                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA


 SIERRA CLUB

                 Plaintiff,
 v.
                                     No. 17-cv-2700 (EGS)
 RICK PERRY, Secretary,
 U.S. Department of Energy,

                 Defendant.


                         MEMORANDUM OPINION

      In this action the plaintiff, Sierra Club, asks the Court

to declare unlawful the failure of Defendant Rick Perry, in his

official capacity as the Secretary of the United States

Department of Energy (the “Secretary”), to promulgate final

regulations establishing standards for energy efficiency in

manufactured housing pursuant to the Energy Independence and

Security Act of 2007 (“EISA”), 42 U.S.C. § 17071(a)(1), and

pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 706(1). In the EISA, Congress mandated that these standards

“shall” be established by the Secretary “[n]ot later than 4

years after December 19, 2007[.]” 42 U.S.C. § 17071(a)(1). The

Secretary does not deny that he was required by statute to

publish final regulations on or before December 19, 2011.

Rather, the Secretary contends that Sierra Club lacks standing

to bring this lawsuit.
     Pending before the Court is the Secretary’s motion to

dismiss the amended complaint. Upon careful consideration of the

Secretary’s motion, the opposition, and the reply thereto, the

applicable law, and the entire record, the Secretary’s motion to

dismiss is DENIED. For the reasons stated below, the Court finds

that Plaintiff Sierra Club has standing to sue on behalf of its

members.

I.   Background

     Roughly six percent of all homes in the United States are

manufactured homes. 1 Energy Conservation Standards for

Manufactured Housing, 81 Fed. Reg. 39756, 39762 (June 17, 2016).

Manufactured housing is an accessible and affordable housing

option, but owners and residents of manufactured homes have

higher utility bills than those living in traditional “site-

built and modular homes in part due to different criteria for

energy conservation and variability among building codes and

industry practice.” Id.


1 Congress has defined a “manufactured home” as:
     [A] structure, transportable in one or more sections,
     which, in the traveling mode, is eight body feet or more
     in width or forty body feet or more in length, or, when
     erected on site, is three hundred twenty or more square
     feet, and which is built on a permanent chassis and
     designed to be used as a dwelling with or without a
     permanent foundation when connected to the required
     utilities, and includes the plumbing, heating, air-
     conditioning,    and   electrical   systems    contained
     therein[.]
42 U.S.C. § 5402(6).
                                2
       A. Energy Independence and Security Act

     In 2007, Congress enacted the EISA to, among other things,

“increase the efficiency of products, buildings, and vehicles,”

with an energy code improvements provision for manufactured

homes. Pub. L. 110–140, 121 Stat 1492 (Dec. 19, 2007) (codified

at 42 U.S.C. § 17071(a)(1)). Section 17071(a)(1) provides: “Not

later than 4 years after December 19, 2007, the Secretary shall

by regulation establish standards for energy efficiency in

manufactured housing.” 42 U.S.C. § 17071(a)(1). The Secretary

must establish these standards “after . . . notice and an

opportunity for comment by manufacturers of manufactured housing

and other interested parties” and “consultation with the

Secretary of Housing and Urban Development, who may seek further

counsel from the Manufactured Housing Consensus Committee.” Id.

§ 17071(a)(2). Further, the statute requires:

          The energy conservation standards established
          under this section shall be based on the most
          recent version of the International Energy
          Conservation    Code    [“IECC”]    (including
          supplements), except in cases in which the
          Secretary finds that the code is not cost-
          effective, or a more stringent standard would
          be more cost-effective, based on the impact of
          the code on the purchase price of manufactured
          housing and on total life-cycle construction
          and operating costs.

Id. § 17071(b)(1) (footnote omitted). Finally, the IECC is

revised “every three years.” Building Energy Codes 101: An

Introduction, 10, U.S. Dep’t of Energy (May 2010) (“The IECC

                                3
applies to both residential and commercial buildings.”),

https://www.energycodes.gov/sites/default/files/becu/BECU Codes 101.pd

f.

     More than nine years ago, the United States Department of

Energy (“DOE”) took steps to fulfill its obligations under the

EISA by attempting to promulgate the required regulations. See,

e.g., Am. Compl., ECF No. 14 ¶ 15; Energy Efficiency Standards

for Manufactured Housing, 75 Fed. Reg. 7556-01, 7556 (Fed. 22,

2010); 81 Fed. Reg. at 39756. In February 2010 and June 2016,

DOE published two different advanced notices of proposed

rulemaking and requested public comments. See 75 Fed. Reg. at

7556; see also 81 Fed. Reg. at 39756. After receiving and

considering the comments, DOE submitted the draft notices to the

White House Office of Information and Regulatory Affairs

(“OIRA”) in 2011 and 2016. Def.’s Mem. of Points & Authorities

in Support of Def.’s Mot. to Dismiss, ECF No. 18-1 at 7-10

[hereinafter “Def.’s Mem.”]. 2 The draft notices did not make it

through OIRA’s review process, and DOE withdrew them on March

13, 2014 and January 31, 2017, respectively. Id. at 8, 10. 3 The


2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
3 On August 3, 2018, DOE announced a proposed rule and solicited
public input to develop energy conservations standards. See
Energy Conservation Program: Energy Conservation Standards for
Manufactured Housing, 83 Fed. Reg. 38073 (Aug. 3, 2018). The
comment period ended on September 17, 2018. See Energy
                                  4
Secretary contends that “DOE’s rulemaking efforts on energy

efficiency for manufactured housing remain active and ongoing.”

Id. at 10. Nonetheless, in the Secretary’s own words, “DOE has

yet to publish final regulations[.]” Id. at 5.

       B. Plaintiff Sierra Club and Its Members

     Sierra Club is a national, non-profit environmental

organization. Am. Compl., ECF No. 14 ¶ 4; see also Ex. 9, ECF

No. 22-1 at 46, ¶ 5 [hereinafter “Levenshus Decl.”]. It has

822,930 members in all fifty states and Puerto Rico. Ex. 2, ECF

No. 22-1 at 7, ¶ 4 [hereinafter “Fashho Decl.”]. According to

Sierra Club, its “purposes include enhancing public health and

the environment and practicing and promoting the responsible use

of the Earth’s ecosystems and resources.” Am. Compl., ECF No.

14 ¶ 4. It states that “Club members are greatly concerned about

air quality and energy efficiency[.]” Fashho Decl. ¶ 2.

     Sierra Club identifies some of its members as residents,

owners, and prospective purchasers of manufactured homes. E.g.,

Ex. 3, ECF No. 22-1 at 11-12, ¶¶ 5-8 [hereinafter “Fineran




Efficiency Standards for Manufactured Housing, eRulemaking
Program, https://www.regulations.gov/docket?D=EERE-2009-BT-BC-
0021 (last visited Mar. 5, 2019). The Court, sua sponte, takes
judicial notice of the fact that DOE published this proposed
rule in the Federal Register after the parties fully briefed the
Secretary’s motion to dismiss. See Fed. R. Evid. 201 (b) & (c);
see also Oceana, Inc. v. Pritzker, No. CV 08-1881(PLF), 2014 WL
3907795, at *1 (D.D.C. Aug. 12, 2014) (courts may take judicial
notice of the fact that an agency issued a proposed rule).
                                5
Decl.”]; Ex. 5, ECF No. 22-1 at 26-28, ¶¶ 4-6, 13 [hereinafter

“Flournoy Decl.”]; Ex. 8, ECF No. 22-1 at 40-42, ¶¶ 9-12

[hereinafter “Land Decl.”]. It alleges that these members

include individuals “who reside in older manufactured homes

needing replacement and those who regularly purchase

manufactured homes as part of their business or who plan to

purchase a manufactured home[.]” Am. Compl., ECF No. 14 ¶ 30. It

avers that “[e]fficency standards save energy and lower energy

bills, saving consumers money over the life of the manufactured

home,” Levenshus Decl. ¶ 8, and “standards for new manufactured

homes will assist Sierra Club’s members as consumers” to

(1) “reduce[] the members’ consumption of electricity and

natural gas[,]; (2) “ensur[e] that there is a wide range of

efficient models readily available[,]” and (3) “push the market

to produce higher efficiency, premium models.” Id. ¶ 10.

       C. Procedural History

     On December 18, 2017, Sierra Club filed this action against

the Secretary under the EISA and the APA seeking declaratory

relief and an order to compel “the Secretary to complete a final

rule establishing standards for energy efficiency in

manufactured housing in accordance with section 413 of EISA, 42

U.S.C. § 17071, pursuant to an expeditious deadline established

by this Court[.]”. Compl., ECF No. 1 at 9 (“Relief Requested”).



                                6
On April 2, 2018, the Secretary moved to dismiss the initial

complaint. Def.’s Mot. to Dismiss, ECF No. 12.

     On April 23, 2018, Sierra Club filed an amended complaint

seeking declaratory and injunctive relief. See generally Am.

Compl., ECF No. 14. Sierra Club asserts a single claim under

Section 17071 (a)(1) of the EISA and Section 706(1) of the APA,

alleging that the “Secretary’s failure to complete a final rule

establish[ing] standards for energy efficiency in manufactured

housing . . . constitutes an agency action unlawfully withheld

under the [APA].” Am. Compl., ECF No. 14 ¶ 41 (citation and

internal quotation marks omitted). Sierra Club seeks a

declaration stating the same. Id. at 10 (“Relief Requested”).

Sierra Club filed a response to the Secretary’s motion to

dismiss on April 30, 2018. Pl.’s Resp., ECF No. 15. On May 3,

2018, the Court denied as moot the Secretary’s first motion to

dismiss in light of the amended complaint. May 3, 2018 Minute

Order.

     On May 29, 2018, the Secretary moved to dismiss the amended

complaint on the basis that the Court lacked jurisdiction over

Sierra Club’s claim because it failed to establish standing. See

Def.’s Mot. to Dismiss, ECF No. 18; see also Def.’s Mem., ECF

No. 18-1. Sierra Club filed its opposition on June 29, 2018. 4


4 On the same day, Sierra Club filed a Motion for Partial Summary
Judgment on Standing and Liability and a Request for a Hearing
                                7
Pl.’s Opp’n, ECF No. 22. The Secretary filed his reply on July

20, 2018. Def.’s Reply, ECF No. 26. The Secretary’s motion is

ripe and ready for the Court’s adjudication.

II.   Legal Standard

        A. Rule 12(b)(1)

      A federal district court may only hear a claim over which

it has subject-matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court’s

jurisdiction. See Fed. R. Civ. P. 12(b)(1). On a motion to

dismiss for lack of subject-matter jurisdiction, the plaintiff

bears the burden of establishing that the Court has

jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561,

(1992). In evaluating the motion, the Court must accept all of

the factual allegations in the complaint as true and give the

plaintiff the benefit of all inferences that can be drawn from

the facts alleged. See Thomas v. Principi, 394 F.3d 970, 972




regarding the same under Local Civil Rule 7(f). Pl.’s Mot. for
Partial Summ. J., ECF No. 23. On July 5, 2018, the Court
temporarily stayed the summary judgment briefing schedule
pending the resolution of the Secretary’s forthcoming motion to
hold in abeyance the summary judgment briefing while the Court
considered the Secretary’s motion to dismiss. Minute Order of
July 5, 2018. After considering the Secretary’s motion to hold
in abeyance the summary judgment briefing, ECF No. 27, and
Sierra Club’s response, ECF No. 28, the Court denied without
prejudice and held in abeyance Sierra Club’s partial motion for
summary judgment, allowing it to refile the motion if the Court
denied the Secretary’s motion to dismiss. August 16, 2018 Minute
Order.
                                 8
(D.C. Cir. 2005). However, the Court is “not required . . . to

accept inferences unsupported by the facts alleged or legal

conclusions that are cast as factual allegations.” Cartwright

Int’l Van Lines, Inc. v. Doan, 525 F. Supp. 2d 187, 193 (D.D.C.

2007) (internal quotation marks and citation omitted).

       B. Standing

     Article III of the United States Constitution restricts the

power of federal courts to the adjudication of actual “Cases”

and “Controversies.” U.S. Const. Art. III, § 2; see also Lujan,

504 U.S. at 559-60. This requirement has given rise to doctrines

“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 (1975). “In order to establish the existence of a

case or controversy within the meaning of Article III, [a] party

must meet certain constitutional minima,” including a

“requirement that the party. . . has standing to bring the

action.” Gettman v. Drug Enf’t Admin., 290 F.3d 430, 433 (D.C.

Cir. 2002). Indeed, “standing is an essential and unchanging

part of the case-or-controversy requirement of Article III,”

Lujan, 504 U.S. at 560, and it is an essential inquiry into

whether the plaintiff is entitled to have the Court decide the

merits of the dispute. Warth, 422 U.S at 498.

     To establish the “irreducible constitutional minimum” of

standing, a plaintiff must demonstrate three prongs: (1) “injury

                                9
 in fact,” which is (a) concrete and particularized and

 (b) actual or imminent; (2) that there is a causal connection

 between the complained of conduct and the injury alleged that is

 fairly traceable to the defendant; and (3) that it is likely,

 and not merely speculative, that a favorable decision will serve

 to redress the injury alleged. See Lujan, 504 U.S. at 560–61,

 (internal quotation marks and citations omitted).

III.   Analysis

       The Secretary contends that Sierra Club lacks both

 associational and organizational standing. Def.’s Mem., ECF No.

 18-1 at 12-19. The Secretary argues that Sierra Club fails to

 allege a sufficient injury-in-fact to serve as the basis for

 Article III standing under both theories. Id. at 12. According

 to the Secretary, Sierra Club identifies no economic injury,

 health injury, or procedural injury to support standing. Id. at

 14-21; see also Def.’s Reply, ECF No. 26 at 1. The Secretary

 contends that “Sierra Club vaguely alleges the ongoing lack of

 energy-efficiency standards causes harm to the ‘consumer,

 [procedural,] environmental, and health interests’ of it and

 certain of its members.” Def.’s Mem., ECF No. 18-1 at 10

 (quoting Am. Compl., ECF No. 14 ¶ 38).

       Sierra Club maintains that it has standing to sue on behalf

 of its members. See Pl.’s Opp’n, ECF No. 22 at 18-19. Sierra

 Club avers that “DOE’s delay [in establishing energy-efficiency

                                 10
standards for manufactured housing] harms the interests of [its]

members as consumers of manufactured housing by restricting

their opportunities to purchase energy efficient manufactured

homes[.]” Pl.’s Opp’n, ECF No. 22 at 19. It further alleges that

the lack of these standards “extends and worsens health and

welfare harms endured by Sierra Club members who are impacted by

the production of the energy wasted in inefficient manufactured

homes” and “it deprives Sierra Club and its members of

procedural rights that Congress granted them to protect their

concrete interests.” Id.

     Because Sierra Club is an association, it may sue on behalf

of its members if the Court finds that it meets the Article III

standing requirements. See Sierra Club v. Fed. Energy Regulatory

Comm’n, 827 F.3d 59, 65-66 (D.C. Cir. 2016). The Court will

consider whether Sierra Club has satisfied the requirements for

associational standing.

       A. Associational Standing

     “[A]n association may have standing to assert the claims of

its members even where it has suffered no injury from the

challenged activity.” Hunt v. Wash. State Apple Adver. Comm’n,

432 U.S. 333, 342 (1977) (citations omitted). A plaintiff has

associational standing to sue on behalf of its members if:

“(1) at least one of its members would have standing to sue in

his own right, (2) the interests the association seeks to

                               11
protect are germane to its purpose, and (3) neither the claim

asserted nor the relief requested requires that an individual

member of the association participate in the lawsuit.” Sierra

Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002).

     The Secretary does not dispute that Sierra Club satisfies

the last two requirements, see generally Def.’s Mem., ECF No.

18-1; Def.’s Reply, ECF No. 26, and it is clear that Sierra

Club satisfies those requirements. Specifically, Sierra Club

seeks the establishment of energy-efficiency standards in

manufactured housing to protect its individual members’

interests and afford them with (1) the option of accessible

and affordable new manufactured homes and (2) the benefits of

lower utility bills and less exposure to air pollutants and

other environmental harms. Pl.’s Opp’n, ECF No. 22 at 20-21.

Its members’ interests are germane to Sierra Club’s purposes,

which include “the protection and improvement of air quality

and public health and the reduction of adverse environmental

impacts from energy production and usage.” Id. at 20.

Furthermore, there is no reason presented in this case to

require one of its members to participate in this lawsuit. See

Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin.,

793 F.2d 1322, 1329 n.44 (D.C. Cir. 1986) (noting that “Courts

have required individual participation in circumstances where


                               12
there are conflicts of interest within the organization or

when a specific factual setting is needed to illuminate the

issues.”). Having found that Sierra Club meets the last two

requirements of associational standing, the Court next

addresses Sierra Club’s members’ three alleged injuries in turn,

and then addresses the causation and redressability prongs.

    Here, “the crux of the standing issue” is “whether the

members of [Sierra Club] would have standing to sue in their

own right.” Id. On the basis of declarations submitted by its

members, Sierra Club has alleged three forms of concrete harm:

(1) economic injury due to the lost opportunity to purchase new,

energy-efficient manufactured homes; (2) health injury from

exposure to air pollutants and certain harmful emissions in the

absence of energy-efficiency standards; and (3) procedural

injury as a result of DOE’s failure to promulgate final

regulations mandated by Congress. Pl.’s Opp’n, ECF No. 22 at 21-

32. As the Supreme Court instructed in Lujan, “[a]t the pleading

stage, general factual allegations of injury resulting from the

defendant’s conduct may suffice, for on a motion to dismiss

[courts] presum[e] that general allegations embrace those




                               13
specific facts that are necessary to support the claim.” 504

U.S. at 561 (citation and internal quotation marks omitted).

              1.    Economic Injury

     Sierra Club satisfies the injury requirement in the first

prong of associational standing because at least three of its

members are prospective purchasers and consumers of energy-

efficient manufactured homes who have alleged a sufficient

injury-in-fact. See, e.g., Land Decl. ¶¶ 9-12; Flournoy Decl. ¶¶

4-6; Fineran Decl. ¶¶ 5-8. These members have alleged that they

either cannot find, or it is difficult to find, energy-

efficient manufactured homes, and their ability to search for

such homes will continue to be adversely impacted by DOE’s

inaction. See, e.g., Land Decl. ¶¶ 9-12; Flournoy Decl. ¶¶ 4-6;

Fineran Decl. ¶¶ 5-8.

     The Secretary contends that Sierra Club has not

demonstrated standing based on an economic injury because it

cannot show “any particular member is unable to find a readily

available efficient manufactured home on the current market[.]” 5



5 The Secretary relies on Coalition for Mercury-Free Drugs for
this proposition. See Def.’s Reply, ECF No. 26 at 3-4. There,
the D.C. Circuit held that the plaintiffs alleging physical harm
from vaccines with mercury-based preservative thimerosal lacked
standing to challenge the agency’s rule finding that those
vaccines were safe because the “complaint and declarations [did]
not allege that mercury-free vaccines [were] ‘not readily
available’” and those vaccines were “unreasonably priced as a
result of [the agency’s] decision to allow thimerosal-preserved
                                14
Def.’s Reply, ECF No. 26 at 1-2; see also Def.’s Mem., ECF No.

18-1 at 16. The Secretary argues that Sierra Club’s members’

“possible” purchases of manufactured homes constitute a “defect”

that is fatal to standing. See Def.’s Mem., ECF No. 18-1 at 16.

     The Secretary’s arguments are unavailing. Sierra Club is in

a similar position as the organizations found to have standing

in Center for Auto Safety v. National Highway Traffic Safety

Administration, 793 F.2d at 1332. In that case, the United

States Court of Appeals for the District of Columbia Circuit

(“D.C. Circuit”) held that standing was appropriate where the

plaintiffs-organizations alleged “an injury to its members, who

[were] interested in purchasing the most fuel-efficient vehicles

possible” and that the agency’s low “standards [would] diminish

the types of fuel-efficient vehicles and options available.” Id.




vaccines[.]” Coal. for Mercury-Free Drugs, 671 F.3d at 1282-83.
Here, Sierra Club addresses the Secretary’s concerns by arguing
that “the absence of DOE standards leaves many potential
purchasers looking for an energy efficient manufactured home
with no options meeting their needs[.]” Pl.’s Opp’n, ECF No. 22
at 22 (emphasis added). A fair reading of the operative
complaint and the declarations would suggest that energy-
efficient manufactured homes are not readily available. See,
e.g., Am. Compl., ECF No. 14 ¶ 32 (“Such standards ensure that
Plaintiff’s members will find efficient homes readily available
and will not have to pay a premium for them.”); Land Decl. ¶¶ 9-
10 (explaining the difficulty of finding an energy-efficient
manufactured home); Ex. 12, ECF No. 22-1 at 145 (“I would
consider buying a new, energy efficient manufactured home if it
were easy to get one built the way I think they should be.”)
[hereinafter “Stevens Decl.”]; Flournoy Decl. ¶¶ 3-6.


                               15
The D.C. Circuit concluded that the plaintiffs-organizations

alleged a “distinct injury to their members.” Id. at 1334.

     The parties do not dispute that the D.C. Circuit “has

permitted consumers of a product to challenge agency action that

prevented the consumers from purchasing a desired product.”

Coal. for Mercury-Free Drugs, 671 F.3d at 1281; see also

Orangeburg, S.C. v. Fed. Energy Regulatory Comm’n, 862 F.3d

1071, 1077 (D.C. Cir. 2017) (holding that plaintiff “suffered an

injury-in-fact because it [could] not purchase wholesale power

on its desired terms.”). In Orangeburg, the D.C. Circuit made

clear that “[t]he lost opportunity to purchase a desired product

is a cognizable injury, even though [the plaintiff] can

purchase, and has purchased, wholesale power from another

source.” 862 F.3d at 1078 (emphasis in original); see also

Competitive Enter. Inst. v. Nat’l Highway Traffic Safety Admin.,

901 F.2d 107, 112–13 (D.C. Cir. 1990) (finding that organization

members would suffer a cognizable “injury in the form of a

restricted opportunity to purchase fuel-efficient vehicles”

where “[i]n affidavits, . . . members state[d] that they have

looked for, but have been unable to find new cars of large size,

such as station wagons, in a price range they could afford.”).

The same is true here.

     Sierra Club points out that “the price mark-ups for the

non-standard energy efficient features make [energy-efficient

                               16
manufactured homes] difficult to afford.” Pl.’s Opp’n, ECF No.

22 at 21 (citing Fineran Decl. ¶¶ 5-8; Land Decl. ¶¶ 9-12). At

least one member of Sierra Club avers that she and her husband

purchased a manufactured home in 2018 after finding “a

manufactured home dealer with a home specifically retrofitted

for energy efficiency.” Land Decl. ¶¶ 9-10. She states that

“finding it was like finding a needle in a haystack.” Id. ¶ 10.

According to her, she would like to purchase a second

manufactured home for their rural property in Texas, but “it is

so difficult to find one that is energy-efficient[.]” Id. ¶ 12.

Other members also plan to purchase new, energy-efficient

manufactured homes in the future, but they allege that it is

difficult to find them. See, e.g., Ex. 4, ECF No. 22-1, at 18, ¶

15 (“Sierra Club members . . . will acquire . . . manufactured

housing[.]”); Flournoy Decl. ¶ 5; Fineran Decl. ¶ 6.

     The Secretary urges the Court to not consider these

declarations because they fail to allege “any concrete plans to

purchase a manufactured home by any specific date.” Def.’s Mem.,

ECF No. 18-1 at 16. The Secretary’s suggestion that the

declarations must include specific details about the potential

purchases has been foreclosed by D.C. Circuit precedent. See

Sierra Club v. Fed. Energy Regulatory Comm’n, 827 F.3d at 66-68

(holding that organization member would suffer a cognizable harm

based on his statement that he planned to visit an affected area

                               17
in the future). The D.C. Circuit has made clear that a

plaintiff’s statement of “definite dates is not necessary to

establish Article III standing where, as here,” members of

Sierra Club attest in sworn statements that they intend to

purchase new, energy-efficient manufactured homes. Id. at 68

(citation omitted).

     Sierra Club’s members have alleged an economic injury that

is “concrete” and “particularized” because it “actually

exist[s]” and impacts the members “in a personal and individual

way.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). The

lost opportunity to purchase new, energy-efficient manufactured

homes of their choice is concrete and particularized. See

Competitive Enter. Inst., 901 F.2d at 113 (“[A] lost opportunity

to purchase vehicles of choice is sufficiently personal and

concrete to satisfy Article III requirements.”). Furthermore,

the lack of standards for energy efficiency in manufactured

housing leaves these members with increased manufactured home

energy use and the financial burden of higher monthly utility

expenses. See 81 Fed. Reg. at 39759-60.

     Sierra Club’s members’ economic injury is “actual [and]

imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at

560 (citation and internal quotation marks omitted). Sierra

Club contends that its members “have searched and are

searching for manufactured homes to purchase” and “each home

                               18
they view is unlawfully not subject to the energy efficient

regulations Congress required.” Pl.’s Opp’n, ECF No. 22 at 25

(emphasis in original). Such economic harm is real and

imminent. See Orangeburg, 862 F.3d. at 1079 (concluding that

plaintiff “demonstrated an ‘imminent’ or ‘certainly impending’

risk of losing out on the opportunity to purchase its desired

product” due in part to the federal commission’s “long delay

and continued inaction”); cf. Flaherty v. Bryson, 850 F. Supp.

2d 38, 48 (D.D.C. 2012) (finding that economic harm was actual

and imminent where “[p]laintiffs claim[ed] that their ability to

fish striped bass for sport or business has been, and will

continue to be, harmed by the state of the Atlantic herring

fishery because adequate conservation measures to protect the

herring upon which striped bass feed have not been adopted.”).

Accordingly, Sierra Club has demonstrated that its members

have suffered an economic injury.

             2.     Health Injury

     Sierra Club alleges that standards for energy efficiency in

manufactured housing will “benefit [its] members living,

working, and engaging in outdoor activities in communities with

harmful levels of air pollution and in communities where natural

gas and other fuels are extracted, produced, and transported.”

Am. Compl., ECF No. 14 ¶ 35; see also Fisher Decl. ¶ 9 (citing


                               19
research that shows manufactured homes are “often sited in areas

zoned for commercial and industrial use (rather than

residential) and are thus disproportionately impacted by

environmental harms.”). At least seven members of Sierra Club

aver in declarations that their exposure to air pollution and

harmful emissions negatively impacts their health. See, e.g.,

Land Decl. ¶¶ 3-8; Ex. 1, ECF No. 22-1 at 3-5 [hereinafter

“Blake Decl.”]; Ex. 6, ECF No. 22-1 at 31-32 [hereinafter

“Frantz Decl.”; Ex. 7, ECF No. 22-1 at 34-36 [hereinafter “Guldi

Decl.”]; Ex. 10, ECF No. 22-1 at 138-40 [hereinafter “McNall

Decl.”]; Ex. 11, ECF No. 22-1 at 142-43 [hereinafter “Nipp

Decl.”]; Ex. 13, ECF No. 22-1 at 148-49 [hereinafter “Stewart

Decl.”].

     For example, Sierra Club member Shirley McNall states that

her home is “within one mile of [twenty-five] gas wells[,]”

McNall Decl. ¶ 4, and the “emissions from the gas well are

harming [her] health.” Id. ¶ 6. According to her, she “suffered

a hydrogen sulfide ‘hit’” on her property from the pollution.

Id. ¶ 7. She goes on to explain that her “legs began to wobble,

[her] throat became sore, [her] tongue was beginning to swell,

and [she] became extremely confused.” Id. She maintains that

“[t]he delay of publishing these energy efficiency standards and

resulting increase in demand for natural gas threaten [her]

family’s health and [her] own.” Id. ¶ 13.

                               20
     The Secretary asks the Court to find that “[t]hese alleged

injuries are entirely too vague[.]” Def.’s Mem., ECF No. 18-1 at

18; see also Def.’s Reply, ECF No. 26 at 6-7. The Court,

however, finds that these members’ declarations sufficiently

demonstrate a concrete injury to their health from exposure to

air pollutants and other harmful emissions. See Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,

183 (2000) (holding that statements from organization members

who lived near contaminated areas with harmful pollutants

“adequately documented injury in fact”).

     Sierra Club’s members have also demonstrated a concrete,

particularized, and imminent health injury. See, e.g., Spokeo,

136 S. Ct. at 1548; Lujan, 504 U.S. at 560. As previously

stated, seven members allege that their exposure to air

pollutants and other harmful emissions is negatively impacting

their health due to the lack of standards for energy-efficiency

in manufactured housing. This is “the kind of conduct that the

suit seeks to enjoin” and there is “a real and immediate threat

that the harm-producing conduct will recur” without the energy-

efficiency standards. Coal. For Mercury-Free Drugs, 671 F.3d at

1280.

             3.     Procedural Injury

     Finally, Sierra Club alleges that the Secretary’s failure

to promulgate regulations pursuant to the EISA deprives it and

                               21
its members of “procedural rights and protections to which they

would otherwise be entitled[.]” Am. Compl., ECF No. 14 ¶ 37.

Sierra Club argues that Congress granted its members these

procedural rights, including the right to challenge the agency’s

final action, “to protect their concrete interests.” Pl.’s

Opp’n, ECF No 22 at 29-30. And Sierra Club asserts that the

Secretary’s failure to act deprives it and its members of the

right to have updated “standards within one year after each

future edition of the IECC, in compliance with [Section

17071(b)(3).]” Id. at 30.

     The Secretary contends that “these allegations are not

enough to establish standing[,]” because the rulemaking

procedures identified by Sierra Club were “not designed to

protect any identified concrete interest, nor has Sierra Club

shown that the failure to adhere to those procedures creates a

substantial risk to such an interest.” Def.’s Mem., ECF No. 18-1

at 19-20. The Secretary maintains that Sierra Club does not have

a procedural right since “DOE has not violated any of the

rulemaking procedures identified by Sierra Club because those

procedures have yet to be triggered.” Id. at 20. The Secretary

maintains that Sierra Club has not identified a “ripe”

procedural injury. Id. at 21.

     An association need only make a showing of “concrete harm”

to enforce the procedural rights of its members, see Lujan, 504

                                22
U.S. at 573 n.8, and demonstrate “a causal relationship between

the agency [in]action and the alleged injuries.” Ctr. for Law &

Educ. v. Dep’t of Educ., 396 F.3d 1152, 1160 (D.C. Cir. 2005).

Thus, “this Court must only determine whether the [Secretary]

failed to comply with [his] statutory mandate, and if so,

whether there is a substantial probability that the

[Secretary’s] failure to comply caused [Sierra Club’s] members

to be denied” regulations establishing energy-efficiency

standards for manufactured homes. U.S. Women’s Chamber of

Commerce v. U.S. Small Bus. Admin., No. 1:04-CV-01889, 2005 WL

3244182, at *9 (D.D.C. Nov. 30, 2005) (emphasis in original)

(citing Fla. Audubon Soc’y v. Bentsen, 94 F. 3d 658, 669 (D.C.

Cir. 1996)). Indeed, courts in this Circuit have found that the

deprivation of a member’s procedural rights can establish

associational standing where an agency fails to adhere to its

Congressional mandate. See, e.g., Air All. Houston v. U.S. Chem.

& Safety Hazard Investigation Bd., No. 17-CV-02608 (APM), 2019

WL 450677, at *8-9 (D.D.C. Feb. 4, 2019) (holding that an

organization member had a procedural right based on an agency’s

failure to promulgate regulations mandated by Congress); U.S.

Women’s Chamber of Commerce, 2005 WL 3244182 at *8-10 (finding

that an association could enforce the procedural rights of its




                               23
members as a result of an agency’s failure to timely complete

its congressionally mandated obligations).

     An individual may “enforce procedural rights . . . so long

as the procedures in question are designed to protect some

threatened concrete interest of his that is the ultimate basis

of his standing.” Lujan, 504 U.S. at 573 n. 8. Here, Sierra

Club’s members have alleged a concrete, particularized, and

actual procedural injury. Sierra Club member Shirley McNall

alleges a concrete health injury because she lives near gas

wells, and she avers that the emissions from those wells are

harming her health. See McNall Decl. ¶¶ 4, 6. Sierra Club member

Karla Land alleges a real and impending economic injury because

she asserts that it has been and continues to be difficult to

find a new manufactured home with energy-efficient features. See

Land Decl. ¶¶ 9-12. In attempting to promulgate regulations

under the EISA, DOE explained that the proposed energy

conservation standards would reduce air pollutants and

contribute to making manufactured homes more energy efficient.

See 81 Fed. Reg. at 39759-60. Accordingly, the Secretary’s

failure to establish the required regulations under the EISA has

resulted in a concrete, particularized, and actual procedural

harm to Sierra Club’s members.

     Sierra Club alleges that its members’ concrete interests

are frustrated by the Secretary’s delay in promulgating

                                 24
regulations and failure to establish standards as required by

the EISA. Am. Compl., ECF No. 14 ¶ 38. The Court finds that the

Secretary has compromised Sierra Club’s members’ “concrete and

particularized procedural rights,” U.S. Women’s Chamber of

Commerce, 2005 WL 3244182 at *10, because it is clear that the

Secretary failed to establish regulations for energy-efficiency

standards mandated by Congress, and it is substantially probable

that the Secretary’s failure to establish the standards has

caused Sierra Club’s members’ concrete injury. See Massachusetts

v. EPA, 549 U.S. 497, 517–18 (2007) (procedural-rights plaintiff

“has standing if there is some possibility that the requested

relief will prompt the injury-causing party to reconsider the

decision that allegedly harmed the litigant.”).

     The Court rejects the Secretary’s argument that Sierra Club

has not identified a ripe procedural injury. See Def.’s Mem.,

ECF No. 18-1 at 21. Sierra Club asserts a single claim under 5

U.S.C. 706(1) for the Secretary’s delays and failure to complete

a final rule establishing standards for energy efficiency in

manufactured housing. Am. Compl., ECF No. 14 ¶¶ 38, 41. Section

706(1) of the APA provides that “[t]he reviewing court shall . .

. compel agency action unlawfully withheld or unreasonably

delayed.” 5 U.S.C. 706(1). The parties do not dispute that the

Secretary has missed the deadline imposed by Congress to

promulgate the regulations pursuant to 42 U.S.C. § 17071. See

                               25
Def.’s Mem., ECF No. 18-1 at 5; see also Pl.’s Opp’n, ECF No. 22

at 31. Therefore, Sierra Club has alleged a procedural injury to

its members that is ripe. 6

       B. Causation and Redressability

     As to the causation and redressability prongs of standing,

DOE’s own words provide the required causal connection. See Air

All. Houston, 2019 WL 450677, at *8-9 (finding that language in

the agency’s proposed rule supplied the required connection that

promulgation of mandatory reporting regulations would reduce to

some extent the individuals’ health risks from their exposure to

chemical emissions). In its second attempt to promulgate the

final regulations, DOE recognized: “[t]he proposed rule also

would produce environmental benefits in the form of reduced

emissions of air pollutants and greenhouse gases associated with

electricity production. DOE estimates that 18.1 million metric

tons of carbon dioxide emissions would be avoided through the




6 Sierra Club contends that “DOE cannot lawfully adopt the
negotiated standards it proposed” because the proposed standards
were based on the 2015 version of the IECC and a “2018 version
of the IECC has not been published[.]” Pl.’s Opp’n, ECF No. 22
at 17 (citing 42 U.S.C. § 17071(a)(2) & (b)(1)), 30 n.8. Sierra
Club argues that its procedural injury is ripe because the
Secretary has failed to satisfy his obligations under 42 U.S.C.
§ 17071(b)(1) to issue a proposed rule to adopt standards based
on the most recent version of the IECC. Id. at 30-32. The
Secretary has conceded this argument by not responding to it,
see Campbell v. Nat’l R.R. Passenger Corp., 311 F. Supp. 3d 281,
327 n.13 (D.D.C. 2018), and does not dispute that the IECC is
updated every three years.
                               26
end of 2030 as a result of the proposed rule.” 81 Fed. Reg. at

39759 (emphasis added). DOE stated that “[i]mproved energy

conservation standards are expected to provide nationwide

benefits of reducing utility energy production levels that would

in turn reduce greenhouse gas emissions and other air

pollutants.” Id. at 39762 (emphasis added). It also stated:

“Establishing robust energy conservation requirements for

manufactured homes would result in the dual benefit of

substantially reducing manufactured home energy use and easing

the financial burden on owners of manufactured homes in meeting

their monthly utility expenses.” Id. (emphasis added).

     Sierra Club satisfies the causation and redressability

prongs. See Sierra Club v. Fed. Energy Regulatory Comm’n, 827 F.

3d at 65 (“Where, as here, a party alleges deprivation of its

procedural rights, courts relax the normal standards of

redressability and imminence.”); see also Lujan, 504 U.S. at 573

n.7 (same). It is apparent that there is a causal relationship

between the Secretary’s inaction and Sierra Club’s members’

alleged injuries that would be redressed by establishing

standards for energy efficiency in manufactured housing if

Sierra Club prevails on the merits. Having found that Sierra

Club has associational standing, Sierra Club can pursue this

action on behalf of its members. See U.S. Women’s Chamber of

Commerce, 2005 WL 3244182, at *18 (concluding that “the

                               27
plaintiff has associational standing to pursue this action for

unreasonable delay under APA § 706(1) on behalf of its

membership.”). 7

IV.   Conclusion

      For the reasons set forth above, the Court DENIES the

Secretary’s motion to dismiss. A separate Order accompanies this

Memorandum Opinion.

SO ORDERED

Signed:    Emmet G. Sullivan
           United States District Judge
           March 12, 2019




7 Because the Court finds that Sierra Club has associational
standing, it need not consider whether Sierra Club also has
organizational standing. Metro. Wash. Chapter v. District of
Columbia, 57 F. Supp. 3d 1, 20 n.8 (D.D.C. 2014) (Sullivan, J.)
(declining to consider organizational standing because
organization met the requirements for associational standing).
                                28
