• 10 May 2009

Substance or Illusion? The Dangers of Imposing a Standing Threshold

Amanda C. Leiter - Catholic University Columbus School of Law

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The article from which this essay is derived criticizes the D.C. Circuit’s evaluation of petitioners’ standing in so-called “increased-risk” cases—cases in which individuals or interest groups allege that an agency action places them at increased risk of future harm. The D.C. Circuit requires petitioners in such cases to establish that the risk they face clears some indeterminate “sufficiency” or “substantiality” bar. The article contends that neither theoretical nor practical considerations support imposition of such a standing threshold, and worse, that the threshold insulates demonstrably injurious administrative policies from review, distracts courts from issues more relevant to reviewability, imposes a substantial financial burden on citizen plaintiffs, and encroaches on Congress’s lawmaking power. This essay focuses on the last critique, arguing that the D.C. Circuit is exploiting its ostensible concern about judicial overreaching to effect a significant limitation on legislative authority to enlist the aid of citizen attorneys general in policing agency implementation of public health and environmental laws.

In Natural Resources Defense Council v. Environmental Protection Agency, petitioner Natural Resources Defense Council (NRDC) challenged an administrative rule that regulated production and use of the pesticide methyl bromide. To evaluate NRDC’s standing to sue, the D.C. Circuit calculated the “excess fatalities” that might be expected among the petitioner’s members as a result of the rule. Based on its calculations, the panel asserted that “‘[e]ven if all present NRDC members were immortal…we could expect to wait approximately 12,000 years…before seeing the first…methyl bromide [rule]-related death.’” As a result, the panel concluded, NRDC lacked standing to proceed. Although the panel has since withdrawn this math-laden opinion, subsequent cases confirm that a petitioner seeking to establish standing to raise an increased-risk claim in the D.C. Circuit must demonstrate both (1) that the challenged agency action “creates a substantial increase in…risk” and (2) that the “ultimate risk of harm to which [the plaintiff is] exposed…is [also] ‘substantial.’”1

This substantiality-of-the-risk standing threshold seems superficially plausible as a safeguard to prevent “virtually any citizen” from challenging “virtually any [agency] action.” On closer evaluation, however, the threshold reveals itself as the most far-reaching and ill-conceived maneuver in a longstanding drive to place constitutional constraints on Congress’s power to define injuries that confer standing.

That drive is rooted in cases from the 1930s and 1940s that deliberately invoked a private rights framework to reject various plaintiffs’ constitutional standing to challenge the lawfulness of progressive New Deal enactments. In such a framework, harms that do not violate a legal right are “damnum absque injuria” and cannot support a right to sue. These early standing cases said nothing, though, about Congress’s authority to expand the category of legal injury by, for example, crafting statutory citizen-suit provisions that permit the beneficiaries of a regulatory regime to challenge an agency’s misapprehension or under-enforcement of that regime.

By the early 1990s, however, the Supreme Court had called such citizen-suit provisions into question. To begin with, the Court had concluded that the key to constitutional standing is not legal injury (recognized by Congress in a duly enacted statute) but instead injury-in-fact (substantiated by concrete evidence of an injury to the particular plaintiff or to a discrete group of comparably situated individuals). In this regime, the mere existence of a statutory cause of action is not sufficient to grant standing to particular plaintiffs if they cannot also point to a factual harm from the defendant’s challenged action. Then, in Lujan v. Defenders of Wildlife, the Court went one step further, expressly suggesting that expansive citizen-suit provisions may violate Article III’s case-or-controversy requirement and encroach on the President’s responsibility “to ‘take Care that the Laws be faithfully executed’” because such provisions recognize too broad an injury, effectively permitting almost anyone to file suit to ensure “executive officers’ compliance with the law.”

Importantly, however, two of the Justices in the majority in Lujan emphasized in a partial concurrence that in their view Congress does have the authority “to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before,” provided that the relevant statute both identifies “the injury [Congress] seeks to vindicate” and ties that injury “to the class of persons entitled to bring suit.” This concurrence served to mitigate—and obscure—the significance of the majority’s holding. The majority opinion clearly “foreclose[d] ‘pure’ citizen suits,” in which someone with nothing more than an “ideological or law-enforcement interest initiates a proceeding against the government, seeking to require an agency to undertake action of the sort required by law.” But the concurrence preserved the constitutionality of more narrowly tailored citizen-suit provisions. Court-watchers speculated as to which of these somewhat contrary views would ultimately carry the day.

Between 1992 and the present, the Supreme Court largely allayed concerns that it would expand on the ideas in the Lujan majority opinion and utilize the standing inquiry to bar Congress from relying on citizen attorneys general to ensure enforcement of the nation’s environmental, public health, and welfare laws. The D.C. Circuit’s standing threshold, however, moves standing doctrine a nontrivial step in that very direction. The circuit’s requirement that plaintiffs facing a risk of future injury must demonstrate the substantiality of that risk before they may challenge the causative agency action derives from the same ostensible separation of powers concerns expressed in Lujan. Specifically, the threshold aims to ensure that courts do not overstep their constitutional role: In the D.C. Circuit’s view, if courts were empowered to hear all probabilistic injury claims, then “after an agency takes virtually any action, virtually any citizen—because of a fractional chance of benefit from alternative action—would have standing to obtain judicial review of the agency’s choice.”2 This outcome, in turn, would “expand the ‘proper—and properly limited’—constitutional role of the Judicial Branch beyond deciding actual cases or controversies, and would entail the Judiciary exercising some part of the Executive’s responsibility to take care that the law be faithfully executed.

The D.C. Circuit’s approach has little theoretical foundation and numerous theoretical and practical flaws. What is most remarkable about the approach, though, is that it goes considerably further than the Lujan majority did in limiting Congress’s power “to define injuries . . . that will give rise to a case or controversy.” As noted above, two of the six Justices who signed the majority opinion in Lujan recognized only two qualifications on congressional authority to identify new, legally cognizable injuries: To grant citizen standing, legislators must specify the injuries they aim to address and the relationship between those injuries and the class of citizens who may sue. The D.C. Circuit approach is far more limiting—no matter how specific and carefully drafted the statute, legislators may not grant standing to individuals who face only a tiny increase in risk of harm.

This outcome is sufficiently novel and important that it is worth restating. Read together, the Lujan majority and concurring opinions place a constitutional burden on legislators. By contrast, the D.C. Circuit’s substantiality-of-the-risk standing threshold places a constitutional limit on legislative authority.

The D.C. Circuit’s notion of a justiciability limit that hinges on the substantiality of the risk to the plaintiff exhibits profound confusion about the institutional roles of Congress, the agencies, and the courts. In many situations, Congress has clearly recognized a risk (for example that associated with air pollution or with injuries in car accidents), directed an agency to address that risk, and enlisted citizen attorneys general to ensure that the agency complies with its statutory duty. Implicit in the resulting legislation is the creation of a legally enforceable right to benefit from the agency’s action in the manner and to the degree envisioned by Congress. Also implicit is a reduction in the degree of power delegated to the Executive. The agency to which Congress has granted regulatory authority has the power to act only in compliance with Congress’s policy choices, as detailed in the relevant statutes and interpreted first by the agency and later (with deference) by the courts. Further, only Congress has the authority to decide whether and to what degree the agencies are free to neglect their statutory responsibilities:

If Congress wants to create a statutory scheme that may lapse in desuetude if the Executive Branch decides not to implement it, Congress is free to specify (as it occasionally does) that there shall be no private right to compel any enforcement of the scheme. If, on the other hand, Congress does not wish a particular program to be lost in vast bureaucratic hallways, . . . Congress [may] enable any citizen to demand implementation of the statutory scheme.3

In the former situation, there is no cause of action and thus no room for the court to apply a standing threshold. In the latter situation, though, a court that uses a substantiality-of-the-risk threshold to determine which citizen attorneys general have standing redefines the legal injury as limited to beneficiaries facing substantial risk, and thus revisits legislative choices Congress has already made. This outcome is doubly problematic. Not only does the court second-guess the legislators’ determination that citizen attorneys general are needed “to demand implementation of the statutory scheme,” but it also usurps the patently legislative responsibility of determining what sorts and levels of risk society should tolerate.

In short, by means of a superficially objective discussion of risk statistics, the D.C. Circuit attains precisely the outcome that critics of Lujan denounced: “A clear statutory expression of authority [to sue falls] before the notoriously amorphous demand for a constitutional ‘case.’”4 The problem is more serious in the D.C. Circuit than in the Supreme Court, however, because the Lujan Court identified a constitutional flaw that Congress could easily remedy by specifying the injury more clearly and relating that injury to the plaintiff class. In contrast, the D.C. Circuit posits a constitutional flaw that Congress lacks authority to remedy. In the D.C. Circuit, no statute, no matter how specific and well-drafted, may recognize tiny risks as legally cognizable. Thus, the standing threshold permanently and irremediably limits congressional authority, as Justice Kennedy wrote in Lujan, “to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.”

Needless to say, courts need not provide a judicial remedy to all plaintiffs who can demonstrate that agency action or inaction has placed them (or left them) at risk. Even if such expansive judicial oversight of agency action were constitutional and desirable, it would be impossible to implement. Human life is—and agency actions are—fraught with risk; granting a remedy to anyone who complains that an agency failed adequately to reduce her risk of snake bite or lightning strike would give judges unconstitutional power to review and reorder regulatory priorities. Of necessity, then, Congress and the courts must draw some lines between cognizable risk-based injuries and unreviewable exercises of agency discretion.

There is no need, however, for a new, judicially created, and under-theorized standing threshold to police this territory. Congress has already drawn some lines in the form of statutory citizen-suit provisions. If those lines are improvidently drawn, Congress could fix the problem by narrowing such provisions—perhaps requiring, for instance, that plaintiffs challenging pollution regulations live within some radius of regulated smokestacks, or that those challenging automobile safety regulations drive a certain number of miles each year. Courts, too, have identified lines, by refining the standing requirements of causation and redressability and by developing doctrines of prosecutorial discretion and deference. Adding assumption-laden and eminently manipulable risk estimates to this mix serves only to hide hard questions under a veneer of superficially simple but contested and largely misdirected mathematics.dingbat



Copyright © 2009 Georgetown Law Journal.

Amanda Leiter is Associate Professor, Catholic University Columbus School of Law.

Many thanks to Tabatha Abu El-Haj, Hope Babcock, Peter Byrne, Julie Cohen, Heather Elliott, Chai Feldblum, Richard Frankel, Amanda Frost, Craig Goldblatt, Charisma X. Howell, Greg Klass, Richard Lazarus, Carrie Menkel-Meadow, Tzili Mor, Eliza Platts-Mills, Jonathan Molot, Sam Sankar, Justin Smith, David Vladeck, Sasha Volokh, Dave Zaring, Allison Zieve, and the Georgetown Junior Law Profs for thoughts, comments, and moral support, and to Corey Talcott for outstanding research assistance.

This Editorial is based on the following full-length Article:nbsp;nbsp;Amanda Leiter, Substance or Illusion? The Dangers of Imposing a Standing Threshold, 97 GEO. L. J. 391 (2009).nbsp;nbsp;Click Here for the Full Version

  1. Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin. (hereinafter 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. (hereinafter Public Citizen II), 513 F.3d 234 (D.C. Cir. 2008) (per curiam).
  2. Public Citizen I, 489 F.3d at 1295 (internal citations omitted) (ordering supplemental briefing on plaintiff’s standing).
  3. Jonathan R. Siegel, A Theory of Justiciability, 86 TEX. L. REV. 73, 103–04 (2007) (emphasis added).
  4. Gene R. Nichol, Justice Scalia, Standing, and Public Law Litigation, 42 DUKE L.J. 1141, 1147 (1993).

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