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Second Time's the Charm on Standing:

The NRDC v. EPA decision discussed below is also interesting for its treatment of standing. When NRDC first sued to challenge the EPA's methyl bromide exemptions, the D.C. Circuit held that the environmental organization lacked standing to bring the claim. NRDC argued that the EPA's rule, by allowing for the greater use of methyl bromide, would result in marginally greater ozone depletion, increasing ground-level exposure to UV-B radiation, increasing health risks for NRDC's members. Specifically, NRDC argued "its members have standing because they face a greater chance of contracting skin ailments, cataracts, and other ailments" due to the EPA's decision than they would face had the EPA adopted a more stringent rule, such as that NRDC claimed was required by the Montreal Protocol.

The D.C. Circuit rejected this claim on the grounds that the risks alleged by the NRDC were too small and inconsequential to constitute an "injury-in-fact." While acknowledging that the NRDC had alleged a "probabilistic injury," in that there was scientific evidence suggesting an increase in various health risks due to the increased use of methyl bromide, the Court concluded that the risk was still insufficient to support standing.

the fact that governmental action or inaction increases the likelihood of injury -- regardless of the magnitude of the increase -- constitutes injury in the constitutional sense . . . cannot be correct.
Rather, the Judge Randolph wrote for the court, the injury must be "substantially probable," which means, at the very least, that there must be "a 'non-trivial chance of injury." Calculating the increased risk from increased methyl bromide use on an annualized basis, the court concluded the risk was far too small to meet this test.

The NRDC filed a petition for rehearing, producing a second opinion with more favorable results (at least on the standing question). According to the court, "NRDC and EPA offered new information" in their later briefs that "led us to change our view of the standing issue." [As noted below, however, NRDC still lost the suit, albeit on other grounds.]

In its superseding opinion, the D.C. Circuit panel stuck to its formulation of the standing test. For an increased risk to satisfy the injury requirement, petitioners must "demonstrate a 'substantial probability' that they will be injured." A minor statistical chance is not enough. Nonetheless, the Court now accepted the NRDC's claims.

The parties vigorously dispute whether we were correct to hold as a quantitative matter that NRDC's alleged injury was trivial or whether, in NRDC's words, any "scientifically demonstrable increase in the threat of death or serious illness," is sufficient for standing. This question has given rise to a conflict among the circuits. . . . On reconsideration, we have determined that the question is one we do not have to answer in this case. EPA's expert, who built the quantitative model on which both sides rely, now informs us that "[e]xpressing the risk in annualized terms is not practical" and "it is more appropriate to express the risk as a population's cumulative or lifetime risk." The lifetime risk that an individual will develop nonfatal skin cancer as a result of EPA's rule is about 1 in 200,000 by the intervenor's lights, or 1 in 129,000 by EPA's. Even if a quantitative approach is appropriate -- an issue on which we express no opinion -- this risk is sufficient to support standing. One may infer from the statistical analysis that two to four of NRDC's nearly half a million members will develop cancer as a result of the rule.

As to causation, NRDC's asserted injuries are linked to EPA's action through a fairly straightforward chain: EPA has permitted too much new production and consumption of methyl bromide, which will result in more emissions, which will increase ozone depletion, which will adversely affect the health of NRDC's members. This injury can be redressed if EPA does not permit such excessive production and consumption of methyl bromide.

As a doctrinal matter, it has to be correct that increases in environmental risks can be sufficient to support standing. Yet it also must be the case that, at some point, a risk is sufficiently small that it can no longer be considered both "concrete and particularized" and "actual or imminent" -- the requirements for injury-in-fact under current law. A "substantial probability" test may well capture this distinction but, as this litigation makes clear, that is anything but a precise formulation.

Related Posts (on one page):

  1. Second Time's the Charm on Standing:
  2. Delegation to International Treaty Organizations:
Ron Hardin (mail) (www):
That's a bogus ``population effect.'' The more members the NRDC has, the better their standing, on this rule.

But it's individual risk that matters, and that's in the negligible category. They're suing collectively for their individual risk, not for the group risk.

You run a 1 in 7500 annual risk of dying driving out for pizza or something, and don't think twice about it. Take that as a negligible annual risk.

This case isn't even annual risk, but lifetime risk.

It's in hit-by-meteorite territory.
9.4.2006 11:19am
John (mail):
Is this just a case of the court worrying that unless these guys are given standing there would never be court review of the regs? That would, of course, be a tragedy of unimaginable proportions.
9.4.2006 11:59am
byomtov (mail):
That's a bogus ``population effect.'' The more members the NRDC has, the better their standing, on this rule.

Why bogus?

If I can show that a rule has, say, a 98% chance of doing me serious injury then I presumably have standing.

But say the chance for an individual is actually quite small, but there is a group of people large enough that there is a 98% chance that at least one member will be seriously injured. Why shouldn't the group have standing? The probability of serious injury to an individual is at least as high. The only difference is that we cannot identify the likely injured party specifically. So what?
9.4.2006 12:28pm
frankcross (mail):
Taken literally, substantial probability seems awfully high.
If I am threatened with, say, a 40% risk to life, that's huge but wouldn't seem to satisfy the literal substantial probability standard.

Of course, substantial probability may just mean "non-trivial." But that's a bizarre use of the English language.
9.4.2006 1:01pm
liberty (mail) (www):
"Why shouldn't the group have standing? "

I'm not sure whether or not they should, but do recognize then that the Amalgamated Transit Union (180k members) could then easily sue the government (for eg raising the speed limit) because their members have a high lifetime probability of getting in a fatal accident on the highways, and thereby force the government to increase public transit funding instead of highways. etc
9.4.2006 1:37pm
Ron Hardin (mail) (www):
Something does not become dangerous or not because of the number of people exposing themselves to it. It's dangerous or not on its own.

When you have a population of 300 million, you can rhetorically raise any danger by 8 orders of magnitude, but you're still trading on ordinary language's take on danger, namely to the individual.

Politically, 8 orders of magnitude in hand-waving is quite attractive, but that's no reason to fall for it.

Ordinary language takes danger from how many instances you see in your neighborhood, like the guy four years ago two blocks over who died in a traffic mishap. TV brings every bizarre happening in the country into your own neighborhood, skewing things pretty badly.

There are lots of motives to do so, but not motives to fall for it.
9.4.2006 1:58pm
bruce (mail):
"Superseding" is spelled with an 's' ... not with a 'c'. Which is odd because "preceding" is spelled with a 'c'.
9.4.2006 3:45pm
logicnazi (mail) (www):
liberty,

I think what you are overlooking is that this is merely what is required to gain standing. Sure the large number of members of the ATU are going to be more likely to have standing to sue the government about any change in the laws but this doesn't give them an underlying basis for the suit. The ATU can't (at least succesfully) sue the government for raising speed limits because there is no law against the government doing so.

The point is that a lack of standing means that you can't stop the government from engaging in even a blatantly illegal process. Why have such a rule? Well one reason is to ensure that the lawsuit is actually a case or controversy so that the plantiff has a genuine interest in winning. You don't want friends of a policy suing and then delibratly bungling the case to create favorable precedent. Practically this isn't an issue here.

Additionally standing rules serve to prevent firvolous suits. If anyone could sue everytime the government made some little deciscion but failed to observe some minor technicality (didn't file the correct form) it would be almost impossible for anything to get done. You don't like government deciscion, find some minor beuracratic rule they failed to follow (say not assigning a paperwork reduction number) that technically makes the deciscion illegal. Since the number of federal laws makes it likely that you will be able to find such a mistake we need the notion of standing to block these frivolous lawsuits. Heck, just the sheer number of people who could file lawsuits would impose significant costs.

I think this deciscion nicely preserves the virtues of requiring standing while allowing the courts to review government deciscions of real public concern. You can't just go granting standing because the one plantiff has the sort of increased risk stated here. A case can be made that almost any act no matter how small increases your individual risk that much and just analyzing such small risks to defend against such claims would be a large burden on the government. Yet surely governmental acts which increase everyone's risk by a small amount are matters of public concern and the government should not have a free hand to act illegally.

Requiring that the overall harm to the group suing exceed a certain amount nicely deals with both problems. By requiring that the group be large enough it makes sure the government won't be burdened down by suits from millions of private citizens while providing some judicial review. Indeed, if you care about these sort of things, it is even a nicely democratic principle saying that larger groups get more say.

Hardin,

I'm not sure I understand your point but I think you are confusing our natural language notion of danger and the everyday errors people make in thinking about it. Most women think of walking alone at night as far more dangerous than driving to work even though if they don't live in a horribly bad neighborhood the opposite is likely true. This doesn't make it a truth of meaning that the former is more dangerous, it just shows that people are bad at estimating danger.

Anyway I think you are missing the point that they are trying to estimate the harm, or probable harm to the plantiffs. The probable harm to the plantiffs here is that one or two of them will die. The fact that their individual danger is low is irrelevant.
9.4.2006 4:46pm
David M. Nieporent (www):
But say the chance for an individual is actually quite small, but there is a group of people large enough that there is a 98% chance that at least one member will be seriously injured. Why shouldn't the group have standing? The probability of serious injury to an individual is at least as high.
Or, turn it around: the probability is at least as low. Why should the size of an organization be the determining factor in whether standing exists? Either 1-in-~100K is sufficient to create standing or it isn't. Since when do you aggregate individualized interests, to turn insufficient interest into sufficient interest?


Of course, what this really illustrates is why we need to revive the nondelegation doctrine, so that these sorts of issues don't arise.
9.4.2006 6:42pm
byomtov (mail):
Or, turn it around: the probability is at least as low.

No. It's not. If there is a 98% chance that at least one member will be seriously injured the chance of serious injury can not be less than 98%, and barring strange cases will be greater.

Why should the size of an organization be the determining factor in whether standing exists? Either 1-in-~100K is sufficient to create standing or it isn't. Since when do you aggregate individualized interests, to turn insufficient interest into sufficient interest?

Why can't you aggregate them? Isn't that what class action lawsuits do?
9.4.2006 11:02pm
Twill00 (mail):
One wonders whether the protective value of eating fresh strawberries against various diseases should figure into the calculation for standing. If (as they claim) 2 to 4 people in that group will develop non-fatal skin cancer, shouldn't the health benefit of eating the more-available and cheaper strawberries count as an offsetting factor?
9.4.2006 11:07pm
Dave Hardy (mail) (www):
1. Nonfatal skin cancer is not a major affair. Living in AZ, it's a risk of life. So long as it isn't melanoma (for which, see fatal skin cancer).

2. I can see plenty of situations in which individuals have more than a few thousands of a percent lifetime chance of suffering harm (and there are enough of them to where the chance of someone actually doing so is nonzero). The familiar cases where court bounce a party for lack of standing because they haven't been prosecuted, altho the odds of being caught and prosecuted is certainly well above zero.

3. Size of the group ... well, it might have some bearing upon standing, since one of the considerations underlyng organizational standing is that the group have a sufficient interest to sharpen the issues and other claptrap. On the other hand, the thought that four members of a large group might over their lifetime risk a nonfatal condition does seem a rather tenuous approach to this issue.

4. It further underscores my belief, based on decades of experience, that if the court likes your cause of action you have standing.
9.4.2006 11:46pm
David M. Nieporent (www):
Why can't you aggregate them? Isn't that what class action lawsuits do?
Not in the least. Each member of the class must have an individual injury. Class actions don't create standing where there is none. They aggregate for administrative purposes (if the legal and factual issues are the same, it's easier to deal with 1 suit with 10,000 plaintiffs then 10,000 suits with one plaintiff each.) But if putative class member 1 doesn't have an injury and putative class member 2 doesn't have an injury and putative class member 3 doesn't have an injury, we can't add them up and create one. If someone doesn't have an injury, he or she can't be in the class at all.
9.4.2006 11:58pm
byomtov (mail):
Not in the least. Each member of the class must have an individual injury.

As a practical matter, at least, that doesn't seem to always be the case. I've been a member of the class in securities class actions several times. My personal alleged damages were generally in the neighborhood of $1-$25. Are you saying that I had standing to bring a lawsuit on an individual basis?

After all, when you refer to "insufficient interest" aren't you saying "some interest, but one that is to small to be considered?" So aggregating them might lead to the creation of a "sufficient interest." Why does the defendant get away with damaging lots of people slightly, leading to a possibe large benefit, simply because he takes, say $1 each from a lot of people?

Alternatively, in the probablisitic arena, all you are saying is that it's OK to do something that is going to harm someone's health, as long as you don't know who specifically is going to be harmed, but not OK if you do know.

Maybe that's the law, but it doesn't make a lot of sense to me.
9.5.2006 12:19pm
David M. Nieporent (www):
My personal alleged damages were generally in the neighborhood of $1-$25. Are you saying that I had standing to bring a lawsuit on an individual basis?
Yes, absolutely. We don't form the class to create standing; as I said, we form the class for administrative convenience.

Alternatively, in the probablisitic arena, all you are saying is that it's OK to do something that is going to harm someone's health, as long as you don't know who specifically is going to be harmed, but not OK if you do know.
You're arguing the merits of the claim here; this discussion, though, is about standing. Entirely different issues. Saying that you don't have standing is not the same as saying that what the other person did is "OK."

(There are many things which are not "OK" for which you nonetheless have no standing to sue. E.g., If you're over at my house for dinner and you happen to leave your wallet here, and then the next day, before you have a chance to retrieve it, police kick in my door without a warrant and seize the wallet, you can't sue for the fourth amendment violation. Not because it's "OK," but because you don't have standing.)

(Moreover, we're not talking about "doing something that is going to harm someone's health"; we're talking about the government implementing a regulation which allows a private party to do something that is going to harm someone's health.)
9.5.2006 1:44pm
byomtov (mail):


OK. But the principle is the same. The victim is unidentified in both cases.

And if $1 (or less) in damages is enough to give me standing as an individual then what exactly constitutes "insufficient interest?" If we value someone's life conservatively at, say, $1,000,000, why wouldn't a .0000001 probability of being killed give standing?
9.5.2006 2:21pm