Nat Resrc Def Cncl v. EPA

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 17, 2005               Decided March 7, 2006

                        No. 04-1438

         NATURAL RESOURCES DEFENSE COUNCIL,
                     PETITIONER

                             v.

        ENVIRONMENTAL PROTECTION AGENCY AND
        STEPHEN L. JOHNSON, ADMINISTRATOR, U.S.
          ENVIRONMENTAL PROTECTION AGENCY,
                     RESPONDENTS

   METHYL BROMIDE INDUSTRY PANEL OF THE AMERICAN
               CHEMISTRY COUNCIL,
                    INTERVENOR


          On Petition for Review of an Order of the
             Environmental Protection Agency



       David D. Doniger argued the cause for petitioner. With
him on the briefs was Amanda C. Leiter.

       Steven E. Rusak, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief were
Kelly A. Johnson, Acting Assistant Attorney General, John C.
Cruden, Deputy Assistant Attorney General, Ann R. Klee,
General Counsel, U.S. Environmental Protection Agency, and
                                 2

Diane E. McConkey, Counsel.

      David B. Weinberg, Tracy A. Heinzman, and Eric
Andreas were on the brief for intervenor.

     Before: HENDERSON and RANDOLPH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.*

        Opinion for the Court filed by Circuit Judge RANDOLPH.

        RANDOLPH, Circuit Judge: The United States and other
countries entered into a treaty in which they agreed to reduce the
use of certain substances, including methyl bromide, that
degrade the stratospheric ozone layer. The Environmental
Protection Agency (EPA) issued a rule implementing “critical
use” exemptions from the treaty’s general ban on production and
consumption of methyl bromide. The Natural Resources
Defense Council (NRDC) claims that the EPA rule violates the
treaty and the Clean Air Act. We hold that NRDC lacks
standing and therefore dismiss the petition for judicial review.

                                 I.

        In the mid-1970s, scientists discovered that certain man-
made chemicals can destroy the layer of ozone gas in the
stratosphere approximately ten to twenty-five miles above the
Earth’s surface. Stratospheric ozone absorbs ultraviolet
radiation; as the ozone layer thins, less radiation is absorbed.
Increased human exposure to ultraviolet radiation is linked to a
range of ailments, including skin cancer and cataracts.

        Amidst growing international concern about ozone


        *
          Senior Circuit Judge Edwards was in regular active service
at the time of oral argument.
                                   3

depletion, the United States and twenty-four other nations
entered into the Montreal Protocol on Substances that Deplete
the Ozone Layer, Sept. 16, 1987, S. TREATY DOC. NO. 100-10,
1522 U.N.T.S. 29 (“Montreal Protocol”). The Protocol requires
signatory nations – which now number 189 – to reduce and
eliminate their production and use of ozone-depleting chemicals
in accordance with agreed-upon timetables. Montreal Protocol
arts. 2-2I. The Senate ratified the treaty in 1988, and Congress
incorporated its terms into domestic law through the Clean Air
Act Amendments of 1990, Pub. L. No. 101-549, tit. VI, 104 Stat.
2399, 2648. Since then, the United States has reduced its use of
methyl bromide to less than 39% of its 1991 baseline.

       In 1997, the Parties “adjusted” the Protocol to require
developed-country Parties to cease “production” and
“consumption”1 of methyl bromide by 2005. See Montreal
Protocol art. 2H(5).2 In response, Congress amended the Clean

        1
          “Production” is defined as “the amount of controlled
substances produced, minus the amount destroyed [under the Protocol]
and minus the amount entirely used [to produce other chemicals].”
Montreal Protocol art. 1(5). “Consumption” is “production plus
imports minus exports of controlled substances.” Id. art. 1(6).
        2
          Current article 2H was added by “adjustment” at the Ninth
Meeting of the Parties. See U.N. Env’t Programme, Report of the
Ninth Meeting of the Parties to the Montreal Protocol on Substances
that Deplete the Ozone Layer, U.N. Doc. UNEP/OzL.Pro.9/12, annex
III (Sept. 25, 1997) (“Ninth Report”). The Protocol allows
“adjustments” to be made without formal amendment and ratification.
See Montreal Protocol art. 2(9). In incorporating the Protocol into
domestic law, Congress defined the Protocol to include “adjustments
adopted by the Parties thereto and amendments that have entered into
force.” 42 U.S.C. § 7671(9). Neither party in this case discusses
whether altering domestic law in this manner is constitutional, an issue
on which we express no view. See Edward T. Swaine, The
Constitutionality of International Delegations, 104 COLUM. L. REV.
                                 4

Air Act to require EPA to “promulgate rules for reductions in,
and terminate the production, importation, and consumption of,
methyl bromide under a schedule that is in accordance with, but
not more stringent than, the phaseout schedule of the Montreal
Protocol Treaty as in effect on October 21, 1998.” 42 U.S.C.
§ 7671c(h).

        Methyl bromide is a naturally-occurring gas with
significant “ozone depletion potential” (“ODP”). The United
States regulates methyl bromide as a “Class I” ozone-depleting
substance. See id. Methyl bromide has an ODP of 0.38-0.60.
This puts it in the middle range of substances scheduled for
elimination under the Protocol. It is not nearly as destructive as
chloroflourocarbons (ODP = 1.0) and most other class I
substances, almost all of which were phased out in 2000, 42
U.S.C. § 7671c(b). On the other hand, it is significantly more
destructive than “class II” substances, which are to be phased
out in 2030. See 42 U.S.C. § 7671d(b).

         Methyl bromide is used as a broad-spectrum pesticide.
See Protection of Stratospheric Ozone: Process for Exempting
Critical Uses From the Phaseout of Methyl Bromide, 69 Fed.
Reg. 76,982, 76,983 (Dec. 23, 2004) (codified at 40 C.F.R. pt.
82) (“Final Rule”). It is typically injected into soil as a fumigant
before several types of crops are planted. In light of its wide use
and the lack of comparable substitute pesticides, see id. at
76,985, the Protocol allows exemptions from the general ban “to
the extent that the Parties decide to permit the level of
production or consumption that is necessary to satisfy uses
agreed by them to be critical uses.” Montreal Protocol art.
2H(5); see also 42 U.S.C. § 7671c(d)(6) (“To the extent
consistent with the Montreal Protocol, the [EPA] Administrator
. . . may exempt the production, importation, and consumption
of methyl bromide for critical uses.”).

1492, 1512-15 (2004) (citing Montreal Protocol).
                                  5

        When the Parties adopted this critical use exemption,
they also issued a “decision” setting forth guidelines for
implementing the exemption. See Ninth Report, supra note 2,
at 26-27 (“Decision IX/6”). Decision IX/6 defines critical uses
as those for which the absence of methyl bromide would “result
in a significant market disruption” and for which there is no
“technically and economically feasible alternative[] or
substitute[] available.” Id. ¶ 1(a)(I), (ii). It further provides that
production and consumption of methyl bromide are to be
permitted only if “[a]ll technically and economically feasible
steps have been taken to minimize the critical use” and if
“[m]ethyl bromide is not available in sufficient quantity and
quality from existing stocks of banked or recycled methyl
bromide.” Id. ¶ 1(b)(I), (ii).

        The United States formally began the process of
establishing its 2005 critical use exemptions in May 2002, when
EPA published a notice in the Federal Register seeking
applications for 2005 and 2006 critical uses of methyl bromide
and the amounts of new production and consumption needed to
satisfy those uses. See 67 Fed. Reg. 31,798 (May 10, 2002).
EPA teams composed of biologists and economists reviewed
each application and decided which to include in the aggregate
U.S. nomination to the Parties. The final U.S. nomination,
submitted to the Montreal Protocol’s administrative body (the
“Ozone Secretariat”) in February 2003, requested a total
exemption of about ten thousand metric tons of methyl bromide
for sixteen different uses.

       The process then moved to the international stage. Two
working groups operating under the auspices of the Ozone
Secretariat – the “Methyl Bromide Technical Options
Committee” and the “Technology and Economic Assessment
Panel” – evaluated each country’s nomination and made a
recommendation to the Parties at their November 2003 meeting.
                                 6

At that meeting, the Parties deadlocked over the proposed
critical use exemptions and called an “extraordinary meeting” to
make the final decisions. See U.N. Env’t Programme, Report of
the Fifteenth Meeting of the Parties to the Montreal Protocol on
Substances that Deplete the Ozone Layer, U.N. Doc.
UNEP/OzL.Pro.15/9, at 8-11, 77-78 (Nov. 11, 2003).

         The Parties reached agreement at their First
Extraordinary Meeting in March 2004. They granted the United
States critical uses in sixteen categories, amounting to 8942
metric tons of methyl bromide. To satisfy these critical uses, the
Parties authorized 7659 metric tons of new production and
consumption, with the remainder (1283 metric tons) to be made
up from existing stocks of methyl bromide. See U.N. Env’t
Programme, Report of the First Extraordinary Meeting of the
Parties to the Montreal Protocol on Substances that Deplete the
Ozone Layer, U.N. Doc. UNEP/OzL.Pro.ExMP/1/3, at 14-15, 26
(Mar. 27, 2004) (“Decision Ex.I/3”). Several conditions
accompanied this approval. Decision Ex.I/3 noted that “each
Party which has an agreed critical use should ensure that the
criteria in paragraph 1 of decision IX/6[3] are applied when . . .
authorizing the use of methyl bromide and that such procedures
take into account available stocks.” Id. ¶ 5. The decision also
prevents the Parties from using those stocks in excess of the
overall critical use amount. Id. ¶ 3.

       With Decision Ex.I/3 in hand, EPA proposed rules to
implement the critical use exemption. See 69 Fed. Reg. 52,366
(Aug. 25, 2004). Many parties, including NRDC, submitted
comments. The Final Rule, issued in December 2004,
authorizes new production and consumption up to the limit

        3
          As discussed above, Decision IX/6 permits exemptions only
when all technically and economically feasible steps have been taken
to minimize the required use and when methyl bromide is not
available from existing stocks. Id. ¶ 1(b)(I), (ii).
                                   7

established in Decision Ex.I/3. Final Rule, 69 Fed. Reg. at
76,990 tbl.1. It also authorizes the use of stocks as permitted by
the decision, id. at 76,986, 76,991 tbl.2, and permits non-critical
users to draw upon existing stocks, id. at 76,988.4

        NRDC believes the Final Rule violates Decision IX/6
and Decision Ex.I/3 because EPA failed to disclose the full
amount of existing stocks, failed to offset new production and
consumption by the full amount of these stocks, and failed to
reserve the stocks for critical uses, and because the total amount
of methyl bromide critical use the Final Rule authorizes is not
the technically and economically feasible minimum.5 The
majority of these claims depend upon the legal status of
Decisions IX/6 and Ex.I/3.

        After oral argument, we ordered supplemental briefing
to address the question whether consensus decisions of the
Parties are “cognizable in federal court actions brought to
enforce the Protocol and the relevant terms of the Clean Air
Act.” EPA and NRDC agree that the decisions are not

         4
         After NRDC filed its petition for judicial review, the Parties
met again and approved 2006 critical uses, see U.N. Env’t
Programme, Report of the Second Extraordinary Meeting of the
Parties to the Montreal Protocol on Substances that Deplete the
Ozone Layer, U.N. Doc. UNEP/OzL.Pro.ExMP/2/3, at 5-6 (July 1,
2005), with no apparent comment on the United States’s 2005
domestic process. EPA has issued a rule to implement the 2006
exemptions. See Protection of Stratospheric Ozone: The 2006 Critical
Use Exemption from the Phaseout of Methyl Bromide, 71 Fed. Reg.
5985 (Feb. 6, 2006) (to be codified at 40 C.F.R. pt. 82).
        5
          EPA argues in turn that the plain language of the decisions
does not require that a party exhaust existing stocks of methyl bromide
before carrying out exempted production and consumption or that
existing stocks be restricted to critical uses. We express no opinion on
the merits of EPA’s and NRDC’s competing interpretations.
                                 8

“adjustments” to the Protocol. But they disagree on the legal
consequences of the decisions. The legal status of consensus
decisions of parties to a treaty, decisions not ratified by the
Senate or otherwise incorporated into domestic statutory law,
presents novel and difficult issues. We do not reach these issues
because NRDC lacks standing to press its claims.

                                 II.

        NRDC must establish that at least one of its members has
standing in his own right. Sierra Club v. EPA, 292 F.3d 895,
898 (D.C. Cir. 2002) (citing Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 342-43 (1977)). For that member, the
“irreducible constitutional minimum” is injury-in-fact,
causation, and redressability. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). NRDC claims that its members have
standing because they face a greater chance of contracting skin
cancer, cataracts, and other ailments under EPA’s Final Rule
than under NRDC’s interpretation of Decisions IX/6 and Ex.I/3.6
 The central question is whether, to the extent EPA’s rule
increases the probability of such harms, the increase amounts to
an “injury in fact” sufficiently “concrete and particularized” and
“actual or imminent, not conjectural or hypothetical” to satisfy
the demands of Article III. Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., 528 U.S. 167, 180-81 (2000) (citing Lujan, 504
U.S. at 560-61).

      NRDC supports its claim with an affidavit from Dr.
Sasha Madronich, which states that “it is reasonable to expect

        6
         The chain of causation presumably goes something like this:
EPA has permitted too much new production and consumption of
methyl bromide, which will result more emissions, which will increase
ozone depletion, which ultimately will adversely affect NRDC’s
members’ health. In light of our disposition, we express no opinion
regarding the sufficiency of this causal chain.
                                  9

more than 10 deaths, more than 2,000 non-fatal skin cancer
cases, and more than 700 cataract cases to result from the 16.8
million pounds of new production and consumption allowed by
the 2005 exemption rule.” Aff. of Dr. Sasha Madronich ¶ 8.
There are reasons to doubt Dr. Madronich’s methodology and
assumptions.7 A key input in his model, for instance, is a
projection of methyl bromide critical use exemptions from 2005
through 2018. Id. att. 1, at Ex.4.1.1. But the record contains no
evidence to suggest that EPA plans to make such nominations
beyond 2006. Dr. Madronich also fails to mention that his
model predicts health outcomes over a period of 145 years. Id.
att. 2, at Ex.8.3.1. In addition, NRDC assumes that Dr.
Madronich’s numbers are for the United States alone, but there
is no reason to assume this. Ozone depletion is a world-wide
phenomenon, and nothing in Dr. Madronich’s affidavit or its
supporting material is restricted only to this country.

        But even if the conclusions Dr. Madronich reaches are
accurate and even if they pertain only to the United States, the
results he cites are minuscule. Take, for example, his estimate
of ten more deaths from skin cancer. There are approximately
293 million people in the United States. With ten more skin
cancer deaths over 145 years, the probability of fatality from
EPA’s rule comes to 1 in 4.2 billion per person per year.8 As the
        7
           The intervenor’s expert, for example, asserts that Dr.
Madronich’s model fails to account for key behavioral variations that
affect health outcomes, Aff. of Dr. Louis Anthony Cox, Jr. ¶¶ 8-9, and
that the model improperly assumes a perfectly linear relationship
between methyl bromide emissions and adverse health effects, id.
¶ 10.
        8
          To determine the additional likelihood that someone in the
United States will die of skin cancer during the next 145 years, we
divide the total number of deaths by the U.S. population during the
next 145 years (assuming zero population growth):
                                            10

intervenor’s expert points out, the estimated effect on the subset
of the U.S. population who are NRDC members (about 490,000)
is infinitesimal. “[E]ven if all present NRDC members were
immortal we could expect to wait approximately 12,000 years
. . . before seeing the first . . . methyl bromide exemption-related
death.” Aff. of Dr. Louis Anthony Cox, Jr. ¶ 12.9



             10 deaths                                   10 deaths
                                        =                                          =
293,000,000 people ⋅ 145 years              2.93 × 10 people ⋅ 1.45 × 10 2 years
                                                     8



            10 deaths                        10 deaths         1
                                    =                        × 10 ≈
4.2485 × 10   10
                   people ⋅ years       4.2485 people ⋅ years 10


                       deaths            1
2.3538 × 10 −10                   ≈              deaths per capita year
                    people ⋅ years 4,200,000,000

        The other risks Dr. Madronich cites are similarly small. This
analysis shows that an individual in the United States has a 1 in 21
million chance of contracting non-fatal skin cancer and a 1 in 61
million chance of getting a cataract over the next 145 years.


        9
          To determine excess fatalities among current NRDC
members, we simply multiply the total U.S. deaths per capita year
(above) by the number of NRDC members and their remaining years
of exposure to the sun (presumed to be 100 to generate an upper
bound):

   2.3538 deaths
                          × 490,274 people × 100 years =
1010 people ⋅ years

2.3538 deaths          4.90274 × 10 5 1 × 10 2 115399 deaths
                                                 .
                   ×                 ×        ≈              =
    1010                     1            1        10 3
                                 11


        The Supreme Court requires that an alleged injury be
“actual or imminent, not ‘conjectural’ or ‘hypothetical.’”
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (quoting City
of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)); see 520
S. Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 962-63 (7th
Cir. 2006). Some injuries fit easily within or without the
common definitions of “actual” or “imminent.” Others do not.
Among those which fit least well are purely probabilistic
injuries. Environmental or public health injuries, for example,
may have complex etiologies that involve the interaction of
many discrete risk factors. The chance that one may develop
cancer can hardly be said to be an “actual” injury – the harm has
not yet come to pass. Nor is it “imminent” in the sense of
temporal proximity. Cf. Lyons, 461 U.S. at 105-06. Yet the
Supreme Court has reminded us that imminence is “a somewhat

115399 deaths
 .
                =.0115399 NRDC deaths
     10 2

        To determine mathematically how often one would expect the
death of an NRDC member to occur, we simply create an equality and
solve for x:

 .0115399 deaths 1 death
                =
    145 years     x years


(.0115399 deaths)( x years) = 145 deaths ⋅ years


            145 deaths ⋅ years
x years =
            .0115399 deaths

x years ≈ 12,565.0657 years
                               12

elastic concept,” the purpose of which is to “ensure that the
alleged injury is not too speculative for Article III purposes.”
Lujan, 504 U.S. at 564 n.2; see also Fla. Audubon Soc’y v.
Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc). And the
Court has often held that “threatened” injuries can give rise to
standing. See Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 472 (1982);
see also Friends of the Earth, Inc. v. Gaston Copper Recycling
Corp., 204 F.3d 149, 160 (4th Cir. 2000) (en banc).

        In this court, “well established” precedent requires that
the injury alleged be “substantially probable.” Fla. Audubon, 94
F.3d at 666; see Sierra Club v. EPA, 292 F.3d 895, 898, 899,
902 (D.C. Cir. 2002); Am. Petroleum Inst. v. EPA, 216 F.3d 50,
63-64, 67 (D.C. Cir. 2000); La. Envtl. Action Network v. EPA,
172 F.3d 65, 68 (D.C. Cir. 1999); Kurtz v. Baker, 829 F.2d 1133,
1144 (D.C. Cir. 1987). The Supreme Court too has spoken of
the need for a “substantial probability” of harm, Warth v. Seldin,
422 U.S. 490, 504 (1975), and of the requirement that the
plaintiff “demonstrate a realistic danger of sustaining a direct
injury as a result” of the governmental action at issue. Babbitt
v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979);
see also 520 S. Mich. Ave. Assocs., 433 F.3d at 962 (“Standing
depends on the probability of harm . . ..”).

        Probability is a measurement or an estimate of the
likelihood of an event occurring. We have never specified
exactly what counts as a “substantial probability.” In some cases
it might not be possible to quantify the probability of harm. In
other cases, the “risk” – that is, the combination of the
probability of a negative event and the impact of it – may affect
the assessment. See Mountain States Legal Found. v. Glickman,
92 F.3d 1228, 1234 (D.C. Cir. 1996). But one thing is certain.
Whatever “substantial probability” means, it at least means – as
we said in Mountain States Legal Foundation v. Glickman – a
                                13

“non-trivial” chance of injury. Id. at 1235. The probability of
harm to NRDC’s members from EPA’s rule is by any measure
not of that magnitude.

        NRDC contends, and several other courts of appeals
have suggested, that an increase in probability itself constitutes
an “actual or imminent” injury. See Baur v. Veneman, 352 F.3d
625, 634 (2d Cir. 2003); Cent. Delta Water Agency v. United
States, 306 F.3d 938, 947-48 (9th Cir. 2002); Gaston Copper,
204 F.3d at 160; see also Covington v. Jefferson County, 358
F.3d 626, 652 (9th Cir. 2004) (Gould, J., concurring). Put
another way, 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.
Strictly speaking, this cannot be correct. For example, if the
original probability of harm is 1 in 100 billion per person per
year, doubling the probability to 2 in 100 billion would still
leave an individual with a trivial chance of injury. The Baur
court acknowledged the “potential expansiveness of recognizing
exposure to enhanced risk as injury-in-fact.” 352 F.3d at 636.
“Expansiveness” is an understatement. See id. at 651 n.3
(Pooler, J., dissenting) (“Allowing a lawsuit to go forward on
the basis of such a remote harm would be akin to saying that any
citizen has standing to sue the National Aeronautics and Space
Administration because it currently does not do enough to
prevent meteorites from falling to Earth.”); Ctr. for Law &
Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161 (D.C. Cir. 2005)
(“[W]ere all purely speculative ‘increased risks’ deemed
injurious, the entire requirement of ‘actual or imminent injury’
would be rendered moot . . ..”); Shain v. Veneman, 376 F.3d
815, 818 (8th Cir. 2004) (rejecting “the proposition that a
heightened risk of future harm is a cognizable injury”).

        In any event, the law of this circuit is that an increase in
the likelihood of harm may constitute injury in fact only if the
                                 14

increase is sufficient to “take a suit out of the category of the
hypothetical.” Mountain States, 92 F.3d at 1234-35 (quoting
Vill. of Elk Grove Vill. v. Evans, 997 F.2d 328, 329 (7th Cir.
1993)); see La. Envtl. Action Network, 172 F.3d at 68; Fla.
Audubon, 94 F.3d at 666; accord Shain, 376 F.3d at 818. And
as we have said, the probability of additional deaths and other
ailments to NRDC’s members resulting from EPA’s rule hardly
makes their alleged injury in fact anything other than
“speculative” and hypothetical. Lujan, 504 U.S. at 564 n.2;
Mountain States, 92 F.3d at 1234-35.

        For the same reasons, there is nothing to NRDC’s
assertion that its members must now add to the precautions they
already take against exposure to sunlight.             Given the
probabilities, any extra precautions in response to EPA’s rule
would be irrational. “It is the reality of the threat of . . . injury
that is relevant to the standing inquiry, not the plaintiff’s
subjective apprehensions.” Lyons, 461 U.S. at 107 n.8.

       Because NRDC lacks standing, the petition for review is
dismissed.

                                                        So ordered.