297 F. Supp. 3d 6
D.C. Cir.2018Background
- Plaintiffs (Public Citizen, NRDC, CWA) challenged Executive Order 13771 ("two‑for‑one," offsets, annual cost caps) and OMB guidance implementing it, seeking declaratory and injunctive relief.
- EO 13771 requires agencies proposing a significant new regulation to identify two existing rules to repeal, offset new compliance costs with deregulatory savings, and stay within an annual agency cost cap (zero for FY2017); OMB guidance narrowed scope to "significant" actions and provided accounting and some exemptions.
- Plaintiffs alleged the EO and guidance conflict with statutory rulemaking schemes, the APA, and the Constitution, and that the EO chills and delays agency rulemaking that would protect Plaintiffs’ members.
- The government moved to dismiss for lack of Article III standing; Plaintiffs cross‑moved for summary judgment on the merits.
- The district court focused on Article III jurisdiction and concluded Plaintiffs failed to plausibly allege either associational standing (specific members suffering imminent or substantially increased risk of concrete harm) or organizational standing (concrete diversion or self‑censorship injury fairly traceable to the EO).
- Court dismissed for lack of jurisdiction, denied Plaintiffs’ summary judgment, and set a status hearing to consider leave to amend or final judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing — associational: whether Plaintiffs identified at least one member with an injury in fact fairly traceable to EO delays | Identified multiple delayed/withheld rules; members face increased risk of death, injury, or economic loss from regulatory delay | Challenges are speculative: plaintiffs fail to identify specific members for some rules, fail to show agencies would have acted absent EO, and fail to show delay produces a substantial probability of harm | No associational standing: plaintiffs did not plausibly show concrete/imminent injury or causation for named members |
| Article III standing — organizational: whether advocacy chill or diversion of resources is a cognizable injury | EO forces organizations to "think twice" about advocating, chilling petitioning and advocacy and imposing an untenable choice — constitutes injury | Alleged chill is self‑inflicted and speculative; plaintiffs have not declined advocacy or shown concrete resource diversion fairly traceable to EO | No organizational standing: "mere consideration" or speculative chilling is not a cognizable injury; causation lacking |
| Traceability / causation: whether asserted injuries are fairly traceable to EO (not third‑party action) | Agencies delayed or reclassified rulemakings after EO; EO and OMB statements show EO caused delays | Delays may reflect change in administration or policy priorities, not EO; causal chain too attenuated | Court found plausible delay for some rules but overall causation and traceability insufficient to establish standing for the asserted injuries |
| Redressability: whether vacating EO would likely prevent the alleged increased risks | Plaintiffs argue relief would remove EO barrier and allow rules to proceed, reducing risk | Government argues even without EO agencies retain discretion; relief may not redress speculative injuries | Court held plaintiffs failed earlier standing elements, so redressability need not be reached as a basis to retain jurisdiction |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (jurisdictional threshold requires Article III standing before merits)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (three elements of standing: injury, causation, redressability)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (speculative future harms and self‑inflicted chilling do not confer standing)
- Public Citizen v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279 (limits on increased‑risk standing; need substantial increased risk and substantial probability of harm)
- Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333 (associational standing test)
- Havens Realty Corp. v. Coleman, 455 U.S. 363 (organizational standing where concrete drain on resources tied to defendant's conduct)
- DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (courts should not second‑guess political branches; standing prevents generalized grievances)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (threatened injury and standards for imminence/substantial risk)