January 23, 2008
One question vexing courts and regulators is what to do about people who allege that a regulation of, say, toxic emissions or airplane maintenance practices, injures them because it increases the risk that they will be injured in the future. The risk, after all, might be tiny - is a.000001% increased chance of getting sick an "injury" that can be used to afford standing? Moreover, the whole point of these sorts of suits is that individuals are trying to sue the government not because of something it has done to them, but because it has failed to adequately regulate someone else. That also seems weird to some, though not that weird to me.
Today the DC Circuit decided that Public Citizen couldn't challenge a NHTSA tire regulation because of an increased risk of harm to its members. The opinion is here, and Public Citizen tried to establish the risk to its members through statistics. The Courts decided that Public Citizen's statistics were bad ("Public Citizen’s calculations are unreliable"), noted that in an en banc case the DC Circuit ought to eliminate the increased risk form of standing entirely, and vowed to until that time to interpret risk standing claims "strictly."
It was, in short, a bad day to be a public interest group - or indeed, anyone who wants to challenge a safety regulation other than a regulated industry that would incur costs because of the regulation. It would be great if Congress would set minimum risk thresholds for citizens who want to sue over the inadequacy of safety regulations, but that is the problem with standing law: it is based on the constitution, and so cuts Congress entirely out of the deal. Still, if Congress doesn't try to set some guidelines here, it may never get the chance.
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