The NRDC v. EPA decision discussed below is also interesting for its treatment of standing. When NRDC first sued to challenge the EPA's methyl bromide exemptions, the D.C. Circuit held that the environmental organization lacked standing to bring the claim. NRDC argued that the EPA's rule, by allowing for the greater use of methyl bromide, would result in marginally greater ozone depletion, increasing ground-level exposure to UV-B radiation, increasing health risks for NRDC's members. Specifically, NRDC argued "its members have standing because they face a greater chance of contracting skin ailments, cataracts, and other ailments" due to the EPA's decision than they would face had the EPA adopted a more stringent rule, such as that NRDC claimed was required by the Montreal Protocol.

The D.C. Circuit rejected this claim on the grounds that the risks alleged by the NRDC were too small and inconsequential to constitute an "injury-in-fact." While acknowledging that the NRDC had alleged a "probabilistic injury," in that there was scientific evidence suggesting an increase in various health risks due to the increased use of methyl bromide, the Court concluded that the risk was still insufficient to support standing.

the fact that governmental action or inaction increases the likelihood of injury -- regardless of the magnitude of the increase -- constitutes injury in the constitutional sense . . . cannot be correct.

Rather, the Judge Randolph wrote for the court, the injury must be "substantially probable," which means, at the very least, that there must be "a 'non-trivial chance of injury." Calculating the increased risk from increased methyl bromide use on an annualized basis, the court concluded the risk was far too small to meet this test.

The NRDC filed a petition for rehearing, producing a second opinion with more favorable results (at least on the standing question). According to the court, "NRDC and EPA offered new information" in their later briefs that "led us to change our view of the standing issue." [As noted below, however, NRDC still lost the suit, albeit on other grounds.]

In its superseding opinion, the D.C. Circuit panel stuck to its formulation of the standing test. For an increased risk to satisfy the injury requirement, petitioners must "demonstrate a 'substantial probability' that they will be injured." A minor statistical chance is not enough. Nonetheless, the Court now accepted the NRDC's claims.

The parties vigorously dispute whether we were correct to hold as a quantitative matter that NRDC's alleged injury was trivial or whether, in NRDC's words, any "scientifically demonstrable increase in the threat of death or serious illness," is sufficient for standing. This question has given rise to a conflict among the circuits. . . . On reconsideration, we have determined that the question is one we do not have to answer in this case. EPA's expert, who built the quantitative model on which both sides rely, now informs us that "[e]xpressing the risk in annualized terms is not practical" and "it is more appropriate to express the risk as a population's cumulative or lifetime risk." The lifetime risk that an individual will develop nonfatal skin cancer as a result of EPA's rule is about 1 in 200,000 by the intervenor's lights, or 1 in 129,000 by EPA's. Even if a quantitative approach is appropriate -- an issue on which we express no opinion -- this risk is sufficient to support standing. One may infer from the statistical analysis that two to four of NRDC's nearly half a million members will develop cancer as a result of the rule.

As to causation, NRDC's asserted injuries are linked to EPA's action through a fairly straightforward chain: EPA has permitted too much new production and consumption of methyl bromide, which will result in more emissions, which will increase ozone depletion, which will adversely affect the health of NRDC's members. This injury can be redressed if EPA does not permit such excessive production and consumption of methyl bromide.

As a doctrinal matter, it has to be correct that increases in environmental risks can be sufficient to support standing. Yet it also must be the case that, at some point, a risk is sufficiently small that it can no longer be considered both "concrete and particularized" and "actual or imminent" -- the requirements for injury-in-fact under current law. A "substantial probability" test may well capture this distinction but, as this litigation makes clear, that is anything but a precise formulation.