No Legs to Stand On
In early March, the U.S. Court of Appeals for the D.C. circuit denied a Natural Resources Defense Council (NRDC) petition for review of EPA’s 2004 methyl bromide rule. The panel of three judges stated that the chance of any NRDC member incurring any injury as a direct result of the rule, a primary criteria for showing standing, is “infinitesimal.”
EPA’s rule authorizes new production and consumption of methyl bromide, as well as the use of existing stocks, as dictated by the Montreal Protocol on Substances that Deplete the Ozone Layer. NRDC argued that the EPA’s final rule violated the critical use exemptions of the Protocol by failing to properly take into account existing U.S. stocks of methyl bromide. However, the judges did not rule on this argument, focusing rather on whether NRDC has “standing” to bring the case in the first place.
Under Article III of the U.S. Constitution, a plaintiff has standing only if they - or in this case one or more NRDC members - have incurred an actual injury as a result of the defendant’s action and only if a decision in the plaintiff’s favor has the potential to redress that injury. NRDC claimed its members (490,000 people) have standing since EPA’s final rule, by slowing down the phase out of an ozone depleting substance, increases their risk of getting skin cancer and cataracts.
However, the judges severely criticized the NRDC’s argument, which was based on an affidavit from a staffer at the National Center of Atmospheric Research. The staff member said it is reasonable to expect more than 10 deaths, 2,000 non-fatal cases of skin cancer and 700 cataract cases to occur in the U.S. as a result of the rule. These negative effects of the phase out were questioned by the court, and it determined that the chance of any single NRDC member suffering harm was almost non-existent.
The court also analyzed what exactly “injury” means, and referenced several Supreme Court rulings. That court has established that injury must be actual or imminent, not conjectural or hypothetical, writing “The chance that one may develop cancer can hardly be said to be an ‘actual’ injury - the harm has not yet come to pass. Nor is it imminent in the sense of temporal proximity.”
The ruling also notes that several other courts of appeals have suggested that any increase in the probability of injury due to governmental action or inaction constitutes “injury” for the purpose of showing standing. “Strictly speaking, this cannot be correct,” stated the ruling. “For example, if the original probability of harm is 1 in 100 billion per persons per year, doubling the probability to 2 in 100 billion would still leave an individual with a trivial chance of injury... The law of this circuit is that an increase in the likelihood of harm may constitute injury in fact only if the increase is sufficient to ‘take a suit out of the category of hypothetical’ and that is not the case here.” (Pesticide & Toxic Chemical News, 3/13/06).
