transportation] and [Metropolitan Planning Organizations] both have substantial flexibility in

choosing targets. . . . [T]argets are generally established based both on policy aspirations and on

analysis indicating what is believed to be attainable.”); see also id. at 5,989. These are not

insignificant steps, but they bear a more remote connection to climate change than rules that

affirmatively regulate emissions. Given the more tenuous causal chain present in this case,

Massachusetts v. EPA is not controlling, and Plaintiffs’ assertion of a causal connection from the

Executive Order to the 2018 final rule to a reduction in available data to reduced regulation or

other actions to limit emissions to climate change to injury to the states may well be a stretch too

far.

For present purposes, however, the Court need not reach that second link in the causal

chain because Plaintiffs fail to establish the first link—that is, they have not shown that either the

two-for-one rule or the annual cap provision were “connected to” the FHWA’s decision to

rescind the GHG Performance Measure rule. The relevant question is not whether the Executive

Order prompted the FHWA to review its existing rules to look for duplication or unnecessary

21
burdens or whether the agency acted in a manner consistent with the Executive Order’s goal of

reducing regulation. The key inquiry, instead, is whether the particular aspects of the Executive

Order that Plaintiffs challenge played a role in the agency’s process or decision. In other words,

the Court must consider whether either the two-for-one rule or the annual cap “was connected

to” the agency’s decision to repeal the rule. Id. (quoting Sugar Cane Growers, 289 F.3d at 94).

Accepting the truth of the relevant Federal Register notices and the Executive Director’s

declaration, they were not. To be sure, the FHWA candidly acknowledged that, pursuant to the

Executive Order, it commenced a review of its existing rules for duplication. 82 Fed. Reg. at

46,430. But Plaintiffs do not challenge the lawfulness of the Executive Order to the extent it

merely requires or induces agencies “to review their regulations to identify potentially outdated

regulations” or to “‘consider’ or analyze the economic impacts of proposed regulations.” Dkt. 1

at 2 (Compl. ¶ 3). To the contrary, they acknowledge that “[p]ast Executive Orders have

required” the same types of reviews and considerations and argue that what is “distinct” about

Executive Order 13,771 is that it does more than compel or induce agencies to take a hard look

their regulations. It precludes agencies from proposing or adopting rules that they would

otherwise support, unless they have repealed at least two regulations—outdated or not—and

have accumulated sufficient regulatory savings to offset the cost of a new regulation. Id. Those

operative provisions are given force, moreover, through the President’s authorization for “OMB

to block agency rulemakings not in compliance with the Order’s mandates.” Id. It is that feature

of the Executive Order that Plaintiffs challenge—its requirement that agencies repeal or decline

to adopt rules that they would otherwise leave in place or adopt because the President has

directed that they do so, and not based on their best view of the legal and policy considerations

that typically govern their actions. The problem Plaintiffs face is that they have failed to

22
establish a connection between this operative feature of the Executive Order—that is, between

the aspect of the Executive Order that they challenge—and the FHWA’s decision to repeal the

GHG Performance Measure rule.

To be sure, the final rule repealing the GHG Performance Measure rule does refer to the

Executive Order indirectly in a couple of places and directly in one. First, in discussing the cost

of the rule in relation to its asserted lack of demonstrated benefit, the FHWA asserted that it was

guided by Executive Orders 13,777 and 13,783, both of which cross-reference Executive Order

13,771. Among other things, Executive Order 13,777 requires agency regulatory task forces to

“make recommendations to the agency head regarding the repeal, replacement, or modification”

of existing regulations that “are outdated, unnecessary, or ineffective” or that “impose costs that

exceed benefits.” Exec. Order 13,777, Enforcing the Regulatory Reform Agenda, 82 Fed. Reg.

12,285, 12,286 (Feb. 24, 2017). Likewise, although the focus is more limited, Executive Order

13,783 directs agencies “immediately [to] review existing regulations that potentially burden the

development or use of domestically produced energy resources” and to “rescind those that

unduly burden the development of domestic energy resources beyond the degree necessary to

protect the public interest or otherwise to comply with law.” Exec. Order 13,783, Promoting

Energy Independence and Economic Growth, 82 Fed. Reg. 16,093 (Mar. 28, 2017). The fact that

both of these Executive Orders cross-reference Executive Order 13,771 adds little because the

core provisions of both Executive Orders speak directly to the cost-benefit analysis that the

FHWA undertook. There is certainly no basis to conclude that these cross-references show that

the FHWA final rule was intended to implement the two-for-one or annual cap provisions of

Executive Order 13,771.

23
 With respect to the final factor that the FHWA proffered to explain its repeal of the GHG

Performance Measure rule—the potential for duplication in the collection of CO2 data—the

agency pointed to “recent executive mandates to reduce regulatory costs and burdens” and, more

explicitly, to “the mandates of Executive Order 13,771, Executive Order 13,777, and Executive

Order 13,783.” 83 Fed. Reg. at 24,925–96. Nothing in the final rule, however, suggests that the

“mandates” with which the rule was concerned were those that Plaintiffs challenge here. To the

contrary, the relevant discussion focuses on the policy goal of “reduc[ing] . . . existing

duplication, streamlin[ing] the regulations, and reduc[ing] the potential for the confusion that can

arise when multiple Federal and State entities impose different requirements for categorizing and

measuring CO2 emissions.” Id. at 24,926. Although repealing the GHG Performance Measure

rule was undoubtedly consistent with the goal of Executive Order 13,771 to eliminate “at least

two prior regulations” for every new regulation an agency promulgates, 82 Fed. Reg. at 9,339,

there is no evidence that the Executive Order, which was just one of three referenced in this

portion of the final rule, caused the FHWA to act. The evidence that does exist—in the forms of

the reasons for repeal identified in the final rule and the Executive Director’s declaration—

moreover, supports the conclusion that “EO 13,771 did not cause FHWA to repeal the GHG

Performance Measure” and that, instead, the “FHWA’s final decision to repeal was based on the

substantive policy considerations” identified in the final rule. Dkt. 14-4 at 4 (Everett Decl. ¶ 8).

Plaintiffs find the proffered explanation implausible. In addition to references to

Executive Order 13,771 in the regulatory history, they assert that the “bases for the repeal” set

forth in the Federal Register “are groundless.” Dkt. 23 at 28 (emphasis in original). They note,

for example, that it was passing strange for the FHWA to assert, in the same breath, that it had

discretion to interpret the governing statute to allow for issuance of the GHG Performance

24
Measure rule and that it was abandoning the rule because it was not based on the best reading of

the statute. Id. Plaintiffs are, likewise, unimpressed by the FHWA’s contention that the rule

imposed costs that exceeded its value while simultaneously recognizing that “some state and

local agencies already collect [the relevant] data.” Id. at 28–29. And, they see little merit in the

FHWA’s concern about “potential duplication” because the agency had designed the GHG

Performance Measure rule to rely on “some” existing data to “‘minimize[] [the] burden

[imposed] on transportation agencies.’” Id. at 29 (quoting 82 Fed. Reg. 5,970, 5,993 (Jan. 18,

2017)).

Those concerns might (or might not) form the basis for an APA challenge to the final rule

itself. But they are insufficient to trigger the “narrow exception to the general rule against

inquiring into ‘the mental processes of administrative decisionmakers’” permitted only when

there is a “‘strong showing of bad faith or improper behavior.’” Dep’t of Commerce v. New

York, 139 S. Ct. 2552, 2573–74 (2019) (quoting Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 420 (1971)). Nor are they sufficient to rebut the “presumption of good

faith” that the courts typically accord agency declarations and affidavits. See, e.g., SafeCard

Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). The Court is, accordingly,

constrained to conclude that neither of the challenged provisions of the Executive Order—the

two-for-one rule or the annual cap—played a role in the agency’s decision to repeal the GHG

Performance Measure rule; at most, the Executive Order merely induced the FHWA to take a

hard look at its existing regulations, including the GHG Performance Measure rule.

The Court recognizes that the line between an Executive Order’s precipitating a review

that leads to the repeal of a rule for independent policy reasons and its requiring or causing the

repeal may, at times, be a fine one. But the distinction is both real and significant. See Elena

25
Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2277–78 (2001) (describing efforts

of presidents since Reagan to influence administrative activity by requiring agencies to consider

specific regulatory consequences, requiring OMB review, and requiring agencies to initiate

notice-and-comment proceedings). Here, the uncontroverted evidence shows that the final 2018

rule lies on one side of this line (the agency review was precipitated by the Executive Order)

while Plaintiffs’ challenge lies on the other side of the line (they take issue with the mandatory,

two-for-one and annual cap provisions of the Executive Order). Absent some evidence of bad

faith or other misconduct, that is enough to defeat Plaintiffs’ first theory of standing.

The Court, accordingly, concludes that Plaintiffs have failed to establish that they have

standing to sue based on the FHWA’s repeal of the GHG Performance Measure rule.

2. DOE’s Energy Efficiency Standards for Residential Cooking Products

In June 2015, the Department of Energy proposed a new rule under the Energy Policy

and Conservation Act, 42 U.S.C. § 6201 et seq., to set more stringent energy efficiency standards

for residential cooking products, which it expected would result in considerable energy savings

and reduced greenhouse gas emissions. See Energy Conservation Program: Energy Conservation

Standards for Residential Conventional Ovens, 80 Fed. Reg. 33,030 (June 10, 2015) (to be

codified at 10 C.F.R. pt. 430). After a public hearing and after receiving public comments, the

Department issued a supplemental notice of proposed rulemaking in September 2016. See

Energy Conservation Program: Energy Conservation Standards for Residential Cooking

Products, 81 Fed. Reg. 60,784 (Sept. 2, 2016) (to be codified at 10 C.F.R. pts. 429 & 430). The

Department subsequently extended the deadline for public comment until November 2016.

Energy Conservation Program, Energy Conservation Standards for Residential Conventional

Cooking Products; Supplemental Notice of Proposed Rulemaking, 81 Fed. Reg. 67,219 (Sept.

26
30, 2016) (to be codified at 10 C.F.R. pt. 430). Under 42 U.S.C. § 6295(m)(3)(A), the

Department was required to publish a final rule within two years of its initial rule proposal. It

has not done so to date.

Plaintiffs contend that, as a result of that delay, they have suffered or will suffer an injury

in fact due to increased greenhouse gas emissions that will cause environmental damage within

the states and that will require the use of state resources to deal with their collateral effects. Dkt.

17 at 30–31, 34. The states cite rising sea levels in California and Oregon, wildfires, and

extreme weather including increased temperatures as particular causes of concern. Id. at 32.

They indicate that these climate change events will impact the states financially, for example by

destroying coastal properties and requiring indigent sufferers of heat-related illnesses to rely on

states’ publicly-funded healthcare programs. For present purposes, the Court can assume—

without deciding—that the failure to finalize the revised efficiency standards has contributed to

climate change and that that states have suffered corresponding injuries. But, even with that

assumption, Plaintiffs have still failed to satisfy Article III’s causation element because the

undisputed evidence demonstrates that the Executive Order has not caused, and is not likely to

cause, the delay.

Defendants proffer the declaration of David Nemtzow, Director of the Building

Technologies Office in the Office of Energy Efficiency and Renewable Energy at the

Department of Energy, to show that the cause of the delay lies elsewhere. Dkt. 14-2 at 1

(Nemtzow Decl. ¶ 1). Nemtzow attests that, for a new energy efficiency standard to be

established, the Department must also promulgate a test procedure to measure the energy

efficiency of covered products. Id. at 2–3 (Nemtzow Decl. ¶ 4). He explains that related

rulemakings, including consideration of a March 2018 petition from the Association of Home

27
Appliance Manufacturers seeking revocation of the existing test procedure, have caused the

delays in finalizing the energy efficiency rule. Id. at 3–4 (Nemtzow Decl. ¶¶ 6–7). In

unqualified terms, he attests that “Executive Order 13771 has not been a factor affecting any

DOE decisions about when or whether to issue a final rule in the Cooking Products Rulemaking”

and “has not been a factor affecting any DOE decision to delay, postpone, or make inactive” that

rulemaking. Id. at 4–5 (Nemtzow Decl. ¶ 8).

The Court concludes, as it did in Public Citizen, that Plaintiffs fail to offer any

controverting evidence that would allow a factfinder to conclude that the Executive Order has

caused or is likely to cause delays in issuing the new energy efficiency standards. Indeed, as the

Court observed in Public Citizen II, the fact that the Energy Policy and Conservation Act

requires the Department to issue a final rule within two years of its publication of a proposed

rule, see 42 U.S.C. § 6295(m)(3)(A), and the fact that the Executive Order “does not prevent

agencies from issuing regulatory actions in order to comply with imminent statutory

. . . deadlines,” Final Guidance, Q. & A. 33, derail Plaintiffs’ argument. 361 F. Supp. 3d at 89.

There is not only a dearth of evidence that the Executive Order is to blame, there is also no

reason to believe that the Executive Order even purports to reach circumstances, like those

present here, where a statute compels prompt action. See Public Citizen III, No. 17-253, 2019

WL 7037579, at *9.

The Court, accordingly, concludes that Plaintiffs have not established standing based on

DOE’s failure to finalize the Energy Efficiency Standards for Residential Cooking Products.

3. NHTSA’s Proposed V2V Rule

In January 2017, NHTSA proposed a regulation that would require all new light vehicles

to include V2V technology, which allows vehicles to communicate data with one another to

28
prevent crashes. See Federal Motor Safety Standards; V2V Communications, 82 Fed. Reg.

3,854, 3,855–57 (Jan. 12, 2017) (to be codified at 49 C.F.R. pt. 571). In the proposed rule,

NHTSA anticipated that this technology would prevent hundreds of thousands of crashes, save

about a thousand lives annually, and avoid billions of dollars in property damage in the coming

decades. Id. at 3,855–58. The parties agree that the V2V rule is subject to the Executive Order.

Dkt. 17 at 39. In February 2017, the Department of Transportation, NHTSA’s parent agency,

stated that it was evaluating its “rulemaking priorities . . . in accordance with Executive Order

13771” and, consistent with that review, the Department did not post a significant rulemaking

report regarding the proposed V2V rule for several months. Dkt. 17-8 at 91 (Rumsey Decl. Ex.

K). The Department eventually moved the V2V rulemaking from its “current agenda” to its list

of “long term actions” and noted that the next action was “[u]ndetermined” and that the date on

which that action would occur had not yet been determined. Id. at 89 (Rumsey Decl. Ex. J).

Plaintiffs posit that the delay in finalizing the V2V rule has burdened, and will continue

to burden, them with substantial costs resulting from otherwise avoidable light vehicle crashes.

They assert that, together, California, Oregon, and Minnesota suffer more than eleven vehicle-

related fatalities each day, Dkt. 17 at 40–41 (citing Centers for Disease Control and Prevention,

State-Specific Cost of Death Fact Sheets), and that such accidents impose many millions of

dollars in costs on them each per year, id. at 41 (citing The Economic and Societal Impact of

Motor Vehicle Crashes, 2010 (Revised) 145–46). For present purposes, the Court will assume

without deciding that the delay in finalizing the V2V rule has caused and will continue to cause

Plaintiffs’ substantial fiscal injury.

But, like the plaintiffs in Public Citizen, the plaintiffs in this case have not shown that the

Executive Order is the cause of any delay to date or of any future delay, and, in fact, the

29
uncontroverted evidence indicates other causes for the delay. In support of their contention that

the cause of the delay lies elsewhere, Defendants proffer the verified answers to interrogatories

from the Department of Transportation, which were propounded and answered in Public Citizen.

See Dkt. 14-8 at 1–23. When asked to “[d]escribe in detail any consideration of Executive Order

13,771 in the agency’s discussions of or decisions as to the V2V rulemaking,” a Department

official responded—under the penalty of perjury—that the Executive Order “has not been a

factor affecting any DOT decisions about when or whether to issue a Final Rule with respect to

the V2V Rulemaking.” Dkt. 14-8 at 5. The Department further explained:

DOT continues to engage in an evaluation of the substance and merits of the
rulemaking. In December 2018, DOT requested public comments on several
technical questions related to vehicle-to-vehicle, vehicle-to-infrastructure, and
vehicle-to-pedestrian communications. 83 Fed. Reg. 66,338 (Dec. 26, 2018).
DOT’s request for comments noted that that proposed rule issued in the V2V
Rulemaking identified Dedicated Short-Range Communications (“DSRC”) as
the primary communications medium, stated that there has been progress in two
other technologies, “both of which may, or may not, offer both advantages and
disadvantages over DSRC,” and asked for public comment on this and several
other technical matters. As it continues to evaluate the substance and merits of
the V2V Rulemaking, DOT is reviewing and considering the 166 comments
received in response to this request, the 460 comments received with respect to
the proposed rule, and other information.

Id. at 6–7. The Department concluded: “This evaluation, review, and consideration has not been

prompted by, or connected with” the Executive Order. Id. at 7.

Defendants supplement this earlier showing with the declaration of Deborah Aiken, the

Director of Regulatory Analysis in the Office of the Secretary of Transportation. Dkt. 14-5 at 1

(Aiken Decl. ¶ 1). Aiken confirms that “EO 13,771 has not affected NHTSA’s decisions about

whether to issue a Final Rule in the V2V rulemaking.” Id. at 3 (Aiken Decl. ¶ 7). She further

attests that the “placement of the V2V rulemaking [on the list of long-term actions in Spring

30
2016] was . . . was completely unrelated to EO 13,771.” Id. at 4 (Aiken Decl. ¶ 10). The

evidence, accordingly, shows that the Executive Order has not delayed or derailed the V2V rule.

Nor is the Court persuaded that the risk that the Executive Order might do so in the future

is sufficient to sustain Plaintiffs’ standing. To be sure, the risk of future injury can, at times,

support a plaintiff’s standing to sue. See, e.g., Bennett v. Spear, 520 U.S. 154, 168 (1997); Knife

Rights, Inc. v. Vance, 802 F.3d 377, 385–86 (2d Cir. 2015). A party “alleging only future

injuries,” however, “confronts a significantly more rigorous burden to establish standing.”

United Transp. Union v. ICC, 891 F.2d 908, 913 (D.C. Cir. 1989). To satisfy that burden, a

plaintiff must show that the asserted future injury “is ‘certainly impending[]’ or [that] there is a

‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149,

158 (2014) (citation omitted). Although the imminence requirement is relaxed in procedural

injury cases, a procedural-injury plaintiff must still show an imminent risk that the procedural

violation will occur—that is, a procedural-injury plaintiff does not need to show that “the agency

would have reached a different substantive result” but-for the procedural violation, Ctr. for

Biological Diversity, 861 F.3d at 184, but she must show that the procedural violation itself has

occurred or is imminent. Plaintiffs here have not demonstrated an imminent risk that the

Executive Order will contribute to future delays in the finalization of the V2V rule.

The Court, accordingly, concludes that Plaintiffs have not established standing based on

NHTSA’s failure to promulgate a final V2V rule.

4. HHS’s Service Duration Requirements for the Head Start Program

In 2016, the Department of Health and Human services issued a rule requiring Head Start

center-based programs to provide at least 1,020 hours of service per year to low income children.

Head Start Performance Standards, 81 Fed. Reg. 61,294 (Sept. 6, 2016) (codified at 45 C.F.R.

31
Ch. XIII). The new requirement was to be phased in gradually, with at least 50% of “Head Start

center-based funded enrollment” children receiving the annual minimum by August 1, 2019 and

100% receiving it by August 1, 2021. Id. at 61,296. The regulation, however, contained a

“safety valve,” which allowed the Secretary to lower or eliminate the new requirements, if

necessary, based on the potential unavailability of sufficient funds. Id. at 61,419. The acting

Secretary did so with respect to the 50% requirement in January 2018, citing Congress’s failure

to appropriate sufficient funds to allow the hours increase to go into effect without requiring a

corresponding reduction in the number of children served by the program. Secretarial

Determination to Lower Head Start Center-Based Service Duration Requirement, 83 Fed. Reg.

2,743 (Jan. 19, 2018). The Secretary had until February 1, 2020 to waive the 100% requirement,

81 Fed. Reg. at 61,322, 61,403–04; Head Start Service Duration Requirements, 84 Fed. Reg.

11,269, 11,270 (Mar. 26, 2019) and on January 30, 2020 he did so, Secretarial Determination to

Lower Head Start Center-Based Service Duration Requirements, 85 Fed. Reg. 5,332, 5,332 (Jan.

30, 2020).

On March 26, 2019, however, the Department issued an NPRM, proposing to eliminate

the 100% requirement through rulemaking rather than the Secretary’s waiver. Head Start

Service Duration Requirements, 84 Fed. Reg. 11,269 (Mar. 26, 2019). The NPRM explains:

The goal of this NPRM is to eliminate the 100-percent requirement to reduce
[the] burden on grantees, restore programs’ flexibility to design program
schedules that best meet their community needs, and prevent a possible large
reduction in children served in the Head Start programs as a result of a federal
requirement. . . .

We believe the requirement to provide 1,020 annual hours of services for all
preschool center-based slots by August 1, 2021 may be overly prescriptive and
may not allow programs enough autonomy to decide what is best for the
communities and the families they serve. . . .

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 In addition, given that Congress has not appropriated sufficient additional
funding to support increased service duration since the publication of the 2016
. . . final rule, it is unlikely that the 100-percent requirement will be fully funded
prior to the date when programs will have to comply. . . . Therefore, if the 100-
percent requirement were to go into effect, it would likely result in a substantial
reduction in the number of children served by the Head Start program. If we
eliminate this requirement through the rulemaking process, rather than wait for
the Secretary to make a determination closer to February 1, 2020, we will
provide grantees additional time to thoroughly plan how to best use existing
federal resources to continue to prepare children from low-income families to
succeed in school and in life.

Id. at 11,270. In the “Regulatory Process Matters” section of the NPRM, the Department noted

that the “proposed rule, if finalized, would be considered an E.O. 13771 deregulatory action,”

and would generate approximately “$395,000 in annualized cost savings.” Id. at 11,272.

According to Plaintiffs, this proposed action will cause them two types of harm. First,

they will be forced to shoulder the costs associated with “fill[ing] the service gap” left because

the Head Start service duration will not be increased to 100%. Dkt. 17 at 45. Second, they will

suffer “long-term costs” imposed by children growing up without the benefits of extended Head

Start programming, which will be inflicted through increased demands on the criminal justice

system, states’ health care systems, etc. Id. at 46–47. The Court will, again, assume without

deciding that repeal of the 2016 rule would cause Plaintiffs some fiscal harm. But, as with the

regulatory actions discussed above, Plaintiffs’ arguments fail, even with this assumption, because

they have not demonstrated that the Executive Order has caused, or is likely to cause, the

Department to repeal the 2016 rule.

Plaintiffs argue that Executive Order must have motivated the Department’s deregulatory

action for four reasons. First, Plaintiffs contend that, because the Department has plans to

finalize many other regulatory actions, and because the Executive Order demands at least two

deregulatory actions for every new regulation the Department would like to issue, the

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Department had reason to repeal the 2016 rule. Dkt. 17 at 43. Second, they point to the fact that

the Secretary had the power to effect the same change without issuing a rule, and they urge the

Court to infer that the Secretary proposed the rule in order to bank a deregulatory credit for

purpose of the Executive Order 13,771. Id. at 43–44. Third, they stress that the Department

acted prematurely in proposing the repeal of the 100% service duration requirement; Congress

still had time to appropriate sufficient funds to cover the 100% requirement, yet the Department

did not wait to see if Congress would do so. Id. at 44–45. Finally, Plaintiffs point to the text of

the notice of proposed rulemaking, which characterizes the rollback as “an [Executive Order]

13,771 deregulatory action.” Id. at 43 (quoting 84 Fed. Reg. at 11,272).

In response, Defendants proffer the declaration of Colleen Rathgeb, the Director of

Policy, Oversight, and Planning for the Office of Head Start. Dkt. 14-7 at 1 (Rathgeb Decl. ¶ 1).

The declaration acknowledges that the March 26, 2019 NPRM “included a cost-savings analysis

under [Executive Order 13,771], and the agency considered whether and how this rulemaking

would be affected by the Executive Order.” Id. at 6 (Rathgeb Decl. ¶ 28). But Rathgeb attests,

under the penalty of perjury, that “the Executive Order did not cause HHS to propose rolling

back the 100% requirement” and that “there is no causal link between [Executive Order] 13,771

and the rollback of the Head Start service duration requirements.” Id. (Rathgeb Decl. ¶¶ 29–30).

Rather, according to Rathgeb, the policy concerns discussed in the NPRM motivated the

rollback. Id. (Rathgeb Decl. ¶ 29). Rathgeb explains that the ability to achieve the 100%

requirement without reducing the number of children served by Head Start was always

contingent on Congress’s appropriation of additional funding; without it, reaching the 100%

service duration requirement would require decreasing overall enrollment in Head Start. Id. at

3–4 (Rathgeb Decl. ¶ 14). Finally, as the NPRM notes, the Department decided to proceed by

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rulemaking, rather than waiting for the Secretary to waive the requirement, in order to provide

grantees with earlier notice and the opportunity to plan accordingly. 84 Fed. Reg. at 11,270.

Plaintiffs have not met their burden of showing that the Executive Order caused the

Department to issue the NPRM. See Spokeo, 136 S. Ct. at 1547. Although the facts that

Plaintiffs cite might be sufficient to survive a motion to dismiss, the Department has now come

forward with competent evidence that the Executive Order played no role in the Department’s

decision to issue the NPRM, and Plaintiffs have failed to offer any material, controverting

evidence. Under those circumstances, Rule 56(c) requires the Court to enter judgment in favor

of Defendants. See Fed. R. Civ. P. 56(c).

The Court, accordingly, concludes that Plaintiffs have failed to demonstrate that they

have standing based on HHS’s rollback of the Head Start service duration requirement.

* * *

Plaintiffs bear the burden of establishing their standing to sue, yet, as to each of the four

regulatory or deregulatory actions that they identify in their briefs and supporting materials, they

have not shown that either the two-for-one rule or the annual cap caused the relevant agency to

act or to decline to act. Without that essential link, they cannot satisfy Article III, even under the

“special solicitude” and procedural injury doctrines. Finally, even though Plaintiffs’ complaint

includes references to other rulemakings, they have invoked none of those in attempting to carry

their own burden to establish their standing or in opposing Defendants’ motion for summary

judgment on standing. New York v. EPA, 413 F.3d 3, 20 (D.C. Cir. 2005) (party waives

arguments that it fails to raise in its opening brief); Sai v. Dep’t of Homeland Sec., 99 F. Supp. 3d

50, 68 (D.D.C. 2015) (“If a plaintiff files an opposition to a dispositive motion and addresses

only certain arguments raised by the defendant, a court may treat those arguments that the

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plaintiff failed to address as conceded.” (quoting Burnett v. Sharma, 511 F. Supp. 2d 136, 145–

46 (D.D.C. 2007)). Plaintiffs’ references to those additional rulemakings in their complaint do

not suffice to establish Plaintiffs’ standing at this stage of the proceedings.

The Court, accordingly, concludes that Plaintiffs lack standing to challenge Executive

Order 13,771 and the OMB Guidance.

CONCLUSION

For the foregoing reasons, Plaintiffs’ cross-motion for partial summary judgment, Dkt.

17, will be DENIED; Defendants’ motion for summary judgment, Dkt. 14, will be GRANTED;

and the case will be DISMISSED.

A separate order will issue.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: April 2, 2020

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