A trio of public interest groups has again struck out in its quest to quash President Trump’s controversial 2-for-1 executive order after a court held that the groups’ alleged injuries were too speculative.
While it is plausible that the order delayed or derailed some regulatory actions that would have benefited the groups’ members, “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,” the U.S. District Court for the District of Columbia concluded in a December 20 opinion.
Executive Order 13771, which requires the repeal of two regulations for every new one issued, became the source of much uncertainty in the tax world after Trump announced it in late January 2017 as the centerpiece of his deregulation efforts.
The following month, three plaintiffs — Public Citizen Inc., the Natural Resources Defense Council Inc., and the Communications Workers of America, AFL-CIO — filed a lawsuit against Trump and various federal agencies asserting that the order violated the Administrative Procedure Act and was unconstitutional, and that the president exceeded his authority in issuing it. The three groups asked the court to declare the order unlawful and to enjoin the agencies from complying with it.
Agreeing with the government that the plaintiffs lacked standing, the court dismissed the case in February 2018 but allowed the plaintiffs to file an amended complaint. The government again asked the court to dismiss the suit, but the court in February 2019 held that the plaintiffs had met their burden of plausibly alleging that they have standing.
The court allowed the plaintiffs to take limited discovery to detail whether the executive order had caused any relevant delay or withdrawal of a rule. After discovery was completed, both sides filed summary judgment motions on the standing issue.
For the purposes of showing harm, the plaintiffs’ motion focused on two agency rulemakings they say were delayed by the executive order: One was a Department of Transportation rule requiring all new “light vehicles” to be equipped with interoperable V2V communication systems on a specified schedule, and the other was a Department of Energy rule setting stricter energy efficiency standards for commercial water heating equipment.
Third Time Isn’t a Charm
In his December 20 opinion concluding that the plaintiffs hadn’t established standing, Judge Randolph D. Moss noted the difficulty in finding that the order caused them identifiable harm.
“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,” Moss wrote. “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.”
Despite the unusual context of the lawsuit, the plaintiffs still bore the burden of showing they had standing to sue, Moss said.
The judge noted that he had given the plaintiffs three opportunities to meet that burden and allowed them to conduct discovery to establish 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,” Moss concluded.
The case is Public Citizen v. Trump, No. 1:17-cv-00253 (D.D.C. 2019).