Substance or Illusion? The dangers of imposing a standing threshold

Georgetown Law Journal

Volumn 97, Issue 2, 2009, Pages 391-422

  Letter, Amanda ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 60449120535     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (156)

1. Natural Res. Def. Council v. EPA (NRDC I), 440 F. 3d 476, 477 (D.C. Or. 2006) (challenging Protection of Stratospheric Ozone: Process for Exempting Critical Uses From the Phaseout of Methyl Bromide, 69 Fed. Reg. 76,982 (Dec. 23, 2004) (codified at 40 C.F.R. pt. 82)), withdrawn, Natural Res. Def. Council v. EPA (NRDC II), 464 F. 3d 1 (D.C. Cir. 2006).
2. See NRDC I, 440 F. 3d at 481-82nn. 8, 9.
3. Id. at 482 (quoting an affidavit submitted by Intervenor Methyl Bromide Industry Panel (MBIP)).
4. Id. at 484.
5. NRDC II, 464 F. 3d at 7.
6. Cassandra Sturkie & Nathan Seltzer, Developments in the D.C. Circuit's Article III Standing Analysis: When Is an Increased Risk of Future Harm Sufficient to Constitute Injury-in-Fact in Environmental Cases?, 37 ENV. L. REP. 10287, 10293 (2007) (noting that in NRDC I, "the D.C. Circuit distinguished itself from other courts of appeals... which have suggested that an increase in probability itself constitutes an 'actual or imminent' injury" (internal quotation marks omitted) (citing Covington v. Jefferson, 358 F. 3d 626, 652 (9th Cir. 2004) (Gould, J., concurring))); see also Baur v. Veneman, 352 F. 3d 625, 634 (2d Cir. 2003); Cent. Delta Water Agency v. United States, 306 F. 3d 938, 947-18 (9th Cir. 2002); Friends of the Earth v. Gaston Copper Recycling Corp., 204 F. 3d 149, 160 (4th Cir. 2000) (en banc).
7. NRDC I, 440 F. 3d at 484 (quoting Mountain States Legal Found. v. Glickman, 92 F. 3d 1228, 1234-35 (D.C. Cir. 1996)).
8. Id. at 483 (quoting Fla. Audubon Soc'y v. Bentsen, 94 F. 3d 658, 666 (D.C. Cir. 1996) (en banc)).
9. Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin. (Public Citizen I), 489 F. 3d 1279, 1297 (D.C. Cir. 2007) (emphasis added), supplemented by Public Citizen, Inc. v. Nat'l Highway Traffic Safety Admin. (Public Citizen II), 513 F. 3d 234 (D.C. Cir. 2008) (per curiam). As these quotes make clear, there are actually two quantities involved here: the background risk (which could be large or small), and the increase in risk due to the challenged agency action (which could be small even if the underlying risk is large). For simplicity, this Article treats these two quantities as identical, as the argument applies equally well whether the background risk itself is small, or the background risk is large but the increase due to the challenged rule is small.
10. See, e.g., NRDC II, 464 F. 3d at 7 (noting that "[t]he lifetime risk that an individual will develop nonfatal skin cancer as a result of EPA's rule is about... 1 in 129,000" according to the EPA).
11. See, e.g., Kennecott Greens Creek Mining Co. v. Mine Safety and Health Admin., 476 F. 3d 946, 954-55 (D.C. Cir. 2007) (noting that the court "will give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise").
12. See NRDC I, 440 F. 3d at 481-82 nn. 8, 9.
13. See Public Citizen I, 489 F. 3d at 1295.
14. See Mark Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine, 80 N.C. L. Rev. 1203, 1216 (2002).
15. See, e.g., RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 82, 133-34 (2004) (discussing standing history); William W. Buzbee, Expanding the Zone, Tilting the Field: Zone of Interests and Article III Standing Analysis After Bennett v. Spear, 49 Admin. L. REV. 763, 766 (1997) (observing that, after Bennett, the "standing inquiry playing field... is tilted to the advantage of regulatory targets"); Evan Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997 SUP. CT. REV. 199, 226 (characterizing Lujan v. Defenders of Wildlife's standing holding as perhaps "an attempted end-run around the Court's rejection of [Justice Scalia's] extreme unitarian position in Morrison v. Olson"); William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 223 (1988) (arguing that the only constitutional standing requirement is and should be a legal cause of action); Lisa Heinzerling, The Commercial Constitution, 1995 SUP. CT. REV. 217, 268-69 (contrasting standing in Commerce Clause and other regulatory challenges and concluding that "the Court's concepts of discrimination and regulation suggest a return to Lochner-style assumptions about the natural and proper role of government"); Gene R. Nichol, Forward: The Impossibility of Lujan's Project, 11 DUKE ENVTL. L. & POL'Y F. 193, 196 (2001) ("Lujan, in full flower, would strike at congressionally authorized standing and the claimed 'overjudicialization' of the operation of American government."); Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power, 42 DUKE L.J. 1170 (1993) (characterizing Lujan as "an insupportable judicial contraction of the legislative power to make judicially enforceable policy decisions"); Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 169-70 (1992) (questioning the constitutional necessity for a fact-based standing inquiry); Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371, 1374 (1988) ("[T]he modern doctrine of standing is a distinctly twentieth century product that was fashioned out of other doctrinal materials largely through the conscious efforts of Justices Brandeis and Frankfurter.").
16. U.S. CONST. art. II, sect; 3 ("[H]e shall take Care that the Laws be faithfully executed.").
17. Nichol, supra note 15, at 199.
18. Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
19. Sunstein, supra, note 15, at 170; see also Fletcher, supra, note 15, at 225 (describing the same history); Winter, supra, note 15, at 1372-73).
20. Winter, supra, note 15, at 1372.
21. See, e.g., Fletcher, supra, note 15, at 225; Gene R. Nichol, Justice Scalia, Standing, and Public Law Litigation, 42 Duke LJ. 1141 (1993); Sunstein, supra, note 15, at 179-81; Winter, supra, note 15, at 1453.
22. Fletcher, supra, note 15, at 225.
23. See Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970). For the argument that the present, fact-based standing inquiry has constitutional rather than pragmatic roots, see, for example, Bradley S. Clanton, Standing and the English Prerogative Writs: The Original Understanding, 63 BROOK. L. REV. 1001 (1997); John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219, 1220 (1993); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 894-95 (1983).
24. Fletcher, supra, note 15, at 225.
25. See Winter, supra, note 15, at 1454-55.
26. Id. at 1456-57.
27. Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118,137,140 (1939).
28. Winter, supra, note 15, at 1457.
29. In Fairchild v. Hughes, for example, a citizen taxpayer plaintiff challenged the ratification process for the Nineteenth Amendment and asked the Court to "restrain the Secretary of State from issuing any proclamation declaring that it has been ratified; and... [to restrain] the Attorney General... From enforcing it." Fairchild v. Hughes, 258 U.S. 126, 127 (1922). The Court dismissed the suit because the plaintiff lacked an enforceable private right: Plaintiff has only the right, possessed by every citizen, to require that the government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit to secure... a determination whether a statute, if passed, or a constitutional amendment, about to be adopted, will be valid. Id. at 129-30. Along related lines, in Tennessee Electric, the appellant electricity companies objected to competition from the Tennessee Valley Authority (TVA) on the ground that Congress could not constitutionally grant TVA the power to generate and sell electricity because such power lies outside Congress's authority "to improve navigation and control floods in the navigable waters of the nation." Tenn. Elec, 306 U.S. at 135-36. The Court held the harm to appellants nonjusticiable because "the damage consequent on competition, otherwise lawful,... will not support a cause of action or a right to sue." Id. at 140.
30. See Sunstein, supra, note 15, at 184,193.
31. See id. at 183-84.
32. See, e.g., Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59 (1978); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973); Sierra Club v. Morton, 405 US. 727 (1972). In Sierra Club, the Court denied Sierra Club's standing because the group had failed to allege that the challenged development of a national forest would harm the club in any way. 405 U.S. at 735. Importantly, though, the Court made clear that the Club would have standing to sue on behalf of members who used the area, and "for whom the aesthetic and recreational values of the area [would] be lessened by" the challenged development. id. In SCRAP, the Court found standing for plaintiffs who made the rather attenuated argument that a rail-fare increase would increase pollution by making recycling more costly. 412 U.S. at 686, 687-88. In Duke Power, the Court permitted organizations and individuals to challenge the constitutionality of the Price Anderson Act, which, they alleged, made possible Duke Power's construction of nuclear power plants in Norm and South Carolina. 438 U.S. at 67, 81-82. These and other 1970s cases established that "citizen allegations of [ecological injury] could satisfy" at least the first, injury-in-fact prong of the standing inquiry, despite "the exceedingly attenuated and speculative allegations of causation" present in some cases. Lazarus, supra, note 15, at 82, 134.
33. See, e.g., Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38-39 (1976) ("In Data Processing Service v. Camp, this Court held the constitutional standing requirement under [the APA] to be allegations which, if true, would establish that the plaintiff had been injured in fact by the action he sought to have reviewed. Reduction of the threshold requirement to actual injury redressable by the court represented a substantial broadening of access to the federal courts over that previously thought to be the constitutional minimum under this statute." (internal citation omitted)).
34. Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150 (1970).
35. Id. at 151, 158.
36. Id. at 53.
37. See id. at 152-53; Sunstein, supra, note 15, at 184-86.
38. Camp, 397 U.S. at 152-53.
39. See id. at 153.
40. Flast v. Cohen, 392 U.S. 83 (1968).
41. Camp, 397 U.S. at 151-52 (quoting Flast, 392 U.S. at 101) (emphasis added). Flast expanded taxpayer standing, recognizing what the Court has since characterized as "a narrow exception to the general rule against federal taxpayer standing" for plaintiffs challenging "a law authorizing the use of federal funds in a way that allegedly violates the Establishment Clause." Hein v. Freedom from Religion Found., 127 S. Ct. 2553, 2559 (2007).
42. Camp, 397 U.S. at 155.
43. See Sunstein, supra, note 15, at 164-65 (describing the narrow law of standing advocated by Justice Scalia and adopted by the Court when dealing with a congressional grant of standing to citizens).
44. Scalia, supra, note 23, at 888-89 (critiquing Camp).
45. Id. at 894-95 (final emphasis added).
46. Id. at 895-96.
47. Nichol, supra, note 15, at 194. See generally Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
48. See Lujan, 504 U.S. at 558-59.
49. See id. at 571-72. This provision purports to allow "any person" to "commence a civil suit on his own behalf... to enjoin any person, including the United States and any other governmental instrumentality or agency... alleged to be in violation of any provision" of the Act. Endangered Species Act of 1973 sect; 11,16 U.S.C. sect; 1540(g) (2000).
50. Lujan, 504 U.S. at 567.
51. Scalia, supra, note 23, at 895.
52. Lujan, 504 U.S. at 577 (quoting U.S. CIONST, art. II, sect; 3).
53. Id. at 580 (Kennedy, J., concurring in part and concurring in judgment).
54. See, e.g., Pierce, supra, note 15, at 1188-95 (speculating about the "potential effects of [Lujan]").
55. Sunstein, supra, note 15, at 226.
56. Nichol, supra, note 15, at 195.
57. FEC v. Akins, 524 U.S. 11, 15-16, 28 (1998). Chief Justice Rehnquist and Justices Stevens, Kennedy, Souter, and Ginsburg joined Justice Breyer's opinion; Justices O'Connor and Thomas joined Justice Scalia's dissent. Id. at 13.
58. Id. at 24-25.
59. Id. at 24.
60. Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167,180-88 (2000).
61. Id. at 183-84.
62. Scalia, supra, note 23, at 895.
63. Laidlaw, 528 U.S. at 184.
64. Sunstein, supra, note 15, at 226.
65. Massachusetts v. EPA, 127 S. Ct. 1438 (2007).
66. Id. at 1462.
67. See id. at 1453.
68. Id. at 1464 (Roberts, J., dissenting) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992)).
69. See id. at 1455-56 (majority opinion).
70. Id. at 1456 (emphasis added) (internal quotation marks and citations omitted).
71. The Massachusetts Court does quote favorably from SCRAP, the Supreme Court's most permissive (and most widely discredited) standing opinion: "To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion." Id. at 1458 n. 24 (quoting SCRAP, 412 U.S. 669, 687-88 (1973) (emphasis added) (citations omitted)). To establish Massachusetts' standing, however, the Court relies on the state's historic loss of coastline rather than any risk of future injury, suggesting that the majority's refusal to "accept that conclusion" extends only to widespread government actions that have already taken a toll, not to widespread government actions that merely impose risks.
72. Public Citizen I, 489 E3d 1279, 1295 (D.Cir. 2007) (internal citations omitted) (ordering supplemental briefing on plaintiff's standing). Ultimately, after Public Citizen submitted a supplemental brief and more than 200 pages of additional declarations supporting standing, the court determined that the group had "not met its burden to demonstrate injury in fact." Public Citizen II, 513 F. 3d 234, 241 (D.C. Cir. 2008) (per curium).
73. Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring in part and concurring in judgment).
74. supra, note 53 and accompanying text.
75. Sturkie & Seltzer, supra, note 6 (citing cases in the Second, Fourth, and Ninth Circuits).
76. The D.C. Circuit has exclusive jurisdiction over many administrative disputes and concurrent jurisdiction over most others. For example, the court has exclusive jurisdiction to review regulations promulgated under the Toxic Substances Control Act of 1976 sect; 19, 15 U.S.C. sect; 2618(a)(1) (2000), the Oil Pollution Act of 1990 sect; 1017, 33 U.S.C. sect; 2717(a) (2000), Resource Conservation and Recovery Act of 1976 sect; 7006, 42 U.S.C. sect; 6976(a)(1) (2000), and the Comprehensive Environmental Resource, Compensation, and Liability Act of 1980 sect; 113, 42 U.S.C. sect; 9613(a) (2000); national pollution standards issued under the Clean Air Act of 1963 sect; 307, 42 U.S.C. sect; 7607(b)(1) (2000); "actions pertaining to the establishment of national primary drinking water regulations" under the Safe Drinking Water Act of 1974 sect; 1448, 42 U.S.C. sect; 300j-7(a)(1) (2000); decisions of the "God Squad" under the Endangered Species Act of 1973 sect; 7, 16 U.S.C. sect; 1536(n) (2000); and national rules promulgated under the Surface Mining Control and Reclamation Act of 1977 sect; 526, 30 U.S.C. sect; 1276(a) (2000). Under the National Labor Relations Act of 1935 sect; 10, on the other hand, "[a]ny person aggrieved by a final order of the [National Labor Relations] Board may obtain review... in any United States court of appeals in the circuit wherein the unfair Tabor practice was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia." 29 U.S.C. sect; 160(f) (2000) (emphasis added). Similarly, venue for review of any proceeding under the Nuclear Waste Policy Act of 1982 sect; 119 "shall be in the judicial circuit in which the petitioner involved resides or has its principal office, or in the United States Court of Appeals for the District of Columbia." 42 U.S.C. sect; 10139 (2000). See also John G. Roberts, What Makes the D.C. Circuit Different, 92 VA. L. REV. 375, 389 (2006) ("Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency's decision is vested in the D.C. Circuit.").
77. Cf. Susan Low Bloch & Ruth Bader Ginsburg, Celebrating the 200th Anniversary of the Federal Courts of the District of Columbia, 90 GEO. L.J. 549, 567-68, 576-77 & n. 165 (2002) (noting numerous cases in which the Supreme Court has adopted the D.C. Circuit's view on issues of substance or procedure). Of course, the D.C. Circuit's innovations do not always impress the Supreme Court. See, e.g., Whitman v. Am. Trucking Assn's, 531 U.S. 457, 476 (2001) (rejecting the D.C. Circuit's conclusion that the Clean Air Act's delegation of authority to EPA to set air pollution standards at a level "requisite to protect public health" violated the nondelegation doctrine). But see Bloch & Ginsburg, supra, at 577 (pointing out that even in those administrative law cases in which the Supreme Court rejects the D.C. Circuit's view, the lower court's consideration of the issues often "elevate[s] the [Supreme] Court's comprehension of the diverse considerations at stake").
78. Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).
79. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (quoting Allen, 468 U.S. at 750 (internal quotation marks omitted)).
80. See infra Part III.
81. Massachusetts v. EPA, 127 S. Ct. 1438, 1453 (2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 581 (1992) (Kennedy, J., concurring in part and concurring in the judgment)) (internal quotation marks omitted).
82. SCRAP, 412 U.S. 669, 689 n. 14 (1973) (quoting Kenneth Culp Davis, Standing: Taxpayers and Others, 35 U. Cm. L. REV. 601, 613 (1968)) (internal citations omitted).
83. For a general discussion of "parallels between class action litigation and administrative regulation," see Jonathan T. Molot, An Old Judicial Role for a New Litigation Era, 113 YALE L.J. 27, 94-118 (2003).
84. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F. 3d 338, 344 (1997)).
85. Carnegie v. Household Int'l, Inc., 376 F. 3d 656, 661 (7th Cir. 2004).
86. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n. 20 (1976) ("That a suit may be a class action... adds nothing to the question of standing, for even named plaintiffs who represent a class 'must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent."' (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975))).
87. See, e.g., Carnegie, 376 F. 3d at 661-62.
88. See SCRAP, 412 U.S. 669, 689 n. 14 (1973) (quoting Kenneth Culp Davis, Standing: Taxpayers and Others, 35 U. CHI. L. REV. 601, 613 (1968)).
89. See, e.g., In re Rezulin Prods. Liab. Litig., 361 F. Supp. 2d 268, 275 (S.D.N.Y. 2005) ("[W]here bodily injury is at most latent and any eventual consequences uncertain, the case for allowing recovery is weak." (internal quotations omitted) (citing Temple-Inland Forest Prods. Corp. v. Carter, 993 S.W.2d 88 (Tex. 1999))). But See, e.g., In re Paoli R.R. Yard PCB Litig., 916 F. 2d 829, 850-51 (3d Cir. 1990) (recognizing a cause of action for medical monitoring in Pennsylvania law; also discussing other jurisdictions' handling of claims for emotional distress and medical monitoring and collecting cases).
90. See, e.g., Rezulin, 361 F. Supp. 2d at 275 ("[P]olicy concerns weign[] against compensating [latent] injury because plaintiffs might compete against those with manifest diseases for the legal system's limited resources.").
91. See id.
92. See Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 YALE L. J. 1353, 1363 (1981) ("Under the traditional approach,... loss of a not-better-than-even chance of recovering from... cancer would not be compensable because it did not appear more likely tha[n] not that the patient would have survived with proper care.").
93. See id. at 1363-64.
94. See, e.g., Smith v. State, 676 So. 2d 543, 547 n. 8 (La. 1996) (noting that "the loss of a chance of survival doctrine... has been recognized by a majority of the states").
95. See id. at 547-48 (discussing the various methods).
96. David A. Fischer, Tort Recovery for Loss of a Chance, 36 WAKE FOREST L. REV. 605, 611 (2001).
97. Alexander v. Scheid, 726 N.E. 2d 272, 279 (Ind. 2000).
98. See NRDC I, 440 F. 3d 476, 484 (D.C. Cir. 2006).
99. Massachusetts v. EPA, 127 S. Ct. 1438, 1453 (2007).
100. Scalia, supra, note 23, at 894.
101. For example, the significant risks associated with inhaling air pollutants are imposed by a minority (owners and operators of industrial facilities) on the majority (everyone who lives in reasonable proximity to such a facility). See, e.g., Luis Cifuentes et'al., Climate Change: Hidden Health Benefits of Greenhouse Gas Mitigation, 293 SCIENCE 1257, 1257 (2001) ("It has been estimated that reducing emissions from older coal-fired power plants in the United States could provide substantial benefits to public health, including the avoidance of 18,700 deaths, 3 million lost work days, and 16 million restricted-activity days each year.").
102. See supra note 72 and accompanying text
103. Matthew D. Adler,. Why De Minimis? 1 (Univ. of Pa. Law Sch., Paper No. 164, 2007), available at http://lsr.nellco.org/cgi/viewcontent.cgi? article=1168&context=upenn/wps.
104. Id. at 3.
105. See id. at 26. According to Adler, however, it is by no means clear "[w]hich [de minimis] tests... a boundedly rational decisionmaker [is] morally justified in employing... given the presence and level of decision costs, and... the tests' relative[] accuracy in mimicking what a fuller social welfare analysis would conclude." Id. at 28. In other words, even in a real world of imperfect regulators, moral theory offers no clear justification for legislative imposition of any particular de minimis risk threshold.
106. Public Citizen I, 489 F. 3d 1279, 1295 (D.C. Cir. 2007) (quoting DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854,1860 (2006)).
107. See supra text accompanying note 99.
108. See generally Frank Ackerman & Lisa Heinzerling, Pricing the Priceless: Cost-Benefit Analysis of Environmental Protection, 150 Ú. PA L. REV. 1553, 1557-60 (2003) (detailing the problems with monetizing environmental and public health benefits, and with figuring out how to express future benefits in today's dollars).
109. Of course, some also argue that being at risk is itself an injury. See, e.g., Claire Finkelstein, Is Risk a Harm?, 151 U. PA. L. REV. 963, 965 (2003) (arguing for "the existence of risk harm"). If one accepts this view, then the "expected value" of the risk is not just the likelihood of illness multiplied by the cost of illness but that quantity augmented by some measure of the cost of risk.
110. See Matthew D. Adler, Against "Individual Risk": A Sympathetic Critique of Risk Assessment, 153 U. PA. L. REV. 1121,1126 (2005).
111. See, e.g., id.
112. See IBP, Inc. v. Alvarez, 546 U.S. 21, 24 (2005).
113. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 832-33 (1999) (quoting West v. Randall, 29 F. Cas. 718, 722 (C.C.D.R.I. 1820)).
114. One should not be misled by the fact that, at the time an increased-risk case is filed, the risk has not yet been realized. The magnitude of a risk does not have to be large relative to the size of the group-at-risk in order for there to be a greater than fifty-percent likelihood that at least one member of that group will eventually suffer the anticipated harm. The following table illustrates this fact for a cancer risk of 1:10,000. Size of Group Probability of No Cancers in Group Probability of at Least One Cancer Expected Number of Cancers 1000.99 0.00995 0.01 10000.9050.0950.1 10,0000.370.631 100,0004.54E-050.99995510 1,000,000 Essentially 0 Essentially 1100 10,000,000 Essentially 0 Essentially 11000
115. See FPL About Us, http://www.fplgroup.com/about/contents/fpl.shtml (last visited Aug. 18, 2008).
116. Note, though, that pre-illness estimates of the level at which people value living a healthy life are notoriously inaccurate. See, e.g., Jonathan S. Masur, Probability Thresholds, 92 IOWA L. REV. 1293, 1333 (2007) (noting that using willingness-to-pay techniques to estimate the value of life generates numbers that range over two orders of magnitude); Cass R. Sunstein, Lives, Life-Years, and Willingness to Pay, 104 COLUM. L. REV. 205, 205-13 (2004) (discussing and critiquing willingness-to-pay techniques).
117. The tradeoffs for the company could be different, of course, as in case (1) FPL could make the plaintiffs whole by paying out $38,000, whereas the costs to the company of addressing the pollution problems in cases (2) and (3) may not correlate with the societal costs that the pollution is imposing.
118. Given the numbers above, the expected number of illnesses in the second case is 3.8 per year of misconduct (3.8 million times 1/1,000,000); in the third case it is 0.38 per year of misconduct (3.8 million times 1/10,000,000).
119. See, e.g., Masur, supra, note 116, at 1333 (discussing the imprecision of willingness-to-pay measures for estimating the value of life or health). For case (3), the estimation problem is even more serious, because (by hypothesis) the illness is incurable. See id.
120. For further discussion of the illogic of ignoring the magnitude of the anticipated harm, See supra text accompanying notes 98-99.
121. See, e.g., Adler, supra, note 110, at 1124, 1130, 1241 ("Both welfare consequentialism and alternative moral views generally demand that regulatory criteria for addressing hazards attend to the number of persons incurring various levels of (Bayesian) risk from the hazards.").
122. The fact that the individuals who will get sick do not yet know who they are does not negate their significant present interest in averting that outcome-it just makes them less likely and less able to press their case with a court.
123. For two prime examples of this fact, see NRDC I, 440 F. 3d 476, 479-80 (D.C. Cir. 2006) and NRDC II, 464 F. 3d 1, 3-5 (D.C. Cir. 2006) (reviewing an EPA rule that allowed use of a particular amount of the pesticide methyl bromide for a single year, 2005).
124. See, e.g., Eagle-Picher Indus, v. EPA, 759 F. 2d 905, 909, 911-12 (D.C. Cir. 1985). In the context of a retrospective determination of the ripeness of an untimely claim, the court noted that "[i]t is the duty of the court to make the prudential judgment whether a challenge to agency action is ripe; it is the responsibility of petitioners to file for review within the period set by Congress." Id. at 912.
125. Amanda C. Cohen, Recent Development, Ripeness Revisited: The Implications of Ohio Forestry Association v. Sierra Club for Environmental Litigation, 23 HARV. ENVTL. L. REV. 547, 548, 556-61 (1999).
126. Oral Argument, Pub. Citizen, Inc. v. Highway Traffic Safety Admin., 513 F. 3d 234 (D.C. Cir. 2008) (notes on file with author).
127. See, e.g., Nuclear Energy Inst., Inc. v. EPA, 373 F. 3d 1251, 1297-98 (D.C. Cir. 2004) ("It is a hard and fast rule of administrative law, rooted in simple fairness, that issues not raised before an agency are waived and will not be considered by a court on review." (citing United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952))).
128. See id.
129. See, e.g., Public Citizen I, 489 F. 3d 1279,1289 (D.C. Cir. 2007).
130. Public Citizen II, 513 F. 3d 234 (D.C. Cir. 2008) (per curiam), provides one data point: the plaintiffs' supplementary standing filings exceeded 200 pages and cost more man $50,000 to produce. Conversation with Allison Zieve, Public Citizen Attorney (July 28, 2008).
131. For example, substantiating some health risks may require extensive laboratory testing or modeling.
132. Fletcher, supra, note 15, at 291.
133. See generally Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
134. See, e.g., 5 U.S.C. sect; 701(a)(2) (2000) (noting that judicial review is unavailable for actions "committed to agency discretion by law"); see also Heckler v. Chaney, 470 U.S. 821, 832, 837-38 (1985) (holding that in most circumstances, the Administrative Procedure Act does not provide for judicial review of agency decisions not to bring enforcement actions); cf. Massachusetts v. EPA, 127 S. Ct. 1438,1459 (2007) (noting that unlike nonenforcement decisions, denials of rulemaking petitions are "susceptible to judicial review, though such review is 'extremely limited' and 'highly deferential'" (internal citations omitted)).
135. See 5 U.S.C. sect; 706 (2)(A) (2000).
136. Baur v. Veneman, 352 F. 3d 625, 636 (2d Cir. 2003).
137. Public Citizen I, 489 F. 3d 1279, 1295 (D.C. Cir. 2007) (emphasis added).
138. Id. (internal citation omitted).
139. NRDC II, 464 F. 3d 1, 6 (D.C. Cir. 2006) (quoting Ctr. For Law & Educ. v. Dep't of Educ, 396 F. 3d 1152, 1161 (D.C. Cir. 2005)).
140. "[W]here... the [plaintiff's] claim is not that [an existing] regulation is substantively unlawful, or even that it violates a clear procedural prerequisite, but rather that it was 'arbitrary' and 'capricious' [for the agency] not to conduct [a new or] amendatory rulemaking.... [t]he proper procedure for pursuit of [the] grievance is set forth explicitly in the APA: a petition to the agency for rulemaking, denial of which must be justified by a Statement of reasons, and can be appealed to the courts." Auer v. Robbins, 519 U.S. 452, 459 (1997) (internal citations omitted).
141. This is not to suggest that the plaintiffs in Suit (1) would not or should not have a cause of action if the agency failed to meet its statutory obligation to address the risk of injury from car accidents. Rather, it merely suggests that a court hoping to weed out cases involving dubious causation cannot address that concern by evaluating the substantiality of the plaintiff's risk.
142. A recent study, for example, indicates that on average, about 1 in 100 children in crashes were seated in the front passenger seat and thus "exposed to an air bag deployment." See Kristy B. Arbogast et al., Injury Risk to Restrained Children Exposed to Deployed First- and Second-Generation Air Bags in Frontal Crashes, 159 ARCHIVES PEDIATRICS & ADOLESCENT MED. 342, 342-43 (2005). Of the children so exposed, the risk of serious injury from exposure to deployed second-generation passenger air bags was 9.9%. Id. at 342. The risk to children who are in serious crashes is thus just .099% (1% times 9.9%), and the risk to all children who ride in cars is considerably lower.
143. See supra note 1 and accompanying text.
144. See NRDC I, 440 F. 3d 476,481 (D.C. Cir. 2006).
145. See, e.g., Edward Lloyd, Citizen Suits and Defenses Against Them, (A.L.I.-A.B.A. Course Study, June 25-28, 2008), WL SN085 A.L.I.-A.B.A. 847 app. A (listing federal citizen suit provisions).
146. See, e.g., La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986) ("[A]n agency literally has no power to act... unless and until Congress confers power upon it.").
147. Jonathan R. Siegel, A Theory of Justiciability, 86 TEX. L. REV. 73,103-04 (2007) (emphasis added).
148. Id. at 104.
149. Nichol, supra, note 21, at 1147. As Judge William A. Fletcher put it almost twenty years ago: In the case of a statutory right, Congress is the source both of the legal obligation and of the definition of the class of those entitled to enforce it.... So long as the substantive rule is constitutionally permissible, Congress should have plenary power to create statutory duties and to provide enforcement mechanisms for them, including the creation of causes of action in plaintiffs who act as "private attorneys general." Fletcher, supra, note 15, at 251; see also Siegel, supra, note 147, at 103-05 (discussing Congress's role and powers in relation to standing).
150. See supra text accompanying note 53.
151. Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring in part and concurring in the judgment).
152. In Public Citizen I, for example, the court's interim opinion instructed the parties to file additional briefs "addressing (i) whether [the challenged agency action] creates a substantial increase in the risk of death, physical injury, or property loss..., and (ii) whether the ultimate risk of harm to which Public Citizen's members are exposed, including the increase allegedly due to [the challenged] action, is 'substantial.'" Public Citizen I,489 F. 3d 1279,. 1297 (D.C. Cir. 2007).
153. See Petitioner's Petition for Rehearing or Rehearing en Banc at 6, NRDC I, 440 F. 3d 476 (D.C. Cir. 2006) (No. 04-1438) ("According to EPA's own risk assessments, releases of methyl bromide under the [challenged] rule will cause thousands of U.S. cases of cancer and cataracts.").
154. Public Citizen I, 489 F. 3d at 1295.
155. See supra, note 142 and accompanying text.
156. See, e.g., Raines v. Byrd, 521 U.S. 811, 829 (1997) ("The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury v. Madison] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government- action. It is this role, not