Pub. Citizen, Inc. v. Trump (297 F. Supp. 3d 6, 2018)

RANDOLPH D. MOSS, United States District Judge In this action, Plaintiffs Public Citizen, Inc., Natural Resources Defense Council, Inc. ("NRDC"), and Communication Workers of America, AFL-CIO ("CWA") challenge the lawfulness of Executive Order 13771, issued by President Trump on January 30, 2017, and two guidance documents issued by the Office of Management and Budget ("OMB") implementing the Executive Order. Pending before the Court are the government's motion to dismiss, Dkt. 15, and Plaintiffs' cross-motion for summary judgment, Dkt. 16.

The Executive Order imposes three new restrictions on the administrative process. It requires Executive Branch agencies to identify two existing regulations to be repealed for every new regulation, requires agencies to offset the private costs of compliance posed by new regulations by eliminating the costs associated with existing regulations, and imposes an annual regulatory cap (set at zero for 2017) on incremental regulatory costs that each agency may introduce. According to Plaintiffs, these requirements trammel on an array of federal statutes, all of which require federal agencies to consider statute-specific factors in deciding whether to promulgate or to repeal regulations, and none of which permits the implementing agencies-or the President-to premise those decisions on the adoption or repeal of other, unrelated regulations.

Before reaching the merits of Plaintiffs' challenge, however, the Court must first satisfy itself that it has Article III jurisdiction. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). As explained below, the Court concludes that Plaintiffs have failed to meet their burden of plausibly alleging or proffering facts that, if accepted as true, would establish that they have standing to sue. Plaintiffs approach the standing requirement from multiple tacks. They seek to establish "associational standing" by identifying an array of regulatory actions that, they contend, the Executive Order will likely delay or preclude and by arguing that their members will suffer harm as a result. But, as to some of those regulatory actions, they fail to identify particular members who will be harmed. As to others, they fail to allege facts sufficient to show that the relevant agency would have issued the rule absent the Executive Order. And, as to yet others, they fail plausibly to allege or otherwise to show that any delay of the regulatory action attributable to the Executive Order will substantially increase the risk that any of their members will be harmed or that any of their members will face a substantial probability of harm once such an increase in risk is taken into account. See Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin. , 489 F.3d 1279, 1295 (D.C. Cir. 2007).

Alternatively, Plaintiffs contend that they have "organizational standing" to sue-that is, that they have standing to sue in their own right. They allege, in particular, that Executive Order 13771 has a chilling effect on their missions to encourage agencies to adopt regulations designed to protect public health and safety (Public Citizen), to protect the environment (NRDC), and to protect workers' rights (CWA). Plaintiffs assert that, as things now stand, if they contemplate proposing a new rule, they must evaluate whether the cost of the new rule-the loss of two or more unknown existing rules-is worth the benefit of the new rule. The burden of merely considering the issue, however, is insufficient to establish organizational standing. And Plaintiffs do not assert that they have actually declined-or will actually decline-to pursue a new rule out of concern that the Executive Order will require the relevant agency to rescind two existing rules.

This is not to say that a plaintiff-or, indeed, that the present Plaintiffs-will never be able to establish standing to challenge the Executive Order. On the present record, however, the Court must conclude that it lacks jurisdiction. The Court, accordingly, will grant the government's motion to dismiss, Dkt. 15, and will deny Plaintiffs' motion for summary judgment, Dkt. 16.

I. BACKGROUND

A. Executive Order 13771

On January 30, 2017, the President issued Executive Order 13771, entitled " Reducing Regulation and Controlling Regulatory Costs." Exec. Order No. 13771, 82 Fed. Reg. 9339. The Executive Order imposes three new restrictions on the authority of agencies to adopt or to propose new regulations: the "two for one" requirement, an "offset" requirement, and an "annual cap" on the net costs of private compliance with covered regulations. Each of these requirements is discussed only briefly in the Executive Order, leaving it to the Director of OMB to flesh out the requirements-and exceptions-in guidance and in the course of implementing the Executive Order.

Under the "two for one" requirement, "whenever an executive department or agency ... publicly proposes for notice and comment or otherwise promulgates a new regulation," the agency must "identify at least two existing regulations to be repealed." Exec. Order No. 13771 § 2(a). This requirement works in tandem with the "offset" requirement, which requires agencies to 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 works in the aggregate and prohibits agencies from adopting new regulations that exceed their "total incremental cost allowance" for the year. Id. § 3(d). This cap, or total incremental cost allowance, is based on the costs of any new regulations adopted in the relevant year, less any cost savings achieved through the repeal of existing regulations. Id. The cap was set at zero for fiscal year 2017, id. § 2(b), and must be reset every year by the Director of OMB, id. § 3(d). The total cost allowance for the fiscal year may be zero, positive (i.e., permitting a net increase in total regulatory costs), or negative (i.e., requiring a net reduction in overall regulatory costs). Id. For 2018, the caps vary by agency from zero to negative $196 million in annualized costs. Office of Mgmt. & Budget, Regulatory Reform: Two-for-One Status Report and Regulatory Cost Caps 1-2 (2017) [hereinafter Two-for-One Report ].

The Executive Order states that it "shall be implemented consistent with applicable law" and 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 No. 13771 § 5. Similar provisos appear within particular provisions. See id. § 2(a) (two-for-one requirement applies "[u]nless prohibited by law"); id. § 2(c) (offset requirement applies "to the extent permitted by law" and any elimination of costs must comport "with the Administrative Procedure Act and other applicable law"). The Executive Order also exempts certain types of regulations and authorizes the OMB Director to exempt other "categor[ies] of regulations." Id. § 4.

B. OMB Guidance

OMB issued interim guidance on February 2, 2017, and followed up with final guidance on April 5, 2017. See Office of Mgmt. & Budget, Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 (2017) [hereinafter Interim Guidance]; Office of Mgmt. & Budget, Guidance Implementing Executive Order 13771 (2017) [hereinafter Final Guidance]. Several important clarifications and refinements are set forth in these guidance documents.

First, the Executive Order does not apply to all regulatory actions, but only to "significant regulatory action[s]" and "significant guidance document[s]." Final Guidance, Q & A 2. A regulatory action or guidance document is "significant" if it is likely to "[h]ave an annual effect on the economy of $100 million or more" or to meet other criteria. Exec. Order No. 12866 § 3(f), 3 C.F.R. 638 (1994). A "deregulatory action," in contrast, is "an action" that "has been finalized" and the "total costs" of which are "less than zero." Final Guidance, Q & A 4. Deregulatory actions need not qualify as "significant" and thus take a "wide[r] range" of forms than regulatory actions. Id.

Second, unlike prior executive orders, cf. Exec. Order No. 12866, Executive Order 13771 focuses only on compliance costs borne by regulated parties, without regard to the public benefit of the existing or proposed rule. Accordingly, a regulation that imposes $100 million in costs, but that saves $1 billion in losses, is not treated as generating a net savings of $900 million; rather, its adoption would be treated as a $100 million cost, and its repeal would count as $100 million in savings. See Final Guidance, Q & A 21, 32; Interim Guidance at 4. The guidance provides additional details on accounting. In calculating costs and savings for purposes of the Executive Order, agencies are required to determine the present value of the costs or savings of the regulatory action (or 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." Final Guidance, Q & A 8.

Third, the Executive Order recognizes that certain federal statutes prohibit agencies from considering costs in determining whether a significant regulatory action is warranted. With respect to those regulatory actions, the OMB guidance acknowledges that the Executive Order cannot-and does not-"change the agency's obligations under [such a] statute." Final Guidance, Q & A 18. But, even though agencies are not permitted to consider costs in deciding whether to promulgate these regulations, they are still "generally ... required to offset the costs of such regulatory actions through other deregulatory actions taken pursuant to statutes that do not prohibit consideration of costs." Id. Likewise, if an agency faces an imminent statutory or judicial deadline for taking a regulatory action, the Executive Order "does not prevent" the agency from taking the regulatory action in a timely manner, even if it cannot first satisfy the requirements of the Executive Order. Final Guidance, Q & A 33. The agency must, however, "offset [the] regulatory action[ ] as soon as practicable thereafter." Id.

Fourth, agencies are permitted to "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]." Final Guidance, Q & A 29. An agency that, for example, takes four deregulatory actions in fiscal year 1 may take two covered regulatory actions in year 1 or in future fiscal years. Id. "Similarly, if an agency issues two ... deregulatory actions with total cost savings of $200 million," and issues a "regulatory action with a cost of $150 million" in fiscal year 1, "the agency may bank the surplus cost savings of $50 million to offset the costs of another ... regulatory action" in a future fiscal year. Id. "To the extent practicable," however, agencies must take any required offsetting "deregulatory actions before or concurrently with the ... regulatory actions they are intended to offset." Final Guidance, Q & A 38.

Finally, as counsel for the government acknowledged at oral argument, neither the Executive Order nor the OMB guidance provides a clear mechanism for notifying members of the public whether and when a proposed (or possible) regulatory action might be delayed or abandoned due to the requirements of the Executive Order. See Dkt. 56 at 64 (Tr. Oral Arg. 64:7-22) ("I suspect [that information on delayed or abandoned regulatory actions] will not be public."). With respect to deregulatory actions, the Unified Agenda of Regulatory and Deregulatory Actions should "include, to the extent practicable, ... deregulatory actions that ... are sufficient to offset [any] regulatory actions" subject to the Executive Order. Final Guidance, Q & A 37. And when a regulatory action is allowed under the Executive Order, the Federal Register notice must indicate that the action is subject to the Executive Order. Id. But that Federal Register notice need not identify the required "offsetting ... deregulatory actions." Id. Furthermore, although the Executive Order requires that agencies identify offsetting deregulatory actions as a condition of taking new regulatory actions, the OMB guidance precludes agencies from relying on the Executive Order "as the basis or rationale, in whole or in part, for" taking the deregulatory action. Id. As a result, neither the Executive Order nor the OMB guidance provides a mechanism for notifying interested parties that an otherwise desirable regulation is being delayed or withheld in order to comply with the Executive Order or that a deregulatory action was initiated in order to comply with the Executive Order.

C. Procedural History

On February 8, 2017, Plaintiffs filed this action against the President, the Director of OMB, the heads of thirteen federal agencies, and the United States. Dkt. 1. Plaintiffs are Public Citizen, which is a national consumer advocacy group, NRDC, which is a national environmental and public health organization, and the CWA, which is an international labor union. Dkt. 14 at 4-7 (Am. Compl. ¶¶ 12-14). Each of these organizations has hundreds of thousands of members and seeks to advance its members' interests by, among other things, securing legal and regulatory protections through litigation and advocacy before federal agencies. Id. (Am. Compl. ¶¶ 12-14).

Two months after Plaintiffs filed suit, the government moved to dismiss the complaint for lack of standing and for failure to state a claim, Dkt. 9, and fourteen states filed an amicus brief in support of the government addressing the merits of the dispute, Dkt. 12. In response, Plaintiffs filed an amended complaint as of right that, among other things, added further allegations relating to their standing to sue. Dkt. 14 (Am. Compl.). The government has now renewed its motion to dismiss, Dkt. 15, and Plaintiffs have moved for summary judgment, Dkt. 16. The fourteen states have also renewed their amicus filing, Dkt. 19, and other amici have filed in support of the government, Dkt. 39, and in support of Plaintiffs, Dkt. 25; Dkt. 26; Dkt. 31; Dkt. 40.

The centerpiece of Plaintiffs' case-and the foundation for their five claims-is their contention that Executive Order 13771 necessarily "impose[s] rulemaking requirements beyond and in conflict with the requirements of the" Administrative Procedure Act ("APA") and "the statutes from which ... federal agencies derive their rulemaking authority." Dkt. 14 at 4 (Am. Compl. ¶ 8); see id. at 17-43 (Am. Compl. ¶¶ 63-124) (describing potential applications of the Executive Order that demonstrate "how the ... Order directs agencies to act unlawfully and why it is unconstitutional"). As a result, Plaintiffs allege, the Executive Order (1) exceeds the President's authority under Article II and usurps Congress's power to legislate; (2) conflicts with the President's duty to execute legislation under the Take Care Clause; and (3) directs federal agencies to take action that is ultra vires. Id. at 43-46 (Am. Compl. ¶¶ 125-51). Plaintiffs further allege (4) that the OMB guidance documents are also ultra vires and (5) that the guidance documents violate the APA. Id. at 47-49 (Am. Compl. ¶¶ 152-65). Plaintiffs seek a declaration that the Executive Order is unconstitutional and that it and the OMB guidance are invalid, and they seek an injunction barring the OMB Director and various agencies from implementing the Executive Order. Id. at 49 (Am. Compl. Prayer).

II. LEGAL STANDARD

"The party invoking federal jurisdiction bears the burden of establishing" each of the elements of Article III standing, although "the manner and degree of evidence required" varies with "the successive stages of the litigation." Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct" will often suffice. Id. ; see also Owner-Operator Indep. Drivers Ass'n v. Dep't of Transp. , 879 F.3d 339, 346-47 (D.C. Cir. 2018). But, "[w]here a motion to dismiss a complaint present[s] a dispute over the factual basis of the court's subject matter 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). Rather, the Court "must go beyond the pleadings and resolve any disputed issues of fact ... necessary to a ruling [ ]on the motion to dismiss;" in doing so, however, the Court must also ensure that Plaintiffs have been accorded "ample opportunity to secure and [to] present evidence relevant to the existence of jurisdiction." Id. (internal quotation marks and citations omitted). Prior to discovery, the Court must accord Plaintiffs "the benefit of all reasonable inferences," and, in the absence of "evidentiary offerings," the Court must avoid "assessing the credibility of [their] allegations." Id.

III. ANALYSIS

"Because Article III limits federal judicial jurisdiction to cases and controversies, see U.S. Const. art. III, § 2, federal courts are without authority" to decide disputes unless the plaintiff has standing-that is, " 'a personal stake in the outcome of the controversy [sufficient] to warrant his invocation of federal-court jurisdiction.' " Chamber of Commerce v. EPA , 642 F.3d 192, 199 (D.C. Cir. 2011) (quoting Summers v. Earth Island Inst. , 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ). As the Court will discuss below, standing doctrine includes various permutations. Across all contexts, however, "the irreducible constitutional minimum of standing contains three elements." Lujan , 504 U.S. at 560, 112 S.Ct. 2130. First, the plaintiff must allege (and must eventually prove) that she has suffered, or faces an imminent threat of suffering, an "injury in fact." Id. Conjectural or hypothetical threats of injury will not suffice. Id. Second, the plaintiff must allege (and must eventually prove) facts sufficient to establish a "causal connection between [that] injury and the conduct complained of." Id. In other words, 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. (internal quotation marks, alterations, and citation omitted). Third, the injury must be redressable "by a favorable decision." Id. at 561, 112 S.Ct. 2130. Again, speculation will not suffice; rather, the plaintiff must allege (and must eventually prove) that it is "likely" that judicial intervention will rectify or prevent the asserted wrong. Id.

When an association seeks to invoke the jurisdiction of a federal court, it can establish standing in one of two ways. It can assert "associational standing" to sue on behalf of its members. See Hunt v. Wash. State Apple Advert.Comm'n , 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Or it can assert "organizational standing" to sue on its own behalf. See People for the Ethical Treatment of Animals v. USDA , 797 F.3d 1087, 1093 (D.C. Cir. 2015) [hereinafter PETA ]. Here, Plaintiffs attempt to satisfy both of these standards. The Court will first address Plaintiffs' array of arguments for associational standing and will then turn to their single theory of organizational standing.

A. Associational Standing

"Even in the absence of injury to itself, an association may have standing solely as the representative of its members." Warth v. Seldin , 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In Hunt v. Washington State Apple Advertising Commission , the Supreme Court set forth the criteria for associational standing. 432 U.S. 333, 97 S.Ct. 2434. Under the so-called Hunt test, a plaintiff at the motion to dismiss stage must plausibly allege or otherwise offer facts sufficient to permit the reasonable inference (1) that the plaintiff has at least one member who "would otherwise have standing to sue in [her] own right;" (2) that "the interests" the association "seeks to protect are germane to [its] purpose;" and (3) that "neither the claim asserted nor the relief requested requires the participation of [the] individual members in the lawsuit." Id. at 343, 97 S.Ct. 2434. The government does not dispute that Plaintiffs' allegations satisfy the second and third elements of the Hunt test, and the Court (which must satisfy itself that it has jurisdiction) agrees that neither factor poses a hurdle.

In contrast, the first element-the requirement that at least one member of the association have standing to sue in her own right-is not so easily satisfied. In an impressive effort to do so, Plaintiffs point to over a dozen putative regulatory actions that they contend would benefit their members and that, they further assert, have been or will be delayed, weakened, or barred as a result of Executive Order 13771 and the OMB guidance. For ease of discussion, the Court will consider these putative regulatory actions in categories corresponding to the reasons why Plaintiffs fail to meet the first element of the Hunt test.

1. Regulatory Actions Affecting Unidentified Members

At the threshold, the first element of the Hunt test requires that the plaintiff-association identify at least one specific member who has suffered, or is likely to suffer, an injury in fact. Summers , 555 U.S. at 498, 129 S.Ct. 1142 ; see also Sierra Club v. Morton , 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). "[I]t is not enough" for the association "to aver that unidentified members have been injured." Chamber of Commerce , 642 F.3d at 199.

With respect to several of the putative regulatory actions Plaintiffs identify, they have made no effort-either in their complaint or in the multiple declarations they have submitted-to identify a specific member who has suffered, or who is likely to suffer, an injury in fact due to the Executive Order's effect on the regulatory action. As to some of these putative regulatory actions, Plaintiffs might nonetheless contend that the consequences are so sweeping that "there is a substantial likelihood that at least one member may have suffered an injury-in-fact." Am. Chemistry Council v. Dep't of Transp. , 468 F.3d 810, 820 (D.C. Cir. 2006). But, as the Court of Appeals has cautioned, "[i]t is not enough to show ... that there is a substantial likelihood that at least one member [of the association] has standing." Id.

Instead, "[a]t the very least, the identity of the party suffering an injury in fact must be firmly established." Id. As a result, Plaintiffs cannot rely on these putative regulatory actions to satisfy the first element of the Hunt test.

2. Unspecified Regulatory and Deregulatory Actions

Plaintiffs also assert that their members will be injured by agencies' decisions to forgo or weaken potential regulatory actions and by the repeal of existing regulations. With respect to foregone or weakened regulatory actions, Plaintiffs have not alleged or otherwise proffered any facts identifying specific regulatory initiatives that have been, or are likely to be, discarded or weakened as a result of Executive Order 13771. Quoting a former Environmental Protection Agency ("EPA") Administrator, Plaintiffs do contend that it is "likely" that "the EPA and other agencies will stop seeking new regulations so they can protect existing rules." Dkt. 47 at 23. The Court must, of course, accept well-pleaded factual allegations as true. Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015). It may not, however, assume the truth of "mere conclusory statements," Williams v. Lew , 819 F.3d 466, 472 (D.C. Cir. 2016), and it must reject vague and "overly speculative" predictions about "future events," Arpaio , 797 F.3d at 21. The former EPA Administrator's expectation and the other assertions that Plaintiffs offer are both speculative and conclusory. In the absence of some greater specificity, predictions that agencies are likely to stop issuing new regulations in order to comply with the Executive Order's requirements are inadequate to establish associational standing.

Plaintiffs also allege that members of Public Citizen (including two identified members) will suffer injury because the Executive Order will cause agencies to "repeal regulations that protect their concrete interests," Dkt. 14 at 4-5 (Am. Compl. ¶ 12), and that members of the CWA (including two identified members) will suffer injury because the Executive Order will "caus[e] agencies" to "repeal regulations that protect the members' health and safety at work" or that otherwise protect "workplace rights," id. at 7 (Am. Compl. ¶ 14). See also id. at 5-6 (Am. Compl. ¶ 13) (alleging that agencies will "repeal ... important health [and] environmental regulations" due to the Executive Order). Neither the complaint nor the declarations offered by the two members of Public Citizen and the two members of the CWA, however, identify any specific regulations that have been repealed, or are likely to be repealed, as a result of the Executive Order. See Dkt. 16-7 at 2-3 (Fleming Decl. ¶¶ 4-6) (Public Citizen member asserting only that the Executive Order will likely cause agencies "to delay, weaken, or forgo" regulations); Dkt. 16-10 at 2-3 (T. Weissman Decl. ¶¶ 4-6) (same); Dkt. 16-5 at 2 (Abbott Decl. ¶ 7) (CWA member asserting only that the Executive Order may cause agencies to delay, weaken, or forgo "a new standard for workplace exposure to infectious diseases"); Dkt. 16-6 at 2-5 (Bauer Decl. ¶¶ 6-8) (CWA member asserting only that various workplace protections would not have been obtained "without the existence of the [Occupational Health and Safety Administration's] Lead Standard and CWA making sure Verizon was complying with the law"); see also Dkt. 16-2 at 3 (LeGrande Decl. ¶ 8) (noting that Bauer "would be harmed by the repeal of such an existing standard" but failing to aver that such a repeal was likely to occur). Absent greater specificity, such predictions are too abstract and too speculative to support standing. See Arpaio , 797 F.3d at 21.

In any event, it appears that Plaintiffs have abandoned their contention that their members will be injured by the repeal of beneficial regulations pursuant to the Executive Order. The government's motion to dismiss argues, for example, that Plaintiffs' asserted concern about the repeal of favorable regulations "is entirely speculative." Dkt. 15-1 at 28. Plaintiffs, in turn, offer no response to this argument, and, indeed, make no mention of their allegation that specific members will be harmed by the repeal of regulations. See Dkt. 47 at 19-30 (omitting mention of injury due to repeal); see also Dkt. 16 at 26-30 (same). The government, in reply, concludes that "Plaintiffs [have] abandon[ed] any claim of injury on behalf of their members from the potential future repeal of regulations." Dkt. 51 at 13. The Court agrees. See Local Civil Rule 7(b) ; see also Sandoval v. U.S. Dep't of Justice , 296 F.Supp.3d 1, 11-13, 2017 WL 5075821, at *6 (D.D.C. Nov. 2, 2017).

3. Delay of Regulatory Actions

The lion's share of Plaintiffs' efforts is directed at showing that Executive Order 13771 has already delayed-and will continue to delay-the issuance of new regulatory actions. Plaintiffs offer eight examples of putative regulatory actions that, they say, have been or will be delayed due to the Executive Order:

(1) An unspecified regulation on greenhouse gas emissions. See Dkt. 47 at 25; Dkt. 16-13 at 9 (Winegrad Decl. ¶ 18).

(2) A citizen petition filed by Public Citizen requesting that the Food and Drug Administration ("FDA") "withdraw approval of the use of medically important antibiotics in livestock and poultry." Dkt. 16-3 at 5-6 (R. Weissman Decl. ¶¶ 12-13).

(3) A request for information on occupational exposure to infectious diseases in healthcare settings from the Occupational Safety and Health Administration ("OSHA"). See Dkt. 14 at 23-25 (Am. Compl. ¶¶ 78, 81); Dkt. 16 at 28; Dkt. 47 at 21-22.

(4) A proposed rule banning the use of certain chemicals in paint remover from the EPA. See Dkt. 14 at 28-30 (Am. Compl. ¶¶ 91, 95); Dkt. 47 at 22-23.

(5) A proposed rule setting energy efficiency standards for residential conventional cooking products from the Department of Energy. See Dkt. 14 at 34-36 (Am. Compl. ¶¶ 106, 109); Dkt. 47 at 20-21, 25.

(6) A proposed rule mandating vehicle-to-vehicle ("V2V") communications technology on light vehicles from the National Highway Traffic Safety Administration ("NHTSA"). See Dkt. 14 at 19-20 (Am. Compl. ¶¶ 68, 69); Dkt. 47 at 25.

(7) A proposed rule mandating speed-limiting devices on certain commercial vehicles from NHTSA. See Dkt. 14 at 18-20 (Am. Compl. ¶¶ 67, 69); Dkt. 47 at 25.

(8) A proposed rule requiring certain railroads that transport petroleum oil to develop oil spill response plans from the Pipeline and Hazardous Materials Safety Administration ("PHMSA"). See Dkt. 14 at 31-33 (Am. Compl. ¶¶ 98, 102); Dkt. 47 at 25.

Plaintiffs contend that the delay of each of these potential or proposed rules will prolong their members' exposure to the risks the putative rules are designed to mitigate, such as death, bodily injury, or financial loss. Dkt. 47 at 24-25. And they argue that these risks would likely be redressed by a favorable decision. Id. at 29-30.

Plaintiffs are correct that injuries that have not yet occurred, but that are "threatened," may at times satisfy the injury-in-fact requirement. Warth , 422 U.S. at 499, 95 S.Ct. 2197. A threatened injury "may suffice" if it "is 'certainly impending,' or [if] there is a 'substantial risk' that the harm will occur." Susan B. Anthony List v. Driehaus , --- U.S. ----, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Clapper v. Amnesty Int'l USA , 568 U.S. 398, 409, 414 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ); see also Attias v. Carefirst, Inc. , 865 F.3d 620, 626-27 (D.C. Cir. 2017) ("[T]he [Supreme] Court [has] clarified that a plaintiff can establish standing by satisfying either the 'certainly impending' test or the 'substantial risk' test."). But "[a]llegations of possible future injury" premised on "attenuated chain[s] of inferences" will not suffice. Clapper , 568 U.S. at 409, 414 n.5, 133 S.Ct. 1138 (internal quotation marks and citation omitted); see also Sierra Club v. EPA , 755 F.3d 968, 973 (D.C. Cir. 2014) ("[Plaintiffs] claiming increased health risks [must] demonstrate a substantial probability that they will be injured." (internal quotation marks, alterations, and citations omitted)). The key to shifting an alleged "injury from 'conjectural' to 'imminent,' " is the ability plausibly to aver or show that "there is a substantial probability of injury." Chamber of Commerce , 642 F.3d at 200 (internal quotation marks, alterations, and citations omitted).

Plaintiffs cannot plausibly allege that the delay in finalizing the regulatory actions at issue here will certainly cause their members injury; instead the delay will, at most, increase the risk that the identified individuals might someday suffer an injury. Although the D.C. Circuit has recognized that "increases in risk can at times be 'injuries in fact' sufficient to confer standing," Nat. Res. Def. Council v.EPA , 464 F.3d 1, 6 (D.C. Cir. 2006), the governing standard is not easily met. In evaluating a claim of standing based on an increased risk of harm, the Court must begin by "consider[ing] the ultimate alleged harm"-such as death, bodily injury, or financial loss-as the "concrete and particularized injury," and must then "determine whether the increased risk of such harm makes injury to an individual citizen sufficiently imminent for standing purposes." Attias , 865 F.3d at 627 (quoting Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 915 (D.C. Cir. 2015) ). To satisfy this test, Plaintiffs must aver facts or proffer evidence sufficient to show both a "sub stantially increased risk of harm" and a "substantial probability of harm with that increase taken into account." See Food & Water Watch , 808 F.3d at 914 (quoting Pub. Citizen , 489 F.3d at 1295 ). Moreover, because increased-risk-of-harm cases often depend on the government's regulation of someone else, see Pub. Citizen , 489 F.3d at 1295, they implicate a further level of uncertainty: the asserted injury "hinge[s] on the response of the regulated ... third party ... and perhaps on the response of others as well," Lujan , 504 U.S. at 562, 112 S.Ct. 2130. To demonstrate that "the [government's] actual action has caused the substantial risk of harm," Clapper , 568 U.S. at 414 n.5, 133 S.Ct. 1138, the plaintiff must, therefore, allege or show that the relevant third parties will react to the challenged action in such manner as to create that substantial risk, Lujan , 504 U.S. at 562, 112 S.Ct. 2130. In considering such a causal chain, the Court must reject as overly speculative "predictions of future injury that are not normally susceptible of labelling as 'true' or 'false.' " Arpaio , 797 F.3d at 21 (internal quotation marks and citations omitted).

In the present context, these requirements mean that Plaintiffs must plausibly allege or show, first , that the relevant agency intended to issue the regulation in question; second , that Executive Order 13771 will likely cause the agency to delay issuance of the regulation; third , that-with the relevant period of delay taken into account-an identified member of one of the associations will face a substantial probability of a concrete injury; and, finally , that the period of delay attributable to the Executive Order will substantially increase that risk of harm. As explained below, the Court concludes that Plaintiffs have not plausibly alleged that the relevant agencies otherwise intended to issue two of the eight regulatory actions they identify, and their allegations regarding a third putative regulatory action only barely, if at all, clear this first hurdle. With respect to the remaining five putative regulatory actions, however, Plaintiffs have met that burden, and have also plausibly alleged that the Executive Order has delayed, or is likely to delay, the regulatory action. They have not, however, plausibly alleged that at least one of their members faces a substantial risk of a concrete harm due to the delay in finalizing any of the identified regulatory actions.

a. Whether the Agency Otherwise Intended To Take the Regulatory Action

Plaintiffs must first plausibly allege or show that the putative regulatory actions that they have identified would have been taken in the absence of Executive Order 13771. That is a difficult task because it implicates "how independent decisionmakers"-here, executive agencies-"will exercise their judgment." Clapper , 568 U.S. at 413, 133 S.Ct. 1138. The task is not impossible, however. Although mere speculation will not suffice, id. at 414, 133 S.Ct. 1138, a plaintiff can establish the requisite likelihood of third-party action by relying on (1) the third party's past practices, see Susan B. Anthony , 134 S.Ct. at 2345 ; (2) the third party's representations concerning its future conduct, id. ; and (3) "experience and common sense," Attias , 865 F.3d at 628 (quoting Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). In considering any such evidence or allegations, however, the Court must take care not to place itself in the role of policymaker or to second-guess the "broad and legitimate discretion" of the other branches of government. DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 345, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (quoting ASARCO Inc. v. Kadish , 490 U.S. 605, 615, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (opinion of Kennedy, J.)). Accordingly, in the absence of clear markers-such as proposed rules or agency pronouncements-the Court should avoid speculating about how governmental entities "will exercise their discretion." Clapper , 568 U.S. at 412, 133 S.Ct. 1138 ; see id. at 410-12, 133 S.Ct. 1138 (injury depended in part on whether the Attorney General and Director of National Intelligence would decide to surveil plaintiffs' foreign contacts); DaimlerChrysler , 547 U.S. at 344, 126 S.Ct. 1854 (injury depended in part on "how [state] legislators [would] respond to a reduction in revenue"); R.J. Reynolds Tobacco Co. v. FDA , 810 F.3d 827, 830 (D.C. Cir. 2016) (injury depended on whether the FDA would propose and issue a rule adverse to plaintiffs' economic interests). Applying these standards, the Court will consider, in turn, each of the specific regulatory actions Plaintiffs have identified.

First , Plaintiffs contend that at least one member of NRDC is suffering a harm due to the delay of "rules to curb climate change." Dkt. 47 at 25. NRDC member Gerald Winegrad avers that "global warming and [the] consequent sea level rise could deprive [him] of water supply, use of [his] land and home, and recreational opportunities." Dkt. 16-13 at 8-9 (Winegrad Decl. ¶ 17). He "believe[s] that regulation of greenhouse gas emissions is important to ... prevent exacerbating the global warming problem and its effects on [him] and [his] property." Id. at 9 (Winegrad Decl. ¶ 18). Finally, he expresses concern that the Executive Order "will reverse, halt or delay these crucial regulations, to [his] detriment." Id. (Winegrad Decl. ¶ 18). Plaintiffs, however, have not identified any proposed rule or other specific putative regulatory action that might address Winegrad's concerns. As a result, the Court cannot determine whether any identifiable regulatory action has been-or likely will be-delayed due to the Executive Order and, if so, how that delay might have affected Winegrad. Any injury allegedly stemming from the prospect that the Executive Order has delayed the issuance of unspecified regulations relating to a broadly defined area of concern is too abstract and speculative to support standing.

Second , Plaintiffs rely on a citizen petition in which Public Citizen asked the FDA to "withdraw approval of the use of medically important antibiotics in livestock and poultry." Dkt. 16-3 at 5-6 (R. Weissman Decl. ¶ 12). Public Citizen member Dr. Anthony So, a physician, attests that "the use of antibiotics in animal feed increases [his] risk of infection and lowers the effectiveness of available treatments for infections from antibiotic-resistant bacteria." Dkt. 16-8 at 2-3 (So Decl. ¶ 7). Public Citizen member Terri Weissman shares that concern, averring that she and her children "would benefit directly" if the FDA granted Public Citizen's petition. Dkt. 16-10 at 2-3 (T. Weissman Decl. ¶ 6). Plaintiffs, however, have not alleged or provided any evidence that the FDA ever intended to grant or seriously considered granting the petition. Plaintiffs jump over this antecedent question, arguing instead that delay is inevitable. Delay, however, is possible only if the FDA was otherwise inclined to withdraw its approval for the use of medically important antibiotics in livestock and poultry.

Third , Plaintiffs contend that OSHA "is developing a standard to protect healthcare employees and employees in other high-risk environments from exposure to dangerous pathogens" and that the Executive Order "will necessarily delay issuance of [any such] new health or safety standards." Dkt. 47 at 21-22. Unlike the prior two examples, Plaintiffs' complaint and other submissions suggest that OSHA was poised to take this regulatory action prior to issuance of the Executive Order. Their complaint alleges that OSHA was in the process of developing the infectious disease standard and that the agency anticipated issuing a proposed rule in October 2017. Dkt. 14 at 23 (Am. Compl. ¶ 78). Public records, moreover, support that allegation. In May 2010, OSHA issued a request for information "on occupational exposure to infectious agents in settings where healthcare is provided ... and [in other] healthcare-related settings." Request for Information on Infectious Diseases, 75 Fed. Reg. 24,835, 24,835 (May 6, 2010). After reviewing the comments, meeting with stakeholders, and completing a Small Business Regulatory Enforcement Fairness Act review, OSHA announced in the spring of 2016 that it was "developing a standard to ensure that employers establish ... comprehensive infection control program[s] and control measures to protect employees from ... exposure[ ] to pathogens that can cause significant disease." Spring 2016 Agenda. At that time, OSHA anticipated that it would issue a Notice of Proposed Rulemaking ("NPRM") in March 2017, id. , although the agency subsequently pushed this date back to October 2017, Fall 2016 Agenda. After Executive Order 13771 issued, however, the infectious disease standard was moved to the "Long-Term Actions" section of the Unified Agenda, Spring 2017 Agenda, where it remains, Fall 2017 Agenda.

It is not obvious what follows from these facts and allegations, and neither party has briefed the issue. On one hand, there is evidence that OSHA intended to issue an NPRM (and, presumably, eventually a final rule) before the Executive Order was issued. On the other hand, the rulemaking process is inherently inchoate until an agency issues an NPRM, which then serves as a benchmark for agency action and triggers the requirement that the agency offer a reasoned explanation if it ultimately decides not to go forward as proposed. See Williams Nat'l Gas Co. v. FERC , 872 F.2d 438, 450 (D.C. Cir. 1989). The decision whether to issue an NPRM, moreover, is often policy-laden and, in that respect, beyond the judicial ken.

Because the parties have not addressed this issue, the Court will assume (without deciding) for present purposes that the infectious disease standard would have issued but for the Executive Order. As explained below, however, that assumption will prove insufficient to permit Plaintiffs to establish standing using the infectious disease standard as their hook.

Finally , the remaining five potential regulatory actions more easily clear this first hurdle. Each involves a proposed rule, and the NPRMs shed significant light on "whether the [agencies] [intended to] issue ... final rule[s]." R.J. Reynolds , 810 F.3d at 830. An NPRM typically reflects an agency's preliminary assessment that the proposed rule-or some "logical outgrowth" of it-should be adopted. Envtl. Integrity Project v. EPA , 425 F.3d 992, 996 (D.C. Cir. 2005). To be sure, an NPRM "in no way [binds] the agency to promulgate a final rule if further reflection, or changed circumstances," persuade the agency "that no regulatory change [is] warranted." Williams Nat'l Gas , 872 F.2d at 450. But, as noted above, any such withdrawal is subject to judicial review and must be supported by "a reasoned explanation." Id. Moreover, because the NPRM must include "the terms or substance of the proposed rule or a description of the subjects and issues involved," 5 U.S.C. § 553(b)(3), it also provides the Court-and the public-information on "what [such a rule] would say," R.J. Reynolds , 810 F.3d at 830. There is, accordingly, at least a plausible basis to conclude that the relevant agencies actually intended to finalize the five rules that they proposed.

b. Whether Executive Order 13771 Has Caused Delay

Plaintiffs devote most of their attention to the next question: whether the delay in finalizing the OSHA infectious disease standard and the five proposed rules was caused by Executive Order 13771. See Dkt. 47 at 19-30. The Court must, of course, avoid any undue intrusion on the discretion of the Executive Branch to set policy priorities, see Allen v. Wright , 468 U.S. 737, 759-61, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ; Pub. Citizen , 489 F.3d at 1291-92, and "may not assume a particular exercise of [an agency's] discretion in establishing standing," DaimlerChrysler , 547 U.S. at 346, 126 S.Ct. 1854. That does not mean, however, that the Court must disregard evidence or plausible allegations that the Executive Order has caused delay.

With respect to the OSHA standard and the five proposed rules, there is some rule-specific evidence that Executive Order 13771 has contributed to delay. As to the OSHA standard, prior to issuance of the Executive Order, OSHA indicated that it was developing a standard and that it anticipated issuing an NPRM in October 2017. Fall 2016 Agenda. After the Executive Order issued, however, the standard was moved to the "Long-Term Actions" section of the Unified Agenda. Spring 2017 Agenda. Similarly, after the Executive Order issued, three of the proposed rules Plaintiffs have identified were moved from the "Final Rule Stage" to the "Long-Term Actions" section of the Unified Agenda. Fall 2017 Agenda. A fourth rule was scheduled for final action in December 2016, Fall 2016 Agenda, but, after the Executive Order issued, the window for final action was pushed back to September 2017, Spring 2017 Agenda, and then pushed back further to accommodate the anticipated issuance of a Supplemental NPRM in October 2018, Fall 2017 Agenda. Finalization of the fifth proposed rule has been successively postponed from July 2017 to December 2017 to July 2018. Fall 2016 Agenda; Spring 2017 Agenda; Fall 2017 Agenda.

To be sure, these delays might be attributed to a change in administration and a shift in policy priorities, without regard to the Executive Order. The government's own statements, however, arguably undercut this theory. Three of the NPRMs that Plaintiffs identify, for example, were proposed by the Department of Transportation. See Federal Motor Vehicle Safety Standards; V2V Communications, 82 Fed. Reg. 3854 (proposed Jan. 12, 2017) [hereinafter V2V Rule]; Federal Motor Vehicle Safety Standards; Federal Motor Carrier Safety Regulations; Parts and Accessories Necessary for Safe Operation; Speed Limiting Devices, 81 Fed. Reg. 61,942 (proposed Sept. 7, 2016) [hereinafter Speed-Limiting Device Rule]; Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains, 81 Fed. Reg. 50,068 (proposed July 29, 2016) [hereinafter Oil Spill Response Plan Rule]. As is typical when a change in administration occurs, the Department announced in January 2017 that "many rule schedules [would] need to be revised" to permit review "by new [Department] leadership." U.S. Dep't of Transp., Significant Rulemaking Report Archive (Feb. 9, 2018). The next month, however, the Department offered a different explanation for suspending the rulemaking schedules: to permit "evaluat[ion] in accordance with" Executive Order 13771. Id. The Department issued similar notices every month for the next five months. Id. Currently, the "[n]ext [a]ction[s]" on two of the proposed rules (the V2V communications technology rule and the speed-limiting device rule) are listed as "[u]ndetermined," and the third rule has been pushed back to July 2018 (the railroad oil spill response plan rule). Fall 2017 Agenda.

The likelihood that the Executive Order will cause delay, moreover, is highlighted by information provided by the White House regarding implementation of the Executive Order. In fiscal year 2017, 635 planned regulatory actions were "withdrawn," 244 were "made inactive," and 700 were "delayed." White House, Fact Sheet: President Donald J. Trump Is Delivering on Deregulation (Dec. 14, 2017) [hereinafter Deregulation Fact Sheet ]. Over that same period, federal "[a]gencies issued 67 deregulatory actions and only 3 regulatory actions," yielding a ratio of 22 deregulatory actions for each regulatory action.

Two-for-One Report at 1. The 67 deregulatory actions taken in 2017 yielded regulatory cost savings of $570 million per year ($8.1 billion in lifetime cost savings) across all agencies. Id. For fiscal year 2018, the Executive Branch has "committed to cutting" $686.6 million per year ($9.8 billion in lifetime cost savings) across all agencies. Deregulation Fact Sheet .

Although these statistics would appear to leave room for new regulatory actions, the numbers must be considered in light of the fact that the Executive Order requires an offset for the costs of a new rule, without regard to the benefits of that rule. Although undoubtedly costly, NHTSA's proposed rule on V2V communications technology illustrates the obstacle posed by the Executive Order. The proposed rule would "require all new light vehicles to be capable of [V2V] communications, such that they [can] send and receive Basic Safety Messages to and from other vehicles." V2V Rule, 82 Fed. Reg. at 3854. When it proposed the rule, NHTSA asserted that V2V technology "has the potential to revolutionize motor vehicle safety ... [and to] reduce the number and severity of motor vehicle crashes." Id. at 3855. The agency estimated that the proposed rule would, on an annual basis, save $54.7 to $73.9 billion, id. at 3996, while costing $2.2 to $5 billion, id. at 3981. Under the Executive Order, however, only the costs are relevant. As noted above, the sum of the annual cost savings generated by all deregulatory actions across all agencies in the eight months from the end of January (when the Executive Order issued) through the end of September (when the fiscal year ended) tallied only $570 million. See Two-for-One Report at 1. At that rate, agencies would have achieved $855 million in cost savings had the Executive Order been in effect for a full year. Comparing the estimated costs of the V2V rule ($2.2 to $5 billion annually) with the estimated cost savings from all deregulatory actions taken in one fiscal year ($855 million annually) suggests that it would take the Executive Branch as a whole two or three years to accumulate cost savings sufficient to offset even the most conservative estimated cost of the V2V rule. The time needed to accumulate the necessary cost savings would grow by an order of magnitude, moreover, if the Department of Transportation were left to fend for itself: at its current rate of cutting costs, the Department would need almost seven decades to offset the costs of the V2V rule. See Two-for-One Report at 2 (noting that the Department generated $21.8 million in annual cost savings in the final eight months of fiscal year 2017, which equates to $32.7 million if the Executive Order had been in effect for a full fiscal year).

Although this may be an extreme example, it shows that the Executive Order meaningfully restricts agencies' latitude to issue rules and, absent waivers, is likely to delay "significant regulatory actions." Nor is the Court convinced that the authority of the Director of OMB to grant waivers adequately answers this concern. To be sure, that authority does introduce some uncertainty, but, at least to date, there is no indication that the Director has exercised his waiver authority with respect to the six regulatory actions Plaintiffs have identified, none of which has moved forward since the Executive Order took effect.

One might reasonably argue that Plaintiffs can only speculate that the delay in issuance of the identified rules has been caused by the Executive Order. It is conceivable, for example, that the delay stems from greater scrutiny of regulatory action or skepticism that the federal government should try to fix every problem. That, however, is not what the government has said. No one has said, for example, that the V2V rule is a bad idea or that it is too costly. Executive Order 13771, in contrast, speaks directly to the issue and says that agencies may not take new regulatory actions without first identifying deregulatory actions sufficient to offset the relevant cost. Exec. Order No. 13771 § 2(c). And "experience and common sense" suggest that compliance with that mandate will, in fact, cause delay. Attias , 865 F.3d at 628 (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ).

Finally, statements from Executive Branch officials corroborate Plaintiffs' theory that the offset requirement will likely cause delay. After the Executive Branch released statistics on the Executive Order's implementation in fiscal year 2017, the Administrator of the Office of Information and Regulatory Affairs delivered a press briefing on the results. See White House, Press Briefing by Office of Information and Regulatory Affairs Administrator Neomi Rao on the Unified Agenda of Regulatory and Deregulatory Actions (Dec. 14, 2017). When asked why the number of deregulatory actions (67) was "so small," the Administrator replied:

[D]eregulation ... takes time .... [I]f we're doing things in a way that is careful and consistent with law, it takes time to undo the [existing regulations]. Because for many rules that are undone, you need a new rule, and then you need a new regulatory impact assessment, and you need to create a rule that then can pass through the [procedural] standards.

Id. In other words, identifying offsetting deregulatory actions and executing those actions "takes time."

This combination of factors-Executive Branch statements regarding the Executive Order, a common-sense understanding of the effect of the offset requirement, see Iqbal , 556 U.S. at 679, 129 S.Ct. 1937, and the actual delay of the six regulatory actions at issue here-belie the government's suggestion that Plaintiffs' concerns about delay are too speculative to survive a motion to dismiss, see Dkt. 15-1 at 30. It is at least plausible to conclude that the Executive Order has resulted in some measure of delay with respect to the six regulatory actions that Plaintiffs have identified.

c. Whether Plaintiffs' Members Face a Substantial-and Substantially Increased-Risk of Harm

Although Plaintiffs have plausibly alleged delay, they devote scant attention to the core of the injury-in-fact requirement: actual or imminent harm. See Lujan , 504 U.S. at 560, 112 S.Ct. 2130. Plaintiffs do not allege that any of their members have suffered an actual injury but, instead, premise their claim of associational standing on the theory that at least one member faces an increased risk of harm-such as death, bodily injury, or financial loss-due to the delay caused by the Executive Order. Increased-risk-of-harm theories are often difficult to substantiate, given uncertainty about future events and uncertainty about the "degree" of risk the law demands. Va. State Corp. Comm'n v. FERC , 468 F.3d 845, 848 (D.C. Cir. 2006). Here, the challenge that Plaintiffs face is particularly daunting because they seek to set aside the Executive Order to facilitate the adoption of regulations by agencies in the hopes of compelling third parties to act in a manner that might mitigate risks posed to their members. Cf. Lujan , 504 U.S. at 562, 112 S.Ct. 2130.

Although the standard is a demanding one, the D.C. Circuit "has not closed the door to all increased-risk-of-harm cases." Pub. Citizen , 489 F.3d at 1295. As noted above, the Court of Appeals "ha[s] allowed standing when there was at least both (i) a substantially increased risk of harm and (ii) a substantial probability of harm with that increase taken into account." Id. Precedent provides no definitive guidance about the meaning of "substantial" in this context. Food & Water Watch , 808 F.3d at 914-15. "In applying the ... standard," however, courts must remain "mindful ... that the constitutional requirement of imminence ... necessarily compels a very strict understanding of what increases in risk and overall risk levels can count as 'substantial.' " Pub. Citizen , 489 F.3d at 1296. As explained below, the Court concludes that Plaintiffs have not plausibly alleged or shown that the government's delay in finalizing the six regulatory actions has given, or is likely to give, rise to the type of injury required to satisfy the increased-risk-of-harm standard. The Court will address each of the six putative regulatory actions in turn.

OSHA Infectious Disease Standard

The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. , authorizes the Secretary of Labor to issue occupational safety or health standards. 29 U.S.C. § 655(b). Once the Secretary has identified a "significant risk," he has a "duty to ... add[ ] measures so long as they afford [a] benefit and are feasible." Bldg. & Constr. Trades Dep't, AFL-CIO v. Brock , 838 F.2d 1258, 1269 (D.C. Cir. 1988). In light of this responsibility, OSHA requested information in May 2010 regarding "occupational exposure to infectious agents in settings where healthcare is provided ... and [in other] healthcare-related settings." Request for Information on Infectious Diseases, 75 Fed. Reg. at 24,835. By Spring 2016, OSHA announced that it was "developing a standard to ensure that employers establish ... comprehensive infection control program[s] and control measures to protect employees from ... exposure[ ] to pathogens that can cause significant disease." Spring 2016 Agenda. The agency specified that it anticipated issuing an NPRM in March 2017, id. , although that date was later pushed back to October 2017, Fall 2016 Agenda. After the Executive Order issued, however, the proposed regulatory action was reclassified from the "Proposed Rule Stage" to "Long-Term Actions," and issuance of the NPRM was postponed indefinitely. Spring 2017 Agenda; Fall 2017 Agenda.

Plaintiffs contend that at least two of their members face an increased risk of harm as a result of this delay. Denise Abbott is a member of the CWA and is employed as a registered nurse in an emergency department. Dkt. 16-5 at 1-2 (Abbott Decl. ¶¶ 1, 4). She attests that her work "involves exposure to many and varied infectious diseases;" that adoption of "the proposed OSHA Infectious Disease Standard" would "minimize risks associated with the introduction of and exposure to such infectious diseases;" and, finally, that "by delaying ... a new standard for workplace exposure to infectious diseases, Executive Order 13771 will negatively impact [her] ability to avoid such exposure." Id. at 2 (Abbott Decl. ¶¶ 6-7). Dr. Jonathan Soverow, in turn, attests that he is a member of Public Citizen; that he works as a cardiologist at a hospital; that his work exposes him "to many and varied infectious agents that can cause disease;" that adoption of "the proposed OSHA Infectious Disease Standard" would "minimize" his risk; and that the Executive Order, "by delaying ... a new standard for workplace infectious diseases, ... will negatively impact [his] ability to avoid such exposure." Dkt. 16-9 at 1-2 (Soverow Decl. ¶¶ 1, 3-5).

Although "experience and common sense," Iqbal , 556 U.S. at 679, 129 S.Ct. 1937, along with evidence cited by OSHA, 75 Fed. Reg. at 24,836, support the conclusion that hospital workers face a greater risk of exposure to infectious agents than other members of the public, that premise is insufficient to satisfy the increased-risk-of-harm test. Plaintiffs must plausibly aver (and must eventually prove) that the delay of the OSHA standard occasioned by the Executive Order-however long that delay may last-will substantially increase the risk that Abbott or Soverow will contract an infectious disease and that, after that increased risk is taken into account, Abbott or Soverow will face a substantial probability of contracting an infectious disease. That undertaking is never an easy one, but it borders on the impossible in the present context, where the Court does not have the text of a proposed rule before it. The Court, as a result, does not know what the putative NPRM would say and, even if an earlier draft of the NPRM might be produced, the Court has no way