Standing and Statistical Persons: A Risk-Based Approach to Standing

Mank, Bradford
August 2009
Ecology Law Quarterly;2009, Vol. 36 Issue 3, p665
Academic Journal
This Article proposes that any individual should have standing to challenge government action that exposes her to an increased lifetime risk of death or serious injury that is one in one million or greater. Because most regulation involves statistical probabilities of harm, a plaintiff challenging a government regulatory action or inaction as insufficiently protective cannot demonstrate that he or she likely would be harmed by the allegedly inadequate regulation, but merely that a different regulation might reduce the probability of risk. The beneficiaries of a suit seeking better government regulation are, therefore, statistical persons rather than identifiable persons. By contrast, current standing law is largely based on the assumption that only identifiable persons with specific injuries can sue in Article III federal courts, although some decisions have explicitly or implicitly allowed "statistical standing" based on a probability of future injury. In Natural Resources Defense Council v. EPA, the District of Columbia Circuit recognized standing in a case involving probabilistic future risk where there was evidence demonstrating that two to four members of the Natural Resources Defense Council's nearly half a million members would develop skin cancer during their lifetimes as a result of an Environmental Protection Agency rule. Professor Heather Elliott has recently argued that the Natural Resources Defense Council v. EPA decision has the troubling implication that large public interest organizations have greater standing rights than small organizations or individuals because it is statistically more likely that one of their members would be harmed by a government regulation that allegedly is insufficiently protective of public safety. Under this Article's proposed one in one million standard, an individual or a member of a small association would have the same rights as a large organization. The proposed test would reduce the inconsistencies in how different judges or judicial circuits apply today's vague standing test. Additionally, Congress could overrule this presumptive standard and impose a different standard in a statute whenever it chose to do so.


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