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

Abstract:     
This Article proposes that any individual has standing to challenge government action that exposes her to an increased lifetime risk of 1 in 1 million or greater of death or serious injury. 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 would likely be harmed by the allegedly inadequate regulation, but merely that a different regulation might reduce the probability of future harm. The beneficiaries of a suit seeking better government regulation are, therefore, statistical persons rather than identifiable persons. By contrast, 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 Res. Def. Council v. EPA (NRDC), 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 NRDC's nearly half a million members would develop skin cancer during their lifetimes as a result of an EPA's rule. Professor Elliott has recently argued that the NRDC 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 is allegedly insufficiently protective of public safety. Under the Article's proposed 1 in 1 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. Congress could overrule this prudential judge-made standard and impose a different standard in a statute whenever it chose to do so. My recent articles on standing include: (1) Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts v. EPA's New Standing Test for States, 49 William & Mary L. Rev. 1701 (2008); (2) Standing and Future Generations: Does Massachusetts v. EPA Open Standing for the Unborn?, Columbia J. Envtl. L. (forthcoming 2009).

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