DC Circuit Cases Involving “Increased Risk of Harm” from Agency Action
Recent and pending cases in the DC Circuit have generated confusion about when a claim of increased risk of harm resulting from an agency action will be deemed sufficient to support legal standing—and created fears that this important court may be raising the standing bar for environmental and other public interest plaintiffs.
Discussion & Analysis: The U.S. Court of Appeals for the District of Columbia Circuit is widely viewed as the second-most important court in the nation, behind only the Supreme Court. On matters of administrative and environmental law, the DC Circuit is arguably more important, given that it has primary or exclusive jurisdiction over challenges to certain federal agency actions under many environmental laws, and that the Supreme Court accepts very few cases for review each year.
A public interest plaintiff challenging an agency action (or failure to act) under an environmental statute is often concerned with the increased risk of harm that will result from the agency’s action. More and more, agency defendants are arguing in response that the claimed increase in risk does not rise to the level of an “injury in fact” that will support standing under Article III of the Constitution.
The DC Circuit recently articulated the following “substantial probability” test for determining whether a plaintiff has standing to bring a claim of increased risk of harm: can the plaintiff demonstrate both (1) a substantially increased risk of harm from the defendant’s action; and (2) a substantial probability of harm, with that increased risk taken into account? In other words, can the plaintiff show that the defendant’s action not only caused plaintiff’s risk level to increase substantially from where it stood before, but also that the new, overall risk level is itself substantial? The terminology here is slippery, and the DC Circuit has offered no hard-and-fast rules for determining when either the underlying increase in risk, or the resulting probability of harm, is substantial enough for purposes of this test. The Court has, however, indicated that it intends to apply a “strict understanding” of what sorts of increases in risk and probability of harm “count” as substantial.
Much of the current confusion over the DC Circuit’s environmental standing jurisprudence derives from the court’s about-face last year in NRDC v. EPA, a case where the court applied a version of its “substantial probability” test. In its initial opinion in the case, the court declined to recognize standing on behalf of an environmental organization challenging an EPA methyl bromide rule. The court had purported to quantify the precise increase in annual risk that a member of the plaintiff environmental group would experience due to the rule, and then concluded that the resulting risk level did not support a finding of standing.
Five months later, on a petition for rehearing, the court reversed itself on the standing issue and withdrew its earlier opinion entirely. The court claimed that “new information” from the parties led the court to conclude that plaintiff did have standing. Discarding its earlier annualized approach to risk, the court now explained that the lifetime risk of a member of plaintiff’s organization developing nonfatal skin cancer as a result of the EPA rule stood somewhere between 1 in 129,000 and 1 in 200,000—a level “sufficient to support standing.”
In another recent DC Circuit decision, the court considered the standing of environmental groups to challenge final EPA Clean Air Act rules that regulate pollution resulting from the processing of plywood and composite wood products. The court easily found standing based on evidence that specific members of the plaintiff organizations “use or live in areas affected” by the facilities subject to the EPA air pollution rules, have changed their behaviors as a result of air pollution, and “are persons ‘for whom the aesthetic and recreational values of the area [are] lessened by the challenged activity.’” Thus, in a case lending itself to a substantial probability analysis focusing on the increased risk of harm resulting from EPA’s rule, the court applied a traditional standing analysis that examined how plaintiffs residing near the regulated entities were affected. The plywood case may signal an approach to proving standing that avoids the nettles inherent in meeting the DC Circuit’s “substantial probability” test.
Several questions remain unanswered in the wake of recent DC Circuit rulings in increased-risk-of-harm cases. First, when is a quantified, scientifically demonstrable increase in risk “substantial enough” to rise to the level of “injury in fact?” Second, and closely related, when will the court require a plaintiff to quantify the claimed increased risk? Third, what role does the nature and magnitude of the threatened injury play in the substantial probability analysis? That is, to what extent should the court focus not just on the likelihood that the harm will occur, but on the severity and consequences of that harm if it does occur?
Key Opinion: NRDC v. EPA , 440 F.3d 476 (D.C. Cir. 2006) (NRDC I), vacated by NRDC v. EPA, 464 F.3d 1 (D.C. Cir. 2006) (NRDC II) (methyl bromide); NRDC v. EPA, 489 F.3d 1364 (D.C. Cir. 2007) (plywood); and Public Citizen v. NHTSA , __F.3d__, 2008 WL 169778 (D.C. Cir. Jan. 22, 2008) and 489 F.3d 1279 (D.C. Cir. 2007) (consumer litigation: tire inflation). See also Mountain States Legal Foundation v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996).
See Also: For a recent decision outside of the DC Circuit finding that environmental plaintiffs had standing to bring a claim under the Resource Conservation and Recovery Act (RCRA) citizen suit provision for “probabilistic” harm resulting from mercury contamination, see Maine People’s Alliance v. Mallinckrodt, Inc., 471 F.3d 277 (1st Cir. 2006). See also this discussion of the DC Circuit’s approach to standing in environmental cases involving claims of “procedural” injury —again, relying on a “substantial probability” approach.
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