Full opinion text
MEMORANDUM OF DECISION KRAVITZ, District Judge. This case arises from a dispute between the State of Connecticut and the U.S. Secretary of Education over each other’s obligations under the No Child Left Behind Act of 2001, Pub.L. 107-110, codified at 20 U.S.C. §§ 6301-7941 (the “Act”). Although the State and the Secretary have fundamental, important, and bona fide disagreements about the interpretation and implementation of the Act, they are united in affirming its basic goal of seeking to improve the education of our Nation’s children. Indeed, the State expressly disclaims any intent to challenge the Act itself. Moreover, the State is currently in compliance with the Secretary’s interpretation of the State’s obligations under the Act. In this case, the State challenges the Secretary’s interpretation of several key elements of the Act. In particular, the State asks the Court to clarify the meaning of the so-called “Unfunded Mandates Provision” of the Act, 20 U.S.C. § 7907(a), and to declare that the Secretary’s interpretation of that provision is contrary to its plain language and Congress’s intent in enacting it. In addition, the State seeks a ruling that the Secretary’s implementation of the Act violates both the Spending Clause of the United States Constitution and the Tenth Amendment. Finally, the State alleges that the Secretary violated the Administrative Procedures Act (the “APA”), 5 U.S.C. §§ 701-706, by denying the State’s requests for waivers from the Act’s requirements and also by denying certain plan amendments submitted by the State. On the merits, the Secretary disputes the State’s interpretation of the Unfunded Mandates Provision and asserts that all of her actions are in accordance with the express terms of the Act. However, the Secretary also raises a number of threshold concerns, including whether this Court lacks jurisdiction to hear this pre-enforcement challenge to the Secretary’s interpretation of the Act, whether the State lacks standing to assert its claims, whether the claims themselves are even ripe, and finally, whether the Secretary’s denials of the State’s waiver requests are decisions “committed to the agency” and thus not subject to judicial review under the APA. For these reasons, the Secretary filed a Motion to Dismiss [doc. # 18] asserting under Rule 12(b)(1) of the Federal Buies of Civil Procedure that the Court lacks jurisdiction to hear the State’s claims; the Secretary also argues under Rule 12(b)(6) that the State has failed to state an adequate legal claim. Both parties have submitted truly superb briefing and argument on the difficult issues presented by this case. The Court is most grateful to counsel for their professionalism and skill in presenting their positions to the Court. In this ruling, the Court addresses only the threshold issues relating to its jurisdiction and authority to consider the various claims raised by the State, since the Court concludes that any consideration of the merits of either party’s statutory arguments would require further development of the record. Thus, nothing in this ruling should be read as indicating the Court’s views about the merit (or lack of merit) in the State’s or the Secretary’s underlying arguments about the scope and interpretation of the substantive provisions of the Act. Instead, this decision is all about whether, how, and when the State may present its underlying arguments about the Act to a court. The “whether, how, and when” are nonetheless critical questions for several reasons. For one, the lower federal courts are courts of limited jurisdiction, and the scope of that jurisdiction is determined by Congress. As the Supreme Court famously remarked in Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850), “[cjourts created by statute can have no jurisdiction but such as the statute confers.” For another, the Constitution establishes certain rules regarding who can assert claims and when claims can be asserted in order to ensure that courts are not called upon to resolve abstract questions or provide advisory opinions but instead confine themselves to deciding concrete cases or controversies involving parties who are actually threatened with a real injury that a court decision is likely to remedy. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). For over a year now, the political branches of the State and the federal Government have sparred over their competing interpretations of the Act and its implications for Connecticut. While both parties have engaged in substantial negotiation, posturing and even legal briefing, there has been significantly less concrete action. Finally, courts have wisely developed important prudential rules to ensure that they exercise restraint and do not unnecessarily inject themselves into disputes committed to the other branches of Government or before the time at which judicial action is required. Each of the foregoing restrictions on judicial authority is “founded in concern about the proper — and properly limited role — of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). As explained in more detail below, after careful thought and consideration, the Court has decided that it lacks jurisdiction over most of the State’s claims, though one claim will remain pending after this ruling. I. The procedural history of this case is as follows. On August 22, 2005, the State filed a three-count Complaint [doc. # 1] against the Secretary regarding the Secretary’s interpretation and implementation of the Act. The Secretary moved to dismiss the Complaint on December 22, 2005, asserting lack of jurisdiction and other grounds. See Motion to Dismiss [doc. # 18]. Following briefing, the Court heard over four hours of oral argument on the Secretary’s Motion to Dismiss on January 31, 2006. Underscoring the importance of this case to the State, the Connecticut Attorney General personally argued the motion. At argument, the parties agreed that the State should have an opportunity to amend its Complaint to respond to several concerns expressed by the Secretary and the Court. The parties and the Court also agreed that the Secretary’s Motion to Dismiss would apply to any amended complaint filed by the State. See Order [doc. # 36] (“Secretary Spellings’ Motion to Dismiss [doc. # 18] will be deemed to apply to any amended complaint the State may file.”). The State filed an Amended Complaint [doc. #43] on February 28, 2006. Another round of briefing ensued, with additional oral argument by way of an on-the-record telephonic conference on April 28, 2006. See Defendant’s Memorandum Regarding Amended Complaint [doc. # 50]; Minute Entry [doc. # 59]; State’s Supplemental Brief on Matters Raised During the April 28, 2006 Oral Argument [doc. # 64]; Defendant’s Memorandum Regarding Issues Raised at April 28, 2006 Conference [doc. #65]. During the April 28, 2006 supplementary oral argument, and in response to allegations in the State’s Amended Complaint, the Secretary offered an interpretation of a key provision of the Act that prompted the State to request leave to amend its Complaint for a second time, in order to add a fourth count under the APA relating to the Secretary’s rejection of the State’s plan amendments. After briefing on the propriety of further amendment, the Court granted the State’s Motion for Leave to File Second Amended Complaint [doc. # 72]. See Ruling and Order [doc. # 80]. The State filed its Second Amended Complaint [doc. # 81] on August 1, 2006, and the Secretary responded with Defendant’s Memorandum Regarding the State’s Second Amended Complaint [doc. #83] on August 11, 2006. In accordance with the Court’s prior rulings, the Secretary’s Motion to Dismiss applies to the State’s Second Amended Complaint, which for convenience will be referred to in this ruling as the “Complaint.” While the Secretary’s Motion to Dismiss was pending, the Court also received from interested non-parties a number of requests to participate in the proceedings. See Motion to Intervene [doc. #33] on behalf of the Connecticut State Conference of the NAACP and Individual Minority Parents and Students (“NAACP Motion”); Letter Motion for Leave to Answer Amended Complaint by Connecticut State Conference of the NAACP and Individual Minority Parents and Students in CT [doc. # 54]; Motion of the National Educational Association and Connecticut Educational Association for Leave to File Amicus Brief in Support of the State of Connecticut [doc. # 58]; Motion to Intervene by Bally and Olf Veldhuis [doc. # 62]; Amended Motion to Intervene by Bally and Olf Vel-dhuis [doc. # 63]; Motion for Joinder and to Counterclaim State of Connecticut by Bally and Olf Veldhuis [doc. # 71]. While reserving a final decision on the propriety of intervention, the Court granted permission for the NAACP to file a response to the State’s Amended Complaint, see Inter-venors’ Memorandum in Response to Amended Complaint [doc. # 56], and also granted permission for and received an Amicus Brief from the National Educational Association and Connecticut Educational Association in Support from the State of Connecticut [doc. # 61]. In August, the Court denied the motions to intervene without prejudice to their renewal once the Court had ruled on the challenges to its own subject matter jurisdiction. See Ruling and Order [doc. # 85]. As the Court explained at the time, it first needed to determine what claims, if any, would remain pending before deciding whether intervention by any of the interested parties was proper on any remaining claims. See Riding and Order [doc. # 84]. Nonetheless, the Court is grateful for the input of these non-parties and it has considered their filings in the nature of amicus briefs in ruling on the present motion. II. Inexplicably, given the explicit “without prejudice” nature of its ruling, the NAACP appealed the Court’s ruling on the motions to intervene. See Notice of Appeal [doc.# 86]. The pendency of that appeal necessarily requires the Court to consider before proceeding any further whether it still has jurisdiction over the case, including the Secretary’s pending motion to dismiss, since as a general rule when an appeal is filed, the district court is divested of “control over those aspects of the case involved in the appeal.” Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). For two reasons, the Court is satisfied that it has jurisdiction to continue to consider the Secretary’s Motion to Dismiss [doc. # 81]. First, it is not at all apparent to the Court that its denial of the motions to intervene without prejudice and without resolving the merits of those motions constitutes a final order of the Court that may be appealed. It is well settled that where “a notice of appeal has been filed from an order that is non-appealable, jurisdiction does not rest with the Court of Appeals, but remains with the district court.” Hof-fenberg v. United States, No. 00 Civ. 1686(RWS), 2004 WL 2338144, at *2 (S.D.N.Y. Oct. 18, 2004) (collecting cases). The reasoning behind this rule is, as the Second Circuit has explained, that “no efficiency [is] gained by allowing a party arbitrarily to halt the district court proceedings by filing a plainly unauthorized notice which confers on this Court the power to do nothing but dismiss the appeal.” Leon-hard v. United States, 633 F.2d 599, 610 (2d Cir.1980). Here, the Court has not decided the merits of the motions to intervene. While the Second Circuit has stated that “dismissals with and without prejudice are equally appealable as final orders,” Salim Oleochemicals v. M/V Shropshire, 278 F.3d 90, 93 (2d Cir.2002) (internal quotation omitted), that case, and others like it, involved dismissals of an underlying claim, rather than the temporary disposition of a motion to intervene, see id. at 93 (citing Elfenbein v. Gulf & W. Indus., Inc., 590 F.2d 445, 449 (2d Cir.1978); Allied Air Freight, Inc. v. Pan Am. World Airways, Inc., 393 F.2d 441, 444 (2d Cir.1968); Rinieri v. News Syndicate Co., 385 F.2d 818, 821 (2d Cir.1967)). More to the point is a decision by the Seventh Circuit, in which the court held that the “district court plainly expressed its intent not to reach the merits of the motion to intervene” and that because the “decision by the district court did not resolve definitively whether [the putative intervenor] ought to be allowed to intervene ... [it] is therefore not a final decision within the meaning of 28 U.S.C. § 1291.” United States v. City of Milwaukee, 144 F.3d 524, 528-29 (7th Cir.1998). Second, and in any event, even if the denial of the motion to intervene were a properly appealable order, the Second Circuit has held that the “filing of a notice of appeal only divests the district court of jurisdiction respecting the questions raised and decided in the order that is on appeal.” N.Y. State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1350 (2d Cir.1989) cited in Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53 (2d Cir.2004). On the present motion, the Court is required to consider only whether it has subject matter jurisdiction, an issue that is unaffected by the requests to intervene. See 7C Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1917 (2d ed. 1986) (“Intervention cannot cure any jurisdictional defect that would have barred the federal court from hearing the original action.”); Fuller v. Volk, 351 F.2d 323, 328 (3d Cir.1965) (“It is well-settled that ... intervention contemplates an existing suit in a court of competent jurisdiction.”). Because the motions to intervene are not relevant to the determination of subject matter jurisdiction, the Court concludes that it retains jurisdiction over the Secretary’s Motion to Dismiss [doc. # 18]. Accordingly, the Court now turns to the Secretary’s motion. The Secretary has moved to dismiss this action under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Mot. to Dismiss [doc. # 18]. On a motion to dismiss under either Rule 12(b)(1) or Rule 12(b)(6), the Court “must accept as true all material factual allegations in the complaint,” J.S. ex rel. N.S. v. Attica Cent. Schools, 386 F.3d 107, 110 (2d Cir.2004). Furthermore, a “complaint should not be dismissed ... ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Todd v. Exxon Corp., 275 F.3d 191, 197-98 (2d Cir.2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Thus, “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996) (internal quotation omitted). III. The following factual summary is taken from the Complaint [doc. #81], the statutes involved, and certain documents expressly referred to in the Complaint, such as written correspondence between the Secretary and the State available on the website of the Connecticut Department of Education and incorporated by reference in the Complaint. See, e.g., Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004) (“A complaint is deemed to include any written instrument attached to it as an exhibit ... materials incorporated in it by reference ... and documents that, although not incorporated by reference, are ‘integral’ to the complaint.”) (citations omitted). Because the State’s allegations can only be understood against the backdrop of the federal educational provisions implicated by the State’s claims, the Court will begin with a brief summary of the relevant statutory provisions. A. The No Child Left Behind Act On January 8, 2002, President George W. Bush signed into law the No Child Left Behind Act of 2001. The Act — a comprehensive, and in some quarters controversial, educational reform — amended the Elementary and Secondary Education Act of 1965, Pub.L. No. 89-10, 79 Stat. 27 (codified as amended at 20 U.S.C. §§ 6301-7941(2003)), which provides for federal educational grants to states known as “Title I” funds. The primary purpose of the Act, to which both parties affirm their allegiance, is to “ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education.” 20 U.S.C. § 6301. Academic ae-countability lies at the core of the Act, which seeks to improve educational attainment by ensuring that “high quality academic assessments, accountability systems, teacher preparation and training, curriculum, and instructional materials are aligned with challenging State academic standards.” 20 U.S.C. § 6301(1); see also H.R.Rep. No. 107-63(1), at 281 (2001) (stating that the Act “holds States, local educational agencies (LEAs) and schools accountable for ensuring that all students, including disadvantaged students, meet high academic standards”). Congress enacted the Act pursuant to its power under Article I, Section 8, Clause 1 of the United States Constitution, the so-called “Spending Clause,” which permits Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” Art. I, § 8, cl. 1. “Incident to this power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.” South Dakota v. Dole, 483 U.S. 203, 206-08, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (internal quotations and citations omitted). In return for federal educational funds under the Act, Congress imposed on states a comprehensive regime of educational assessments and accountability measures. Congress also required that states use the federal funds made available under the Act “only to supplement the funds that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs assisted under this part, and not to supplant such funds.” 20 U.S.C. § 6321(b)(1). To be eligible for federal funds under the Act, a state must submit to the Secretary a plan developed by the state educational agency. 20 U.S.C. § 6311(a). Each state plan consists of three principle elements: * First, the plan must demonstrate that the state “has adopted challenging academic content standards and challenging student academic achievement standards that will be used by the State, its local educational agencies, and its schools to carry out” the Act’s requirements. 20 U.S.C. § 6311(b)(1)(A). * Second, each state plan must show that “the State has developed and is implementing a single, statewide State accountability system that will be effective in ensuring that all local educational agencies, public elementary schools and public secondary schools made adequate yearly progress” in achieving objectives for educational improvement. 20 U.S.C. § 6311(b)(2)(A). * Third, each state must show that the state “has implemented a set of high-quality, yearly student academic assessments that include, at a minimum, academic assessments in mathematics, reading or language arts, and science....” 20 U.S.C. § 6311(b)(3)(A). State plans are subject to a peer-review process and require approval by the Secretary. 20 U.S.C. § 6311(e). If a state’s plan does not comply with the requirements of the Act, the Secretary is empowered to decline to approve it, id., and is further authorized to impose penalties on non-compliant states, id. § 6311(g). The Secretary is also authorized to grant waivers from a majority of the Act’s requirements. Id. § 7861. Because provisions of the Act that explain state testing requirements and describe the Secretary’s authority to waive provisions and to impose sanctions for noncompliance are central to the dispute between the State and the Secretary, the Court will describe those provisions in detail below. After presenting the relevant provisions of the Act, the Court will turn to the State’s description of its own assessment regime, its requests for modification of certain statutory requirements of the Act, and the Secretary’s response to those requests. 1. Statutory Testing Requirements Of particular relevance to the present case, the Act requires states to conduct annual testing of students between grades three and eight, as well as high school students, in the subjects of mathematics and reading or language arts. 20 U.S.C. § 6311(b)(3). States are required to include “all students” in the annual testing regime, 20 U.S.C. § 6311(b)(3)(c)(ix)(I), including two classes of students that are the focus of the State’s claims in this case: (1) those whose grasp of English is limited — known as English Language Learner (“ELL”) students; and (2) those who are eligible for special education services, 20 U.S.C. § 6311(b)(3)(C)(ix)(II)-(III). With respect to students having limited proficiency in English, the Act provides that such students “shall be assessed in a valid and reliable manner and provided reasonable accommodations on assessments ... including, to the extent practicable, assessments in the language and form most likely to yield accurate data on what such students know....” 20 U.S.C. § 6311(b)(3)(C)(ix)(III). Rather than immediately administering English-language tests to non-native speakers, states are encouraged to test students in their own languages, and may do so for up to three years. However, once a student has attended school in the United States for three years, the statutory default becomes assessment in English. Native-language testing, though, may be extended for an additional two years on a case-by-case basis. 20 U.S.C. § 6311(b)(3)(C)(x). Like students with limited English proficiency, special education students must be included in the annual testing regime, and states are required to provide “the reasonable adaptations and accommodations for students with disabilities ... necessary to measure the academic achievement of such students relative to State academic content and State student academic achievement standards....” 20 U.S.C. § 6311(b)(3)(C)(ix)(II). In addition to specifying which students must be tested, in which subjects, and with what frequency, the Act contains provisions directed at the quality of state assessments. States may choose the assessments by which they measure proficiency, but those assessments must be aligned with the state’s academic standards and must be “consistent with relevant, nationally recognized professional and technical standards,” 20 U.S.C. § 6311(b)(3)(C)(iii). The assessments also must include “multiple up-to-date measures of student academic achievement, including measures that assess higher-order thinking skills and understanding,” 20 U.S.C. § 6311(b)(3)(C)(vi). The Act provides funds to assist states in developing and administering the assessments required by the Act. 20 U.S.C. §§ 7301-7301b. However, the Act provides states with a limited right to defer implementation of their testing programs (though states must still develop the relevant testing materials) if federal funding does not meet certain specified levels: A State may defer the commencement, or suspend the administration, but not cease the development, of the assessments described in this paragraph, that were not required prior to January 8, 2002, for 1 year for each year for which the amount appropriated for grants under section 7301b(a)(2) is less than— (i) $370,000,000 for fiscal year 2002; (ii) $380,000,000 for fiscal year 2003; (iii) $390,000,000 for fiscal year 2004; (iv) $400,000,000 for fiscal years 2005 through 2007. 20 U.S.C. § 6311(b)(3)(D). The Court takes judicial notice of the fact that congressional funding has met or exceeded the foregoing amounts for the years in question. See Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2002, Pub.L. No. 107-116, 115 Stat. 2177, 2202-03 ($387 million for fiscal year 2002); Consolidated Appropriations Resolution, 2003, Pub.L. No. 108-7, 117 Stat. 11, 328 ($387 million for fiscal year 2003); Consolidated Appropriations Act, 2004, Pub.L. No. 108-199, 118 Stat. 3, 257 ($391.6 million for fiscal year 2004); Consolidated Appropriations Act, 2005, Pub.L. No. 108-447, 118 Stat. 2809, 3144 ($400 million for fiscal year 2005). The State does not claim otherwise. The ultimate purpose of the assessment requirements of the Act is to increase accountability, improve educational attainment, and close achievement gaps between different racial, ethnic, and socio-economic student populations. See 20 U.S.C. § 6301. Accordingly, the Act requires schools and states to report the results of student assessments as measured against a benchmark statistic known as Annual Yearly Progress. See id. § 6311(b)(2)(B), § 7325. In determining adequate yearly progress, the Act requires states to use a statistically reliable method of measuring student progress based on academic assessments developed by the state. Id. § 6311(b)(2)(C)(ii), (iv). A state’s definition of adequate yearly progress must also include “separate measurable annual objectives for continuous and substantial improvement” for all students. Id. § 6311(b)(2)(C)(v). At the risk of oversimplification, a school or district will fail to satisfy the Annual Yearly Progress requirement if one of certain specified subgroups of students in any grade fails to satisfy the state’s annual proficiency standards. Id. § 6311(b)(2)(I); see Compl. [doc. # 81] ¶ 60. Schools or districts that fail to make Annual Yearly Progress face progressively severe consequences and must take corrective measures. See generally 20 U.S.C. § 6316(b)(l)-(8). 2. The Secretary’s Authority to Approve or Decline State Plans The Act gives the Secretary authority to approve or decline a state’s plan and to impose penalties on non-compliant states. Under 20 U.S.C. § 6311(e), the Secretary must evaluate a state’s plan for compliance with the testing requirements described above. The Secretary must approve the plan within 120 days of its submission or immediately notify the state of the reasons for her determination that its plan does not conform to the statutory requirements. Id. § 6311(e)(1)(B)-(C). Before the Secretary can formally decline approval of a state’s plan, she must “offerf ] the State an opportunity to revise its plan[,] ... provide] technical assistance in order to assist the State to meet the requirements^] ... and provid[e] a hearing.” Id. § 6311(e)(1)(E). While the Secretary may disapprove a state plan, the Secretary does not have “authority to require a State, as a condition of approval of the State plan, to include in, or delete from, such plan one or more specific elements of the State’s academic content standards or to use specific academic assessment instruments or items.” Id. § 6311(e)(1)(F). The Act also anticipates the possibility that a state may wish to modify its plan after initial approval. In such cases, the Act provides that “[i]f significant changes are made to a State’s plan, such as the adoption of ... new academic assessments ... such information shall be submitted to the Secretary.” Id. § 6311(f). The relevant subsection does not describe the procedures that apply to the Secretary’s review of proposed state plan amendments. The Secretary contends that the required procedures are less rigorous than those required for the evaluation of the initial plan, see Def.’s Mem. Regarding the State’s Second Am. Compl. [doc. # 83] at 8-16, while the State suggests that the procedures ought to be the same for both, see Compl. [doc. # 81] ¶ 152, 3. The Secretary’s Authority to Waive the Act’s Requirements Although the requirements of the Act are stated in mandatory terms, the Secretary is expressly empowered to waive most of them. Section 7861(a) of the Act states that, subject to certain enumerated exceptions, the Secretary “may waive any statutory or regulatory requirement of this chapter for a State educational agency ... that receives funds under a program authorized by this chapter ... [and] requests a waiver.... ” The Secretary, however, may not grant a waiver from any of ten enumerated statutory provisions, including the requirement that “Federal funds [be used] to supplement, not supplant, non-Federal funds.” 20 U.S.C. § 7861(c). A state applying for a waiver must “provide notice and information to the public regarding the waiver request,” id. § 7861(b)(3), and must submit a proposal that describes “how the waiving of [the targeted] requirements will — (i) increase the quality of instruction for students; and (ii) improve the academic achievement of students,” id. § 7861(b)(1). The Secretary may grant a waiver for up to four years; after expiration of the waiver, the Secretary may renew it “if the Secretary determines that — (A) the waiver has been effective in enabling the State or affected recipient to carry out the activities for which the waiver was requested and the waiver has contributed to improved student achievement; and (B) the extension is in the public interest.” Id. § 7861(d)(2). Any decision to grant a waiver (though not to deny one) must be published in the Federal Register and disseminated to interested parties including educators, parents, and advocacy groups. Id. § 7861(g). The Secretary must also submit an annual report to Congress “summarizing the uses of waivers ... [and] describing whether the waivers — (i) increased the quality of instruction to students; or (ii) improved the academic achievement of students.” Id. § 7861(e)(4). Ip. The Secretary’s Authority to Impose Penalties for Non-Compliance With the Requirements of the Act Sections 1234c-e of the General Education Provisions Act, Pub.L. No. 90-247, 81 Stat. 814 (codified as amended at 20 U.S.C. §§ 1221-1240 (2003)) (“GEPA”), provide the Secretary with a variety of mechanisms for enforcing the terms of “any program for which the Secretary or the Department [of Education] has administrative responsibility as provided by law,” 20 U.S.C. § 1221(c), which includes the No Child Left Behind Act. GEPA authorizes the Secretary to compel compliance with statutory requirements of educational programs by withholding federal funds, issuing a cease and desist order, entering into a compliance agreement, or “tak[ing] any other action authorized by law with respect to the recipient.” 20 U.S.C. § 1234c. Before the Secretary may withhold payments to any state, however, she must give the state notice of intention to withhold, the basis for the withholding, and must provide the state with an opportunity for a hearing before the Department of Education’s Office of Administrative Law Judges (the “ALJ”). Id. § 1234d. Although the Secretary may not proceed to withhold payments before a state has had an opportunity to be heard, GEPA does authorize her to suspend payments pending the outcome of such a hearing. Id. § 1234d(b)-(d). The decision of the ALJ may be appealed to the Secretary, who reviews the ALJ’s findings to see if there is “substantial evidence” to support the ALJ’s findings. Id. § 1234d(e). Unless the Secretary sets aside the ALJ decision, it becomes a final agency action after sixty days. Id. § 1234d(f). However, if the Secretary modifies or sets aside the ALJ’s decision, that decision becomes a final agency action upon written notification of the Secretary’s decision to the recipient of federal funds. Id. Appeals from the final agency decision on enforcement are statutorily channeled to the United States Courts of Appeals. If an appeal is taken, the Secretary is barred from acting on the basis of the enforcement decision until judicial review is completed. Id. § 1234g(a) (“The Secretary may not take any action on the basis of a final agency action until judicial review is completed.”). While the comprehensive enforcement mechanism set forth in GEPA applies generally to any educational program administered by the Secretary, including the No Child Left Behind Act, the section of the Act that describes states’ annual testing requirements contains its own, additional penalty provision. That provision states that the Secretary may penalize states for failing to meet the testing requirements set forth in § 6311(b)(3) of the Act by “withholding] funds for State administration ... until the Secretary determines that the State has fulfilled those requirements.” 20 U.S.C. § 6311(g)(2). Connecticut alleges that its share of federal funds for state administration, under the Act, amounts to approximately $3 million per year. Compl. [doc. # 81] ¶ 65. Nothing in the Act itself requires a state to accept federal funds under the No Child Left Behind program. According to the Complaint, however, in 2004, the State of Utah asked the Secretary about the consequences of opting out of the Act and relinquishing the federal funds that it provides. The State asserts that Utah was told that it would lose not only those funds specifically designated for programs under the No Child Left Behind Act, but also twice that amount in funding for other programs calculated by reference to the amount of funding that a state receives under Title I. See id. ¶ 67. Accordingly, the State alleges that if it were to fail to comply with the Act, the cost to the State could potentially be hundreds of millions of dollars, comprising 5% of overall education spending in the State and as much as 15% of spending in the most disadvantaged school districts. See id. ¶ 64. 5. The Unfunded Mandates Provision Although the Secretary is empowered to disapprove a state’s plan for failing to comply with the Act’s provisions on testing, the Act expressly provides that the Secretary “shall not have the authority to require a State, as a condition of approval of the State plan, to include in, or delete from, such plan one or more specific elements of the State’s academic content standards or to use specific academic assessment instruments or items.” 20 U.S.C. § 6311(b)(3)(e)(l)(F). Central to the State’s Complaint in this litigation is a linguistically similar general provision of the Act, which the State contends further constrains the Secretary’s authority to shape a State’s plan. That provision is commonly known as the Unfunded Mandates Provision, and it reads as follows: § 7907 Prohibitions on Federal Government and use of Federal funds (a) General prohibition Nothing in this chapter shall be construed to authorize an officer or employee of the federal Government to mandate, direct, or control a State, local educational agency, or school’s curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this chapter. 20 U.S.C. § 7907(a). The language of this provision was apparently carried over from the Act’s predecessor legislation. See Pub.L. No. 103-382, 108 Stat. 3518, 3906 (1994); Pub.L. No. 103-227, 108 Stat. 125, 186 (1994). This provision has already been the subject of one judicial opinion, School Dist. of Pontiac v. Spellings, No. Civ. A. 05-CV-71535-D, 2005 WL 3149545 (E.D.Mich. Nov. 23, 2005), currently on appeal to the Sixth Circuit. According to the State, the Unfunded Mandates Provision “requires full federal government funding for the provisions of the ... Act.” Compl. [doc. # 81] ¶ 5. Building on this interpretation, the State further reasons that, when federal funds are insufficient to cover a state’s implementation of a statutory requirement, the Secretary is required by the Unfunded Mandates Provision to release the state from any obligation to comply with the insufficiently-funded obligation. Compl. [doc. # 81] ¶¶ 46-47. Furthermore, the State claims, to the extent that the Secretary has a different interpretation of the Unfunded Mandates Provision, she is imper-missibly altering the conditions under which the State agreed to accept federal funds, in violation of the Spending Clause. See Compl. [doc. # 81] ¶ 191. The Secretary responds that the Unfunded Mandates Provision is not implicated here because it was Congress, not a federal official, which established the Act’s testing regime, and the Unfunded Mandates Provision applies only to mandates imposed by federal officials, not by the Act itself. See Mem. in Supp. of Def.’s Mot. to Dismiss [doc. # 18] at 32; see also School Dist. of Pontiac, 2005 WL 3149545 (concurring with the Secretary’s interpretation of the Unfunded Mandates Provision). In addition, the Secretary contends that the State’s interpretation of the Unfunded Mandates Provisions cannot logically be reconciled with other sections of the Act that detail explicitly when a state may be excused from the Act’s testing obligations due to insufficient federal funding. See Mem. in Supp. of Def.’s Mot. to Dismiss [doc. # 18] at 34-37. It is undisputed that overall federal funding has not in any year fallen below the express levels that the Act provides will relieve states of their testing obligations. See 20 U.S.C. § 6311(b)(3)(D). The Secretary argues that to interpret the Unfunded Mandates Provision as broadly as the State requests would render these other sections of the Act superfluous, in contravention of a “cardinal principle of statutory construction.” Mem. in Supp. of Def.’s Mot. to Dismiss [doc. # 18] at 32 (quoting TRW, Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (internal quotation omitted)). B. Connecticut’s Approach to Academic Assessment Insofar as the allegations regarding Connecticut’s implementation of the Act are concerned, at this stage of the litigation, the factual allegations of the Complaint must be accepted as true. They are related below in accordance with that rubric. For almost two decades before enactment of the Act, Connecticut had been administering its own system of statewide assessments. In 1986, the State began to assess the progress of its elementary and middle school students through the Connecticut Mastery Test (“CMT”), and in 1994, this system was extended to high school students with the Connecticut Academic Performance Test (“CAPT”). Compl. [doc. # 81] ¶ 88. For over a decade, the State has also emphasized accountability, profiling and publishing assessment results for its school districts and schools on an annual basis, including breakdowns by demographic groups. Id. ¶ 95. According to the State, its efforts at accountability and assessment have paid substantial dividends: Connecticut’s students are ranked among the highest achieving in the Nation and Connecticut has had success in narrowing the achievement gap for minority and economically-disadvantaged students. See id. ¶2. But see NAACP Motion at 2, Ex. A (citing a recent report where Connecticut “ranked dead last among states for its poor to non-poor achievement gap on the National Assessment of Educational Progress”). Connecticut’s settled methodology for monitoring its students’ progress differs in three key respects from the requirements of the Act. First, under Connecticut’s educational assessment regime, the CMT and CAPT are administered in grades 4, 6, 8 and 10, and involve between 6 and 8.5 hours of testing on reading, writing, and mathematics. Importantly, the State’s tests utilize not only multiple-choice questions, but also questions that require short essays and written explanations. See Compl. ¶ 88. Thus, for many years, the State has designed its testing regime and school curriculum around assessments that involve a substantial written component. In addition, at least some Connecticut schools have conducted “formative testing” in grades 3, 5, and 7. See id. ¶ 108, 111. Rather than a comprehensive, but lengthy, annual test, formative testing is conducted multiple times during the year and is designed to “give teachers, students and parents immediate, frequent feedback.” Id. ¶ 109. Second, the State has a long-standing practice of making reasonable accommodations for its special education students, including offering them the option of being tested at their instructional level rather than at their grade level as required by the Act. Id. ¶¶ 51, 92. “For example, a 10th grader who was being instructed at an 8th grade level for mathematics, pursuant to the student’s individualized education plan, would be able to take the 8th grade CMT mathematics test.” Id. ¶ 92. Third, with respect to limited English proficiency students, the State’s practice for two decades has been to permit these students three years of study in the United States before requiring them to take the State’s assessments. By contrast, the Act requires these students to be tested within one year of entry into the United States, albeit allowing them to be tested in then* native language for the first three years. Id. ¶¶ 54, 93,115. Although Connecticut has been and remains in compliance with the Act as interpreted by the Secretary, it has repeatedly requested and been denied modification of the statutory testing requirements relating to annual testing, testing of ELL students, and special education students. In particular, the State has requested permission: (1) not to administer the CMT and CAPT annually, but rather to continue administering the Connecticut tests in grades 4, 6, 8, and 10 and formative testing in grades 3, 5, and 7; (2) to exclude limited English proficiency students from the annual testing requirements for three years and then test them in English; and (3) to provide up to 2% of special education students with the option of being assessed at instructional level rather than at grade level. Id. ¶¶ 10, 105. In addition to submitting these requests for waivers of the statutory testing requirements, the State submitted two proposals, which the Secretary construed and responded to as plan amendments. These two requests pertained only to ELL students and special education students; the State has never submitted a proposed plan amendment to use only formative testing in grades 3, 5, and 7. Id. ¶¶ 148, 151,154. The State’s Complaint cites a number of grounds for its requests for modification of the Act’s testing requirements. The State’s primary objection to each of the testing requirements is fiscal, see id. ¶ 14, though the State also hastens to add concerns about the efficacy of any testing regime it is required to adopt. Fundamentally, Connecticut complains that strict adherence to the requirements of the Act regarding annual testing, testing of ELL students, and testing of special education students will cost more than the federal government provides to the State for those purposes. Therefore, requiring compliance with the Act would breach the Unfunded Mandates Provision, which in the State’s view requires the federal government to fully fund every requirement imposed by the Act. Id. ¶ 8. Through briefing and amendment of its Complaint, Connecticut’s claims regarding the testing requirements of the Act have become clearer. With respect to the requirement of annual testing, the State’s argument runs as follows: In the absence of permission to employ formative testing in grades 3, 5, and 7, the State will have to administer its CMT in each of grades 3 through 8, a task which both state and federal studies reveal will cost almost double the available federal funding. Id. ¶ 142; see also Def.’s Mem. Regarding Pis.’ Am. Compl. [doc. # 50] Exs. A, B (state and federal studies, respectively). The parties agree that the Secretary has indicated — albeit only informally — that the State could comply with the Act if it continues its current practice of administering the CMT in grades 4, 6, 8, and 10 and introduces multiple-choice-only tests in grades 3, 5, and 7. Id. ¶ 137. This approach would cost less than administering CMT tests annually because multiple-choice tests are less time-consuming, and therefore less expensive, to grade than the CMT with its written response component. Indeed, one study referred to and relied on in the State’s Complaint indicates that federal funding would be more than sufficient to cover the State’s testing obligations under the Act if the State abandoned its CMT tests and adopted multiple-choice-only testing in each grade. See Def.’s Mem. Regarding Pis.’ Am. Compl. [doc. # 50] Ex. B at 19 (United States General Accounting Office, GAO-03-389, Title I: Characteristics of Tests Will Influence Expenses; Information Sharing May Help States Realize Efficiencies (May 2003)); see also Compl. [doc. #81] ¶¶ 77, 78 (citing the GAO report). The State does not address the possibility of switching to a multiple-choice-only regime, but rather intimates (rather artfully in the Court’s view) that federal funding might still be insufficient to cover the State’s costs, even if the State elected to use multiple-choice-only testing. See Compl. [doc. # 81] ¶¶ 8,142,173. In any event, the State expressly alleges that alternating the CMT with multiple-choice testing, as the Secretary has suggested, is not a solution to its fiscal concerns for three reasons: First, the State has no formal assurance that such a plan would make it through the statutorily-mandated peer-review process or be approved by the Secretary. Id. ¶ 139. Second, and connected with the State’s concern about peer review, the State asserts that administering tests without any written component would be inconsistent with best practices in education, and would potentially be in violation of the statutory requirement that assessments be “consistent with relevant, nationally recognized professional and technical standards,” 20 U.S.C. § 6311 (b)(3)(C)(iii), as well as the Act’s declared purpose of improving student achievement. See Compl. [doc. # 81] ¶¶ 110, 139, 161. According to the State, its preferred alternative — namely, CMT testing in grades 4, 6, 8, and 10 and formative testing in grades 3, 5, and 7 — “is solidly grounded in scientifically based research, whereas there is no conclusive research that the [multiple-choice] testing required by the Secretary has any positive effect on student academic achievement.” Id. ¶ 110. Third, the State contends that administering CMT tests in grades 4, 6, 8, and 10, and multiple-choice tests in grades 3, 5, and 7, would in any event require the State to spend at least $4 million above and beyond the funds supplied by the federal government, in violation of the Unfunded Mandates Provision. By contrast, the State argues, its proposal to alternate the CMT with formative testing would be fully covered by the available federal funds. Id. ¶¶ 112,142,173. With regard to its request for a three-year exemption for limited English proficiency students, the State asserts that the sheer number (150) of different native languages spoken by students in its schools makes introduction of native-language tests for the first three years (as the Act allows) prohibitively expensive. Id. ¶ 114. Although the statute would allow the State to test its ELL students immediately using its standard English-language tests (and thus at no extra cost to the State), the State rejects this option on the following grounds: (1) that students learning English require at least three years to become proficient; (2) that the written-response format of its tests requires proficiency; and (3) that “[tjesting ELL students at a time and in a format when they cannot reasonably be expected to understand the questions undermines the goals and purposes of the Act[,] ... violates the requirement that ‘reasonable accommodations’ be made for the assessments of ... ELL students,” and “is unsupported by significant scientific research.” Id. ¶¶ 53, 131, 162. Furthermore, the State believes that the choice between immediate tests in English and development of myriad foreign-language tests unfairly confronts it with the “[h]arsh dilemma of either spending millions of dollars of State funds to create, administer, and grade native language tests ... or suffer the series of escalating consequences when its ... schools fail to make their [Annual Yearly Progress] because their ELL students cannot understand the English language tests.” Id. ¶ 165. In support of its request to be allowed to offer 2% of its special education students the option of being tested at instructional level rather than grade level, the State concedes that the choice is “cost-neutral.” Id. ¶ 117. However, the State maintains that (1) “[assessing a special education student at instructional level rather than grade level is a reasonable accommodation,” id. ¶ 118; (2) that the adjustment is required in order to avoid testing special education students “on topics that they have not been taught and that their [Individualized Education Plans] direct that they not be taught at that time,” id. ¶ 131; and (3) that failing to offer this reasonable accommodation would violate “the purposes and goals of the Act,” id. The Secretary has recently announced that states may test up to an additional 2% of their special education students using alternative assessments, in addition to the 1% exception already provided for the most cognitively challenged special education students. Id. ¶¶ 128, 129. The State observes, however, that the substitution of instructional-level tests for grade-level tests does not qualify as administering alternative assessments for purposes of the Secretary’s new policy. Id. ¶ 150. Rather, the Secretary’s new policy anticipates the development of “an entirely new testing regime for special education students for each grade to be tested.” Id. ¶ 150. According to the State, even taking advantage of the partial exception from the default statutory testing requirement embodied in the Secretary’s new policy would require the expenditure of $1.5 million dollars per year in State funds for the development and administration of the alternate assessment regime for special education students. Id. ¶¶ 130, 150. Nevertheless, during the summer of 2005, Connecticut requested and received permission to test 2% of its special education students under the new policy of alternative assessment. Id. ¶ 149. The Complaint does not indicate whether the State has implemented the alternative assessment method for the 2% of the State’s special education students. C. The Secretary’s Response to Connecticut’s Requests The State submitted applications for waivers and/or plan amendments regarding the previously discussed testing requirements in January, March, and May of 2005. Id. ¶¶ 105, 114, 117. The Secretary first denied the requests made in the State’s written application in February 2005. Id. ¶¶ 120, 121. The Secretary denied the State’s waiver requests for a second time in May 2005, after meeting with Connecticut’s Commissioner of Education to discuss the reasons for Connecticut’s requests as well as the State’s plans for a lawsuit challenging the Secretary’s implementation of the Act. Id. ¶¶ 184, 145. The day after the meeting between the parties, the Deputy Secretary of Education orally suggested that Connecticut administer multiple-choice tests in grades 3, 5, and 7, in order to save the expense of extending the CMT to those grades. Id. ¶ 137. The State responded to this suggestion in writing and explained its objections to introducing multiple-choice testing (as discussed above). The Secretary again denied the State’s requests, this time suggesting that the State consider diverting federal funds that it currently allocated to non-testing programs to cover any additional costs of testing. Id. ¶ 145. The Secretary’s third and final denial of the State’s requests for modification of the testing requirements came in June 2005. Id. ¶ 149. Although on this occasion the Secretary construed Connecticut’s requests regarding ELL and special education students as requests for plan amendments rather than as waiver requests, id. ¶ 151, the Secretary did not offer the State an opportunity to revise the amendments or a hearing at which to discuss the amendments prior to issuing her denial of the requests, id. ¶ 152, to which the State argues it was entitled under 20 U.S.C. § 6311(e)(1)(E). According to the State, the Secretary’s principle reason for denying the State’s requests is that the requirement of annual testing is fundamental to the successful implementation of the Act and will not be waived. Id. ¶¶ 123, 124, 159. The Secretary offered a more specific rationale in her February 28, 2005 letter to the State. In that letter, the Secretary explained that national data indicated a substantial achievement gap between black, Hispanic, and white students in Connecticut, which necessitates annual testing in each grade “to determine if these gaps are being closed, and, if they are not, adjustments must be made.” Mem. in Supp. of Def.’s Mot. to Dismiss [doc. # 18] at 11 (citing Letter from Secretary Spellings to Commissioner Sternberg (Feb. 28, 2005) at 1). The Secretary also denied the State’s waiver requests related to ELL and special education students after noting substantial achievement gaps between those categories of students and others in Connecticut. See id. at 12-13. Though she denied the waiver requests, the Secretary alluded to future review of her stated policies with respect to ELL and special education requirements. See id. Both parties agree that the State has been in compliance with all of the requirements of the Act as interpreted by the Secretary throughout the dispute. Compl. ¶4. Due to the State’s compliance, there has been no need for the Secretary to bring an enforcement action against the State for violating any provision of the Act. IV. A. Count I — Unfunded Mandates Provision In Count I of the Complaint [doc. # 81], the State seeks a declaratory judgment to clarify the meaning of the Unfunded Mandates Provision. The State alleges that the Secretary has violated the Unfunded Mandates Provision by requiring the State to expend funds in order to comply with the Secretary’s interpretation of the Act. Count I challenges the Secretary’s interpretation of three specific sections of the Act: (1) the requirement that special education assessments be conducted at grade level rather than instructional level, Compl. [doc. # 81] ¶¶ 117, 129,131; (2) the requirement that ELL students receive mathematics assessments in their first year in the country and reading assessments in the following year, id. ¶¶ 105,115, 131; and (3) the requirement that non-formative annual testing occur in every grade, id. ¶ 112. The State seeks a declaratory judgment that, in accordance with the Unfunded Mandate Provision, the State cannot be required to spend its own funds to comply with the Act, as interpreted by the Secretary. See id. ¶ 186. The Secretary raises a number of threshold objections to the Court’s consideration of the merits of the State’s claims in Count I. The Court will address each objection in turn. 1. Standing The Court must first consider the threshold question of justiciability and in particular, whether the State has standing to assert its claims in Count I. See Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir.2006) (citing Warth, 422 U.S. at 498, 95 S.Ct. 2197). As the Supreme Court has explained: This ‘irreducible constitutional minimum’ of standing requires: (1) that the plaintiff have suffered an ‘injury in fact’ — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of — 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 not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130). For purposes of determining standing, the Court “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth, 422 U.S. at 501, 95 S.Ct. 2197. According to the Secretary, the State lacks standing for two reasons. First, the State is currently in compliance with the Act and has suffered no injury in fact because no federal funds have been withheld from the State. See Mem. in Supp. of Def.’s Mot. to Dismiss [doc. # 18] at 27. The State concedes that it is currently in compliance with the Act and that there is no immediate risk of funds being withdrawn. See Compl. [doc. # 81] ¶ 9. Second, in a related vein, the Secretary argues that all of the State’s alleged injuries are self-inflicted and therefore do not qualify as an injury in fact because the State can comply with the annual testing requirements, as construed by the Secretary, without expending more than the federal funds received by the State under the Act. See Mem. in Supp. of Def.’s Mot. to Dismiss [doc. # 18] at 23-24, 28 (citing Pennsylvania v. New Jersey, 426 U.S. 660, 664, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976) (holding that plaintiff-states lacked standing to challenge income taxes imposed on their residents by other states, where the proximate cause of the plaintiff-states’ injury was the decision of their own legislatures to grant tax credits for income taxes paid to other states)). In effect, the Secretary says that the State wants to employ testing methods that exceed what is required by the Act and then blame the federal Government for failing to pay for more than the Act itself requires. The Secretary’s arguments are not without force. However, the Court need not determine whether the risk of having future funding withdrawn is imminent enough to constitute an injury in fact under standing principles because a more immediate injury exists. The State alleges in its Complaint that the current federal funds it receives under the Act fail to cover the costs of administering the tests required by the Act. Thus, in paragraph 8 of its Complaint, the State expressly alleges as follows: “Federal funding to Connecticut for [the Act’s] mandates is substantially less than the costs attributable to the federal requirements of the ... Act.” Compl. [doc. # 81] ¶ 8. Whether the State will be able to establish the truth of this assertion — -something the Secretary hotly disputes — is irrelevant, for at this preliminary stage of the proceedings, the Court must accept the allegations of the State’s Complaint as true. As the Second Circuit has recently explained, On a motion to dismiss for lack of standing, we presume the general factual allegations embrace those facts necessary to support the claim, and are constrained not only to accept the truth of the plaintiffs’ jurisdictional allegations, but also to construe all reasonable inferences to be drawn from those allegations in plaintiffs’ favor. Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 225 (2d Cir.2006) (citing Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130; Warth, 422 U.S. at 501-02, 95 S.Ct. 2197). If the facts alleged by the State are true, as the Court must accept at this point, then the State is currently suffering an injury in fact, and there is a causal connection between the government conduct complained of and the injury alleged. See Compl. [doc. # 81] ¶ 14 (“By denying Connecticut’s waiver requests, the Secretary is requiring Connecticut to expend substantial sums in excess of federal funding to comply with the [Act’s] mandates as interpreted by the Secretary and the Act.”); Brooklyn Legal Servs., at 227 (“[W]hether a plaintiff has standing will ‘depend[] considerabl