Delegation to International Treaty Organizations:

As Julian Ku notes on Opinio Juris, the U.S. Court of Appeals for the D.C. Circuit's opinion in NRDC v. EPA has potentially important implications for the domestic implementation of international treaty commitments. Specifically, the D.C. Circuit panel held that the post-ratification consensus agreements reached by parties to the Montreal Protocol on Substances that Deplete the Ozone Layer (of which the United States is one), are not "law" enforceable in federal courts.

Methyl bromide, a naturally occurring gas that is also used as a fumigant in crop and produce production, is one of the substances to be phased out under the Montreal Protocol. The U.S. ratified the protocol and subsequently adopted implementing legislation as part of the 1990 Amendments to the Clean Air Act. In 2004, the EPA issued a rule identifying the "critical uses" of methyl bromide that are exempt from the general ban on production and consumption. NRDC believed that the EPA's rule was too permissive, and violated the Montreal Protocol, so it sued in federal court.

The first time around, NRDC lost on standing grounds (more on that in another post). On rehearing, however, the D.C. Circuit found NRDC had standing, but rejected NRDC's claim that the EPA's action violated U.S. law. Even if the EPA's methyl bromide crucial use exemptions were broader than allowed under post-ratification decisions made by the parties to the Montreal Protocol, the court held in an opinion by Judge Randolph, such decisions "are not 'law' within the meaning of the Clean Air Act and are not enforceable in federal court."

If the "decisions" are "law" -- enforceable in federal court like statutes or legislative rules -- then Congress either has delegated lawmaking authority to an international body or authorized amendments to a treaty without presidential signature or Senate ratification, in violation of Article II of the Constitution. . . .

A holding that the Parties' post-ratification side agreements were "law" would raise serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers. We need not confront the "serious likelihood that the statute will be held unconstitutional." . . . It is far more plausible to interpret the Clean Air Act and Montreal Protocol as creating an ongoing international political commitment rather than a delegation of lawmaking authority to annual meetings of the Parties. . . .

Our holding in this case in no way diminishes the power of the Executive to enter into international agreements that constrain its own behavior within the confines of statutory and treaty law. The Executive has the power to implement ongoing collective endeavors with other countries. . . . Without congressional action, however, side agreements reached after a treaty has been ratified are not the law of the land; they are enforceable not through the federal courts, but through international negotiations.

Judge Edwards also wrote a concurring opinion addressing some of the implications of the decision for the enforcement of other international agreements, arguing that the opinion should not be read to preclude the enforcement of post-ratification decisions under other agreements in other contexts:

we do not decide here whether, once the United States undertakes a substantive obligation in a treaty, and at the same time undertakes to abide by the result of a specified dispute resolution process before an international tribunal, it is bound by the judgments of the tribunal no less than it is by the treaty that is the source of the substantive obligation. That question is not before us.

Although the decision does not directly hold that Congress cannot delegate policy authroity to international orgnaizations, it highlights the constitutional questions that such a delegation would raise. It is one thing to delegate quasi-legislative authority to a domestic agency, whether in the executive branch or an "independent" agency. It is quite another to delegate such authority to an international entity that is not bound by U.S. law or responsive to U.S. constituencies.

Second Time's the Charm on Standing:

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.