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Risky Business? Massachusetts, Risk-Based Harm, and Standing in the D.C. Circuit

September 19, 2007

Standing to bring suit has again taken center stage following the Supreme Court’s decision last term in Massachusetts v. EPA. Now all eyes have turned to how the D.C. Circuit, where many important environmental cases are heard, may alter its own standing jurisprudence. At issue is the standard for demonstrating “injury in fact,’ particularly in environmental and public safety cases where plaintiffs allege a probability of future harm due to increased risk. An analysis of recent D.C. Circuit cases like NRDC v. EPA (involving EPA’s air toxics rule), Public Citizen v. NHTSA (tire inflation standards), and NRDC v. EPA I & II (methyl bromide) may shed light on the development of standing doctrine in the Circuit, especially with respect to risk-based harm, in the wake of Massachusetts.

Attorneys who participated in these cases discussed their insights and the practical implications for environmental litigants. Is the D.C. Circuit moving toward a more quantitative approach to standing? Should it? What are the likely consequences of such a shift?

Moderator:
Bruce Myers
, Senior Attorney, Environmental Law Institute

Panelists:

Amanda Leiter
, Visiting Professor, Georgetown University Law Center; former attorney, NRDC
Chet Thompson, Partner, Crowell & Moring; former EPA Deputy General Counsel
David B. Weinberg, Partner, Wiley Rein LLP; counsel for Methyl Bromide Industry Panel of the American Chemistry Council
Allison Zieve, Staff Attorney, Public Citizen Litigation Group