Public Citizen, Inc. v. National Highway Traffic Safety Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 16, 2007 Decided June 15, 2007

No. 05-1188

PUBLIC CITIZEN, INC., ET AL.,
PETITIONERS

v.

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION,
ET AL.,
RESPONDENTS

ALLIANCE OF AUTOMOBILE MANUFACTURERS,
INTERVENOR

Consolidated with
05-1265, 05-1294, 05-1309, 05-1391

On Petitions for Review of Orders of the
United States Department of Transportation

Marc D. Machlin argued the cause for petitioners. With
him on the briefs were Charles H. Carpenter, Peter H. Gunst,
Brian Wolfman, and Allison M. Zieve. Christopher J. Huber
entered an appearance.

H. Thomas Byron, III, Attorney, U.S. Department of
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Justice, argued the cause for respondents. With him on the
brief were Peter D. Keisler, Assistant Attorney General,
Douglas N. Letter, Attorney, Paul M. Geier, Assistant
General Counsel, National Highway Traffic Safety
Administration, and Lloyd S. Guerci, Assistant Chief Counsel.

Erika Z. Jones argued the cause for intervenor Alliance of
Automobile Manufacturers in support of respondents. With
her on the brief were Adam C. Sloane, John T. Whatley, and
Nancy Elizabeth Bell.

Before: SENTELLE, RANDOLPH and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge
KAVANAUGH, in which Circuit Judge RANDOLPH joins.

Opinion concurring in part and dissenting in part filed by
Circuit Judge SENTELLE.

KAVANAUGH, Circuit Judge: In a hurry as they tend to
the responsibilities of work and family, many American
drivers do not regularly check the tire pressure on their cars.
This can cause problems for the drivers and their passengers –
and for others on the road – because driving a car with
severely under-inflated tires increases the risk of serious
accidents. After a series of accidents and deaths caused by
tire blowouts in the late 1990s, Congress decided to make it
easier for drivers to maintain adequate tire pressure. Congress
enacted the Transportation Recall Enhancement,
Accountability, and Documentation Act, known as the
TREAD Act. This legislation required the Secretary of
Transportation to “complete a rulemaking for a regulation to
require a warning system in new motor vehicles to indicate to
the operator when a tire is significantly under inflated.” Pub.
 3

L. No. 106-414, § 13, 114 Stat. 1800, 1806 (2000).

After notice-and-comment rulemaking, the Secretary of
Transportation, acting through the National Highway
Transportation Safety Administration, adopted Federal Motor
Vehicle Safety Standard 138. See 49 C.F.R. § 571.138. The
new standard requires automakers to include an automatic tire
pressure monitoring system that turns on a warning light when
tire pressure falls below a pre-determined level. See Tire
Pressure Monitoring Systems, 70 Fed. Reg. 18,136, 18,136-37
(Apr. 8, 2005). The requirement is being phased in; most cars
now being manufactured must meet the new standard, and
nearly all cars manufactured after September 2007 must meet
it. See id. at 18,189.

Automakers have accepted the new standard without
court challenge. But the 130,000-member organization Public
Citizen, four major tiremakers, and the Tire Industry
Association (which includes tire manufacturers and retailers)
have petitioned for review, arguing that the rule does not meet
statutory requirements. The key initial question for us is
petitioners’ standing under Article III of the Constitution.
The tire industry petitioners’ theory of how Standard 138
might cause them harm is far too attenuated, and we conclude
that they lack standing. For its part, Public Citizen seeks to
establish standing based on an alleged increased risk of harm
to its members who drive or ride in cars. As we will explain,
we must seek supplemental submissions to determine whether
Public Citizen has standing.

I

Federal highway safety laws aim to “reduce traffic
accidents and deaths and injuries” to persons “resulting from
traffic accidents.” 49 U.S.C. § 30101. To meet this goal, the
 4

Secretary of Transportation is authorized to prescribe motor
vehicle safety standards. Id. § 30111(a). As to tires, the
relevant federal statute requires that automakers install tires
capable of supporting the vehicle when it is loaded with a
reasonable amount of luggage and the maximum number of
passengers the vehicle is designed to carry. See id.
§ 30123(c). Under the Secretary of Transportation’s Safety
Standard 110, which governs tire selection, automakers must
print the recommended tire inflation pressure on a placard,
often visible in the driver’s side door jamb; this is called the
“placard pressure.” See 49 C.F.R. § 571.110, S4.3.

In August 2000, Firestone (a predecessor of petitioner
Bridgestone/Firestone North American Tire) began recalling
14.4 million tires because of numerous complaints of tire
failure and resulting accidents on Ford sport utility vehicles
equipped with Firestone tires. In the aftermath of that
headline-grabbing recall, Congress enacted and President
Clinton signed the Transportation Recall Enhancement,
Accountability, and Documentation (TREAD) Act. Pub. L.
No. 106-414, 114 Stat. 1800 (2000). The TREAD Act
imposed new requirements governing tire safety. In
particular, Section 13 of the TREAD Act instructed the
Secretary to “complete a rulemaking for a regulation to
require a warning system in new motor vehicles to indicate to
the operator when a tire is significantly under inflated.” Id.
§ 13, 114 Stat. at 1806.

The Secretary, acting through the National Highway
Traffic Safety Administration, published a proposed rule
implementing the TREAD Act directive. See Tire Pressure
Monitoring Systems, 66 Fed. Reg. 38,982, 38,982-83
(proposed July 26, 2001). NHTSA set forth evidence that
driving on severely under-inflated tires – that is, tires
insufficiently inflated to bear the load placed on them – can
 5

result in a number of serious consequences. An under-
inflated tire heats up when the car is driven, and heat weakens
tires, raising the risk of tire failure. See id. at 38,985-86. In
addition to contributing to tire blowouts, under-inflated tires
play a role in various kinds of crashes, including those caused
by “an increase in stopping distance; skidding and/or a loss of
control of the vehicle in a curve or in a lane change maneuver;
or hydroplaning on a wet surface.” Id. at 38,986. Moreover,
under-inflated tires do not last as long as those driven at
adequate pressures, and cars with under-inflated tires burn
more fuel than cars with correctly inflated tires. Id.

After receiving comments, NHTSA published a final rule
in 2002. See Tire Pressure Monitoring Systems, 67 Fed. Reg.
38,704, 38,704-05 (June 5, 2002). Public Citizen sought
review in the United States Court of Appeals for the Second
Circuit, which vacated the rule as inconsistent with the
TREAD Act and the Administrative Procedure Act. See Pub.
Citizen, Inc. v. Mineta, 340 F.3d 39, 42, 62 (2d Cir. 2003).
On remand, NHTSA sought comments on a new version of
the rule. See Tire Pressure Monitoring Systems, 69 Fed. Reg.
55,896, 55,896-97 (proposed Sept. 16, 2004). On April 8,
2005, NHTSA published the final rule establishing Federal
Motor Vehicle Safety Standard No. 138. Tire Pressure
Monitoring Systems, 70 Fed. Reg. 18,136, 18,136,
reconsideration granted in part, 70 Fed. Reg. 53,079 (Sept. 7,
2005).

Standard 138 requires automakers to install tire pressure
monitors that can detect when the pressure in one or more of
the vehicle’s tires is (i) 25 percent or more below placard
pressure or (ii) 20 psi or less, for most cars. See id. at 18,143.
Under Standard 138, the tire pressure monitor must cause the
dashboard warning light to turn on within 20 minutes after a
tire becomes significantly under-inflated (that is, after a tire
 6

reaches the warning threshold). See id. at 18,147-48. The
light stays on until the driver corrects the tire pressure.

The manufacturer must certify that the monitor works for
the vehicle’s first tire set, but not for replacement tires. When
the car is fitted with replacement tires for which the monitor
cannot detect under-inflation, the monitor must trigger a
malfunction light (distinct from the light indicating significant
under-inflation) that does not switch off unless the driver
installs compatible tires. See id. at 18,160. NHTSA
estimated that, at “the high end,” as many as 10 percent of all
replacement tires may be incompatible with existing monitors.
OFFICE OF REGULATORY ANALYSIS & EVALUATION, U.S.
DEP’T OF TRANSP., FINAL REGULATORY IMPACT ANALYSIS:
TIRE PRESSURE MONITORING SYSTEM FMVSS NO. 138, at II-
10 to II-11 (2005).

Standard 138 also requires automakers to include an
owner’s manual statement highlighting the presence and
function of the tire pressure monitor. 70 Fed. Reg. at 18,164-
66. In addition, the owner’s manual must inform the driver
that each tire “should be checked monthly when cold” and
should be inflated to the placard pressure; the manual also
must note the dangers of driving on significantly under-
inflated tires. Id. at 18,166.

The monitor requirement applies to so-called new light
vehicles – those weighing 10,000 pounds or less, including
passenger cars, sport utility vehicles, and light trucks – which
for convenience we refer to simply as “cars.” See id. at
18,136-37. NHTSA began phasing in the standard as of
October 2005, and all cars manufactured after September 1,
2007 – subject to narrow exceptions – must comply with the
standard’s requirements. See Federal Motor Vehicle Safety
Standards, 70 Fed. Reg. 53,079, 53,097 (Sept. 7, 2005).
 7

The members of the Rubber Manufacturers Association
include the four individual tiremakers that are petitioners in
this case. During the rulemaking for Standard 138, that
Association filed a petition for rulemaking to amend a
separate standard, Standard 110. Standard 110 governs the
car manufacturer’s recommended tire pressure – the so-called
placard pressure. The Rubber Manufacturers Association
urged NHTSA to require automakers to set placard pressure
high enough so that even if tire pressure falls to 25 percent
below placard (triggering the monitor warning under Standard
138), the remaining pressure would be sufficient to support
the vehicle’s maximum load. This is known as a “tire
pressure reserve.” Under this approach, for example, if a
tire’s maximum-load-supporting pressure is 30 psi, the
placard pressure would be 40 psi, so that a decline of 25
percent (10 psi) would still leave enough pressure to carry
maximum load. Thus, any drop below the maximum-load-
supporting pressure would make a tire “significantly under
inflated” within the TREAD Act’s meaning, and require the
warning light to turn on. (The Tire Industry Association,
whose members include manufacturers and retailers of new
and replacement tires, essentially advanced the same
interpretation of significant under-inflation in comments on
Standard 138. See 70 Fed. Reg. at 18,161.)

NHTSA denied the rulemaking petition concerning
Standard 110. Federal Motor Vehicle Safety Standards, 70
Fed. Reg. 28,888, 28,888-89 (May 19, 2005). “Agency data,”
NHTSA explained, “suggest that the presence or absence of a
tire pressure reserve has little bearing on tire failures.” Id. at
28,889. NHTSA estimated the effects “if all new vehicles
were required to be fitted with tires that had, at a minimum, 8
psi of pressure reserve.” Id. at 28,895. It calculated an annual
benefit of about a two percent reduction in tire failures,
leading at most to annual “prevention of 731 crashes (with
 8

roughly $2 million in property damage and travel delay
savings), 4 fatalities, and 96 injuries in all cases involving
blowouts or flat tires.” Id.; see OFFICE OF REGULATORY
ANALYSIS & EVALUATION, U.S. DEP’T OF TRANSP., AN
ANALYSIS OF TIRE RESERVE LOAD FMVSS 110, at 4-5
(2005). But NHTSA recognized that even those figures
overstated the benefits by some unknown quantity – because
no tire pressure reserve could prevent all blowouts, such as
those caused by roadside nails, shattered glass, or other
debris. On the cost side of the ledger, NHTSA concluded that
the tire industry proposal would force automakers to select
larger tires, “thereby triggering production changes and
associated cost increases.” 70 Fed. Reg. at 28,895. NHTSA
stated that those costs would fall on “the automotive industry
and consumers,” and “could amount to approximately $132
million per year.” Id.

Public Citizen, the Tire Industry Association, and four
individual tiremakers (The Goodyear Tire & Rubber Co.,
Bridgestone/Firestone North American Tire, Cooper Tire &
Rubber Co., and Pirelli Tire, who are all also members of the
Rubber Manufacturers Association) filed petitions for review
of Standard 138 in this Court. They challenge: (i) the 25-
percent-below-placard-pressure standard for significant
under-inflation; (ii) the absence of a requirement that
monitors be capable of detecting significant under-inflation in
replacement tires; (iii) the 20-minute delay between
significant under-inflation and warning light activation; and
(iv) the way the agency required the monitors be tested before
use (which, petitioners contend, does not reflect real-world
driving hazards such as wet roads). The Tire Industry
Association and the tiremakers also filed a petition for review
of NHTSA’s denial of the rulemaking petition concerning
Standard 110. We consolidated all of the petitions.
 9

II

We first determine whether we have subject-matter
jurisdiction to directly review the tire industry petitioners’
challenge to NHTSA’s refusal to initiate a rulemaking to
amend Standard 110. As we have explained: “Because
district courts have general federal question jurisdiction under
28 U.S.C. § 1331, the normal default rule is that persons
seeking review of agency action go first to district court rather
than to a court of appeals. Initial review [of agency decisions]
occurs at the appellate level only when a direct-review statute
specifically gives the court of appeals subject-matter
jurisdiction to directly review agency action.” Watts v. SEC,
482 F.3d 501, 505 (D.C. Cir. 2007) (internal quotation marks
and citations omitted).

The tire industry petitioners point to 49 U.S.C.
§ 30161(a) as such a direct-review statute for NHTSA
decisions. The statute provides that a “person adversely
affected by an order prescribing a motor vehicle safety
standard” may seek direct review in the court of appeals “for
the circuit in which the person resides or has its principal
place of business.” 49 U.S.C. § 30161(a) (emphasis added).

Here, that statute would authorize direct review in this
Court only if NHTSA’s denial of a petition for rulemaking to
amend a safety standard were considered an order
“prescribing” such a safety standard. In ordinary English,
however, to “prescribe” is to order or adopt something as a
governing rule. See, e.g., 12 OXFORD ENGLISH DICTIONARY
390 (2d ed. 1989) (defining “prescribe” as “[t]o write or lay
down as a rule or direction to be followed” or “to dictate,
appoint, direct”). When NHTSA promulgates a safety
standard such as Standard 138, it obviously “prescribes” that
standard. But when NHTSA merely declines to amend an
 10

existing standard such as Standard 110, NHTSA does not
“prescribe” a standard. Moreover, as the Secretary points out,
the section of the statute providing for petitions to initiate
NHTSA rulemakings underscores the distinction between an
order prescribing a safety standard on the one hand and an
order denying a petition for rulemaking on the other. That
section provides: “Any interested person may file a petition
with the Secretary of Transportation requesting the Secretary
to begin a proceeding . . . to prescribe a motor vehicle safety
standard . . . .” 49 U.S.C. § 30162(a)(1). Denying a
“petition . . . requesting the Secretary to begin a proceeding”
under Section 30162 is not synonymous with prescribing a
safety standard under Section 30161(a). Therefore, the plain
terms of the statute dictate that judicial review of NHTSA’s
denial of a petition for rulemaking must begin in district
courts – not in courts of appeals. See, e.g., Lamie v. U.S. Tr.,
540 U.S. 526, 534 (2004).

The tire industry petitioners nevertheless advance three
arguments why we should disregard the usual meaning of
“prescribing” and adjudicate their petition. First, they
emphasize that ambiguities in statutes providing for direct
court of appeals review of agency action should not be
construed against such review. See Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 745 (1985). That argument fails
because the tire industry petitioners have not identified any
ambiguity in Section 30161(a). The jurisdictional statute is
“not ambiguous in any sense relevant here; and this court
simply is not at liberty to displace, or to improve upon, the
jurisdictional choices of Congress.” Five Flags Pipe Line Co.
v. Dep’t of Transp., 854 F.2d 1438, 1441 (D.C. Cir. 1988).
The absence of any relevant ambiguity likewise closes the
door on the tire industry petitioners’ subsidiary argument,
based on the wording of an earlier version of the statute and
on legislative history, that Congress intended direct court of
 11

appeals review in this kind of case. “The best evidence of
[the statutory] purpose is the statutory text adopted by both
Houses of Congress and submitted to the President,” which
means the legislative history and earlier statutory language
cannot trump the current statute’s plain import here. W. Va.
Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991).

Second, the tire industry petitioners urge us to take
jurisdiction under the All Writs Act. See 28 U.S.C. § 1651(a)
(“[A]ll courts established by Act of Congress may issue all
writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.”). The All Writs Act empowers this Court “to compel
agency action unreasonably withheld or delayed if the
putative agency action, once forthcoming, would be
reviewable in this Court.” Int’l Union, United Mine Workers
v. Dep’t of Labor, 358 F.3d 40, 42 (D.C. Cir. 2004); see
Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 75
(D.C. Cir. 1984) (“TRAC”). In the past, we have drawn on the
All Writs Act to protect our jurisdiction when agency conduct
could plausibly make later merits review impossible. We
have prevented an agency from interfering with appellate
jurisdiction by unreasonably delaying a final decision or
withdrawing a rule previously proposed. See Mine Workers,
358 F.3d at 43; TRAC, 750 F.2d at 76.

This case does not call on us to exercise that kind of
authority. It involves neither unreasonable delay in
responding to the rulemaking petition nor a withdrawn rule.
More to the point, in declining to initiate the rulemaking,
NHTSA in no way interfered with our jurisdiction. On the
contrary, when no direct-review statute applies, parties
aggrieved by Executive agency denials of petitions for
rulemaking have routinely gone first to district courts, and
then taken appeals from final district court judgments; that
 12

practice obviously does not thwart appellate jurisdiction. See,
e.g., Coll. Sports Council v. Dep’t of Educ., 465 F.3d 20, 22-
23 (D.C. Cir. 2006) (remanding for district court to consider
challenge to denial of rulemaking petition); Doris Day Animal
League v. Veneman, 315 F.3d 297, 297-98, 301 (D.C. Cir.
2003) (reversing district court’s judgment concerning
agency’s denial of rulemaking petition). Thus, exercising
jurisdiction under the All Writs Act is not appropriate in this
case.

Third, the tire industry petitioners contend that the
petition for rulemaking concerning Standard 110 raised issues
so closely related to the Standard 138 rulemaking that we
must resolve the former when resolving the latter. We have
discretion to exercise so-called pendent appellate jurisdiction
of this kind “sparingly” and “only when substantial
considerations of fairness or efficiency demand it.” Kilburn v.
Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123,
1133-34 (D.C. Cir. 2004) (internal quotation marks omitted).
Discretionary considerations of “fairness or efficiency” do not
authorize us, however, to disregard plain statutory terms
assigning a different court initial subject-matter jurisdiction
over a suit. Again, we are “not at liberty to displace, or to
improve upon, the jurisdictional choices of Congress.” Five
Flags, 854 F.2d at 1441.

For those reasons, we lack subject-matter jurisdiction
over the tire industry petitioners’ petition for review of
NHTSA’s refusal to initiate rulemaking concerning Standard
110.

III

The tire industry petitioners and Public Citizen have
petitioned for review of Standard 138. The essence of the
 13

challenge on the merits is that NHTSA’s new safety
regulation will improve tire safety, but not as much as the
TREAD Act requires. Claims that a safety regulation is good
– but not good enough – can pose difficult issues of standing.
This case is no exception.

A

The Constitution limits the federal courts to deciding
cases or controversies. See U.S. CONST. art. III, § 2, cl. 1;
DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1860-61
(2006). To present a justiciable case or controversy, litigants
must demonstrate standing, among other requirements. As
the Supreme Court has stated, “the law of Art[icle] III
standing is built on a single basic idea – the idea of separation
of powers.” Allen v. Wright, 468 U.S. 737, 752 (1984). The
standing doctrine helps ensure that the Judicial Branch does
not perform functions assigned to the Legislative or Executive
Branch and “that the judiciary is the proper branch of
government to hear the dispute.” Fla. Audubon Soc’y v.
Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc).

To demonstrate standing under Article III, a party must
show injury in fact that was caused by the conduct of the
defendants and that can be redressed by judicial relief. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
The “party invoking federal jurisdiction bears the burden of
establishing these elements.” Id. at 561. Under our
precedents, “a petitioner whose standing is not self-evident
should establish its standing by the submission of its
arguments and any affidavits or other evidence appurtenant
thereto at the first appropriate point in the review
proceeding.” Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.
Cir. 2002) (punctuation altered). In a direct-review agency
case in this Court, that “first appropriate point” is when the
 14

petitioner files its opening brief. Id. Because petitioners bear
the burden of proof on standing, they “must either
identify . . . record evidence sufficient to support [their]
standing to seek review or, if there is none because standing
was not an issue before the agency, submit additional
evidence to the court of appeals.” Id. at 899; see also D.C.
Cir. R. 28(a)(7) (citing id. at 900-01). When evaluating such
evidence concerning standing, we “assume that on the merits
the plaintiffs would be successful in their claims.” City of
Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003).

Some petitioners in this case are organizations. An
organization has standing to sue on behalf of its members
when, among other things, “its members would otherwise
have standing to sue in their own right.” Hunt v. Wash. State
Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
Accordingly, an organization must show, based on the
administrative record or other evidence (such as affidavits
filed in court), that at least one member has suffered injury in
fact. See, e.g., Sierra Club, 292 F.3d at 899-900, 902.

The Supreme Court has stated that standing is
“substantially more difficult to establish” where, as here, the
parties invoking federal jurisdiction are not “the object of the
government action or inaction” they challenge. Lujan, 504
U.S. at 562 (internal quotation marks omitted). In this case,
the automakers – not the tire industry petitioners or Public
Citizen – are the “object” of the regulation. The automakers
are not challenging the regulation, however.

Along with their opening brief, petitioners filed
numerous affidavits supporting standing. In its brief as
respondent, NHTSA did not contest standing – which
suggests that the agency believed standing was either self-
evident from the administrative record or established by the
 15

affidavits. But the intervenor automakers’ association
forcefully challenged petitioners’ standing, and in any event,
we have an independent constitutional obligation to consider
it. See DaimlerChrysler, 126 S. Ct. at 1860-61.

B

The tire industry petitioners (four individual tire
manufacturers and a trade association) offer affidavits
asserting that people involved in accidents attributable at least
in part to tire under-inflation invariably file products liability
suits against tire manufacturers, seek refunds under tire
warranties, or do both. Their theory can be boiled down to
this: NHTSA’s alleged under-regulation of the automakers
will lead to more accidents than otherwise would occur, and
the drivers and passengers injured in those accidents will
bring warranty claims and suits not just against the
automakers but also against the tire industry petitioners. This
theory of causation takes a novel and unusually speculative
view of the potential consequences that, for constitutional
standing purposes, could fairly be traced to NHTSA’s
issuance of Standard 138. Not surprisingly, the tire industry
petitioners have identified no case that has found standing
based on such an attenuated causation chain. And we reject
the tire industry petitioners’ standing argument for a
combination of three related reasons.

First, Standard 138 prescribes the conduct of
automakers, not tiremakers. Tire pressure monitors are
manufactured by automakers, not by tiremakers. The tire
industry petitioners are demanding more intensive NHTSA
regulation of the automakers to head off hypothetical
litigation and warranty disputes between the tire industry
petitioners and the car-riding public. There is an obvious
causal disconnect, however, between the regulation of
 16

automakers and private claims against tire industry
petitioners. The tire industry petitioners have cited to us no
precedents recognizing standing where, as here, the
manufacturers of one product argue that manufacturers of
another product should be more heavily regulated so as to
prevent claims against manufacturers of the first product.

Second, Standard 138 sets a minimum performance
standard for tire pressure monitors. The monitors will help
detect significantly under-inflated tires – but tire industry
petitioners can help prevent tires from becoming significantly
under-inflated in the first place by manufacturing and
marketing tires less prone to leaks or punctures, and by better
educating drivers about tire inflation. In setting a floor (not a
ceiling) for tire pressure monitors, NHTSA in no way
prevented the tire industry petitioners from more effectively
solving the tire under-inflation problem. Therefore, the tire
industry petitioners’ claim has at least some of the hallmarks
of a “self-inflicted” injury not caused by the agency action.
Cf. Nat’l Family Planning & Reprod. Health Ass’n v.
Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006) (noting that
self-inflicted harm cannot support standing either because
there is no injury in fact or because causation fails).

Third, no evidence supports the tire industry petitioners’
theory that drivers and passengers injured in inflation-related
accidents will bring successful warranty claims and products
liability suits against the tire industry petitioners. Of course,
the tumult over Firestone’s recall of tires for Ford sport utility
vehicles indicated that tire-related accidents and litigation
may sometimes go hand-in-hand. See, e.g., In re
Bridgestone/Firestone, Inc., 288 F.3d 1012, 1014 (7th Cir.
2002). But that litigation is not on point, because it involved
allegations that the tires themselves were defective. See, e.g.,
id. at 1016. The tire industry petitioners here have not
 17

explained how Standard 138 will lead drivers and passengers
to bring successful warranty claims and products liability suits
against them. Standard 138 does not seem to bear, moreover,
on any legal claim or defense that might be presented in those
hypothetical suits – unlike the situation in cases such as
International Fabricare Institute v. EPA, 972 F.2d 384, 387,
390 (D.C. Cir. 1992).

To reiterate, the tire industry petitioners have cited no
precedents supporting standing for this kind of claim. We
conclude that the tire industry petitioners lack standing
because the “links in the chain of causation between the
challenged Government conduct and the asserted injury are
far too weak.” Allen v. Wright, 468 U.S. 737, 759 (1984); see
also Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663, 666
(D.C. Cir. 1996) (en banc) (petitioners must demonstrate
“substantial probability” that agency action caused harm).

C

We next address Public Citizen’s standing. Public
Citizen submitted an affidavit from Joan Claybrook, the
organization’s president. She asserted that Standard 138 as
adopted would affect Public Citizen’s 130,000 members –
who drive or ride in cars – by creating “a higher risk of
injury” than if NHTSA adopted the alternative regulation that
Public Citizen advanced. See Claybrook Aff. ¶ 2. In other
words, because of NHTSA’s rule, some Public Citizen
members allegedly will suffer car accidents in the future that
otherwise would be prevented. Because Public Citizen’s
“asserted injury arises from the government’s allegedly
unlawful regulation (or lack of regulation) of someone else” –
namely of the automakers – Public Citizen’s standing in this
case is “not precluded” but is “substantially more difficult to
establish.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 562
 18

(1992) (internal quotation marks omitted).

Stated broadly, the issue posed by Public Citizen’s
submission is this: To reduce the risk of harm from using a
product, when do consumers have standing to sue an
executive agency to compel it to impose greater regulation on
the product’s manufacturers? Such a question raises delicate
separation of powers concerns, and requires that the Judiciary
ensure, in particular, that the plaintiff before the court has
suffered a genuine injury in fact. The Supreme Court has
cautioned that the federal courts “were simply not constituted
as ombudsmen of the general welfare,” Valley Forge
Christian Coll. v. Ams. United for Separation of Church &
State, Inc., 454 U.S. 464, 487 (1982), and are not “continuing
monitors of the wisdom and soundness of Executive action,”
Allen v. Wright, 468 U.S. 737, 760 (1984) (internal quotation
marks omitted). The Court therefore has insisted “upon
meaningful limitations on what constitutes injury for standing
purposes” because of “the key role that injury plays in
restricting the courts to their proper function in a limited and
separated government.” John G. Roberts, Jr., Article III
Limits on Statutory Standing, 42 DUKE L.J. 1219, 1224
(1993).

Injury in fact is the “invasion of a legally protected
interest which is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical.” Lujan, 504
U.S. at 560 (internal quotation marks, citations, and footnote
omitted). The Supreme Court has “emphasized repeatedly”
that the alleged injury “must be concrete in both a qualitative
and temporal sense. The complainant must allege an injury to
himself that is distinct and palpable, as opposed to merely
abstract, and the alleged harm must be actual or imminent, not
conjectural or hypothetical.” Whitmore v. Arkansas, 495 U.S.
149, 155 (1990) (internal quotation marks, citations and
 19

alteration omitted).

We evaluate Public Citizen’s claim under the three
requirements of injury-in-fact as the Court in Lujan
articulated them – namely, the requirements that the asserted
injury be (1) concrete, (2) particularized, and (3) actual or
imminent.

1. The Supreme Court has stated that the asserted injury
must be concrete – which the Court has also described as
direct, real, and palpable – not abstract. See, e.g., Lujan, 504
U.S. at 560 (“concrete”); Whitmore, 495 U.S. at 155
(“palpable, as opposed to merely abstract”); Allen, 468 U.S. at
751 (“palpable”); City of Los Angeles v. Lyons, 461 U.S. 95,
102 (1983) (“real”); Warth v. Seldin, 422 U.S. 490, 501
(1975) (“palpable”); United States v. Richardson, 418 U.S.
166, 180 (1974) (“a direct injury”); (internal quotation marks,
citations, and alterations omitted in above quotations). In this
case, the concreteness of the asserted injury is evident:
Injuries from car accidents – including death, physical
injuries, and property damage – are plainly concrete harms
under the Supreme Court’s precedents.

2. The Supreme Court also has stated that the asserted
injury must be particularized – which the Court has also
described as personal, individual, distinct, and differentiated –
not generalized or undifferentiated. See, e.g., Lujan, 504 U.S.
at 560 n.1 (“By particularized, we mean that the injury must
affect the plaintiff in a personal and individual way.”);
DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1861 (2006)
(“personal”); Whitmore, 495 U.S. at 155 (“distinct”); Allen,
468 U.S. at 751 (“personal”); Valley Forge, 454 U.S. at 472
(litigant must show “he personally has suffered some actual or
threatened injury”); Richardson, 418 U.S. at 177 (not
“undifferentiated”); (internal quotation marks, citations, and
 20

alterations omitted in above quotations).

Injuries from car accidents are particularized – each
person who is in an accident is harmed personally and
distinctly. The Supreme Court has made clear, moreover, that
the fact that a number of people could be similarly injured
does not render the claim an impermissible generalized
grievance: “where a harm is concrete, though widely shared,
the Court has found injury in fact.” FEC v. Akins, 524 U.S.
11, 24 (1998) (internal quotation marks omitted); see Lujan,
504 U.S. at 581 (Kennedy, J., concurring in part and
concurring in judgment) (“While it does not matter how many
persons have been injured by the challenged action, the party
bringing suit must show that the action injures him in a
concrete and personal way.”); see also Massachusetts v. EPA,
127 S. Ct. 1438, 1459 n.24 (2007) (“[S]tanding is not to be
denied simply because many people suffer the same injury.”)
(internal quotation marks omitted).

Even those Justices who have embraced a more robust
view of constitutional standing requirements have not equated
an injury suffered by a number of people to an impermissible
generalized grievance. For example, a mass tort inflicts
“widely shared” injury, and each victim “suffers a
particularized and differentiated harm. One tort victim suffers
a burnt leg, another a burnt arm – or even if both suffer burnt
arms they are different arms. . . . With the generalized
grievance, on the other hand, the injury or deprivation is not
only widely shared but it is undifferentiated.” Akins, 524 U.S.
at 35 (Scalia, J., dissenting); see also Lujan, 504 U.S. at 572
(Scalia, J., opinion for the Court) (no generalized grievance
when “concrete injury has been suffered by many persons, as
in mass fraud or mass tort situations”).

Under the view of generalized grievances articulated in
 21

Akins, and even under the position advanced in the Akins
dissent, injuries from car accidents are particularized and
differentiated; they are not impermissible generalized
grievances.1

3. The Supreme Court has further stated that the asserted
injury must be actual or imminent – which the Court has also
described as certainly impending and immediate – not remote,
speculative, conjectural, or hypothetical. See Lujan, 504 U.S.
at 560 (“actual or imminent”); DaimlerChrysler, 126 S. Ct. at
1863 (“certainly impending”); Whitmore, 495 U.S. at 155
(“not conjectural or hypothetical”); ASARCO Inc. v. Kadish,
490 U.S. 605, 615 (1989) (opinion of Kennedy, J., joined by
Rehnquist, C.J., and Stevens and Scalia, JJ.) (not “remote or
speculative”); Lyons, 461 U.S. at 102 (“immediate”); (internal
quotation marks, citations, and alterations omitted in above
quotations).

In this case, Public Citizen is not claiming that any of its
members has actually been in a car accident that NHTSA’s
rule allegedly failed to prevent. Rather, Public Citizen has
alleged an increased risk of death, physical injury, or property
damage from future car accidents that it says NHTSA’s rule

1
The rule against generalized grievances comes into play, the
Supreme Court has stated, “where the harm at issue is not only
widely shared, but is also of an abstract and indefinite nature – for
example, harm to the common concern for obedience to law.” Akins,
524 U.S. at 23 (internal quotation marks omitted); see also Allen, 468
U.S. at 754 (“asserted right to have the Government act in accordance
with law is not sufficient, standing alone, to confer jurisdiction”). In
that kind of case, “[t]he abstract nature of the harm – for example,
injury to the interest in seeing that the law is obeyed – deprives the
case of the concrete specificity” necessary for justiciability. Akins,
524 U.S. at 24.
 22

will fail to prevent. In particular, Public Citizen claims that
several hundred Americans, including some Public Citizen
members, will annually be injured in car crashes who would
not be injured if NHTSA complied with the TREAD Act. The
“imminence” problem arises because no one can say who
those several hundred individuals are out of the 300 million
people in the United States, nor can anyone say when such
accidents might occur. For any particular individual, the odds
of such an accident occurring are extremely remote and
speculative, and the time (if ever) when any such accident
would occur is entirely uncertain.

As a result, there is a powerful argument that “increased-
risk-of-harm” claims – such as Public Citizen’s claim here –
fail to meet the constitutional requirement that a plaintiff
demonstrate harm that is “actual or imminent, not conjectural
or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation
marks omitted). “Although imminence is concededly a
somewhat elastic concept, it cannot be stretched beyond its
purpose, which is to ensure that the alleged injury is not too
speculative for Article III purposes – that the injury is
certainly impending.” Id. at 565 n.2 (internal quotation marks
omitted). In Whitmore, the Supreme Court summarized its
case law and flatly stated: “[W]e have said many times before
and reiterate today: Allegations of possible future injury do
not satisfy the requirements of Art[icle] III. A threatened
injury must be certainly impending to constitute injury in
fact.” 495 U.S. at 158 (internal quotation marks omitted;
emphasis added).2

2
In Massachusetts v. EPA, the Supreme Court held that states
receive “special solicitude” in standing analysis, including analysis
of imminence. See 127 S. Ct. at 1454-55. No state is involved in this
case, however.
 23

Public Citizen’s injury-in-fact theory flouts these settled
principles. Public Citizen is attempting to assert remote and
speculative claims of possible future harm to its members.
Allowing a party to assert such remote and speculative claims
to obtain federal court jurisdiction threatens, however, to
eviscerate the Supreme Court’s standing doctrine. As we
have previously stated: “Were all purely speculative
increased risks deemed injurious, the entire requirement of
actual or imminent injury would be rendered moot, because
all hypothesized, nonimminent injuries could be dressed up as
increased risk of future injury.” NRDC v. EPA, 464 F.3d 1, 6
(D.C. Cir. 2006) (quoting Ctr. for Law & Educ. v. Dep’t of
Educ., 396 F.3d 1152, 1161 (D.C. Cir. 2005)) (internal
quotation marks and alteration omitted). We therefore have
“cautioned that this category of injury may be too expansive.”
Id; cf. Cass R. Sunstein, What’s Standing After Lujan? Of
Citizen Suits, “Injuries,” and Article III, 91 MICH. L. REV.
163, 228 (1992) (under Supreme Court’s precedents, there
“may be serious standing problems” in cases involving
consumer safety challenges based on increased risk).

Nor does it help Public Citizen to aggregate a series of
remote and speculative claims. As Justice Kennedy has
explained, in terms critically important to increased-risk cases
brought by organizations, “the doctrine of standing to sue is
not a kind of gaming device that can be surmounted merely by
aggregating the allegations of different kinds of plaintiffs,
each of whom may have claims that are remote or speculative
taken by themselves.” ASARCO, 490 U.S. at 615 (opinion of
Kennedy, J., joined by Rehnquist, C.J., and Stevens and
Scalia, JJ.). Along the same lines, the Supreme Court has
stated that the “law of averages is not a substitute for
standing.” Valley Forge, 454 U.S. at 489. Under the
Supreme Court’s precedents, it therefore does Public Citizen
no good to string together 130,000 remote and speculative
 24

claims rather than one remote and speculative claim. Each
claim is still remote and speculative, which under the
Supreme Court’s precedents is an impermissible basis for our
exercising the judicial power.

The consequences of allowing standing in these kinds of
increased-risk cases are perhaps obvious, but worth
explicating. Much government regulation slightly increases a
citizen’s risk of injury – or insufficiently decreases the risk
compared to what some citizens might prefer. Under Public
Citizen’s theory of probabilistic injury, after an agency takes
virtually any action, virtually any citizen – because of a
fractional chance of benefit from alternative action – would
have standing to obtain judicial review of the agency’s choice.
Opening the courthouse to these kinds of increased-risk
claims would drain the “actual or imminent” requirement of
meaning in cases involving consumer challenges to an
agency’s regulation (or lack of regulation); would expand the
“proper – and properly limited” – constitutional role of the
Judicial Branch beyond deciding actual cases or
controversies; and would entail the Judiciary exercising some
part of the Executive’s responsibility to take care that the law
be faithfully executed. DaimlerChrysler, 126 S. Ct. at 1860
(internal quotation marks omitted); see Lujan, 504 U.S. at
577; Allen, 468 U.S. at 761.

Contrary to Public Citizen’s far-reaching theory, the
Supreme Court’s precedents establish that injuries from a car
accident become actual or imminent only when the accident
has occurred or is “certainly impending” and “immediate.”
When harm actually happens, state tort law may provide an
avenue to recover damages from a party unreasonably causing
the harm (for example, from the automaker). To avoid the
standing problem of increased-risk cases, moreover, Congress
also can presumably create a private cause of action enabling
 25

consumers to sue private defendants such as automakers, for
example, and obtain recovery for injuries actually suffered in
car accidents as a result of federal statutory or regulatory
violations by the automakers. Cf. Lujan, 504 U.S. at 578; id.
at 580 (Kennedy, J., concurring in part and concurring in
judgment). To the extent Congress is concerned about
Executive under-regulation or under-enforcement of statutes,
it also may exercise its oversight role and power of the purse.
See Laird v. Tatum, 408 U.S. 1, 15 (1972). But all of that is
far afield from allowing a consumer to sue an agency based
solely on an event that, for any given individual, is extremely
unlikely to occur and is not “imminent,” “certainly
impending,” and “immediate.” The Supreme Court has
repeatedly held that disputes about future events where the
possibility of harm to any given individual is remote and
speculative are properly left to the policymaking Branches,
not the Article III courts.

4. To be sure, this Court has not closed the door to all
increased-risk-of-harm cases. We have allowed standing
when there was at least both (i) a substantially increased risk
of harm and (ii) a substantial probability of harm with that
increase taken into account. See Mountain States Legal
Found. v. Glickman, 92 F.3d 1228, 1234-35 (D.C. Cir. 1996);
see also NRDC, 464 F.3d at 6-7.

Mountain States arose in the context of environmental
harm to individuals in a specific geographic area. See Ctr. for
Law & Educ., 396 F.3d at 1161 (“Outside of increased
exposure to environmental harms, hypothesized ‘increased
risk’ has never been deemed sufficient ‘injury.’”). As we read
Mountain States and as we analyzed it in NRDC, however, the
Mountain States case applies here.

What increase in the risk of harm and what level of
 26

ultimate risk are high enough to be “substantial” – and thus to
render the harm sufficiently “imminent”? Mountain States
did not specify any hard-and-fast numerical rules; we have
simply set forth a general principle: If the agency action
causes an individual or individual members of an organization
to face an increase in the risk of harm that is “substantial,”
and the ultimate risk of harm also is “substantial,” then the
individual or organization has demonstrated an injury in fact.
See Mountain States, 92 F.3d at 1235; see also NRDC, 464
F.3d at 6-7.

In applying the “substantial” standard, we are mindful, of
course, that the constitutional requirement of imminence as
articulated by the Supreme Court – even if this Court has said
it does not completely bar increased-risk-of-harm claims –
necessarily compels a very strict understanding of what
increases in risk and overall risk levels can count as
“substantial.”

We turn to the record before us. Although Standard 138
furnishes drivers with a tire pressure monitor that is designed
to reduce the risk of accidents from the status quo, Public
Citizen contends that the TREAD Act required NHTSA to
reduce the risk even further. Petitioners challenge Standard
138’s: (i) definition of significant under-inflation and the
failure to require a tire pressure reserve; (ii) failure to require
monitors compatible with all replacement tires; (iii) 20-
minute lapse before the warning light turns on; and (iv)
testing methods. For purposes of standing, we must assume
Public Citizen is correct when it alleges that the TREAD Act
required the agency to go further with respect to those aspects
of Standard 138. See City of Waukesha v. EPA, 320 F.3d 228,
235 (D.C. Cir. 2003).

In its briefs, Public Citizen set forth an estimate of the
 27

number of injuries that its interpretation of the statutory term
“significantly under inflated” would allegedly prevent, as
compared to NHTSA’s rule. But those figures are neither
contained in the administrative record nor explained in an
expert affidavit accompanying the opening brief. Cf.
Mountain States, 92 F.3d at 1234-35 (administrative record);
NRDC, 464 F.3d at 6-7 (expert affidavit). Moreover, the
record does not contain any estimates of how many accidents
would be avoided by adopting petitioners’ interpretation of
the TREAD Act with respect to any of the other challenged
aspects of Standard 138, such as with respect to replacement
tires and the 20-minute delay. In short, the record is
incomplete.

This Court “retains the discretion to seek supplemental
submissions from the parties if it decides that more
information is necessary to determine whether petitioners, in
fact, have standing.” Am. Library Ass’n v. FCC, 401 F.3d
489, 494 (D.C. Cir. 2005); see, e.g., Am. Chemistry Council v.
Dep’t of Transp., 468 F.3d 810, 815 (D.C. Cir. 2006) (“[W]e
raised the issue of standing at oral argument and requested
supplemental briefing.”); Action on Smoking & Health v.
Dep’t of Labor, 100 F.3d 991, 992 (D.C. Cir. 1996) (petitioner
“furnished post-argument affidavits at our request”); see also
Abigail Alliance for Better Access to Developmental Drugs v.
Von Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006)
(supplemental briefing sought where agency first challenged
standing after panel opinion issued).

Were we deciding this case based solely on the Supreme
Court’s precedents, we would agree with the separate
opinion’s conclusion that Public Citizen has not demonstrated
standing and that supplemental briefing therefore is not
needed. In light of Mountain States and NRDC, however, we
think it prudent here to first obtain further submissions
 28

concerning Public Citizen’s standing. Cf. Am. Library Ass’n,
401 F.3d at 496. Within two weeks of the issuance of this
opinion, Public Citizen should file affidavits (and an
accompanying brief not exceeding 6,000 words) addressing
(i) whether Standard 138 as adopted creates a substantial
increase in the risk of death, physical injury, or property loss
over the interpretation of the TREAD Act that Public Citizen
has advanced, and (ii) whether the ultimate risk of harm to
which Public Citizen’s members are exposed, including the
increase allegedly due to NHTSA’s action, is “substantial”
and sufficient “to take a suit out of the category of the
hypothetical.” NRDC, 464 F.3d at 6 (internal quotation marks
omitted); Mountain States, 92 F.3d at 1235 (internal quotation
marks omitted). NHTSA and the automakers’ association as
intervenor should file any affidavits (and briefs not exceeding
6,000 words each) addressing Public Citizen’s Article III
standing within two weeks after Public Citizen’s filing.3

3
In their submissions, the parties should also address the
causation requirement. To begin with, we reject the automakers’
contention that drivers can avoid the risk of accidents by checking
tire pressure themselves, making Public Citizen’s asserted claim a so-
called “self-inflicted” harm that is not caused by the challenged
government regulation. See Nat’l Family Planning & Reprod. Health
Ass’n v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006). We
recognize that drivers who follow the owner’s manual instructions
and check their tire pressure every month may be able to prevent
some tire pressure accidents that otherwise would occur. But even if
diligent drivers ensure correct tire pressure for their own cars, they
cannot guarantee that other drivers will be so careful. The injury
alleged by Public Citizen is therefore not self-inflicted under our
precedents. See id.

That said, because Public Citizen’s “asserted injury arises from
the government’s allegedly unlawful regulation (or lack of
regulation) of someone else,” Public Citizen must “adduce facts
 29

5. In addressing the question whether the asserted
increased-risk-of-harm qualifies as an injury in fact, we have
properly considered Public Citizen’s asserted injury to be the
injuries from car accidents – death, physical injury, and
property damage. Those are concrete and particularized
injuries, and therefore the primary question for injury-in-fact
purposes is whether such injuries are imminent for a Public
Citizen member.

It has been suggested, however, that another way to
consider this issue is to say the “increased risk” is itself
concrete, particularized, and actual injury for standing
purposes. Cf. Sunstein, What’s Standing After Lujan?, 91
MICH. L. REV. at 228 (discussing possibility of characterizing
injury as “a greater risk” rather than “an actual incidence” of
harm). But we reject that conception of the injury in fact for
multiple reasons. First, the mere increased risk of some event
occurring is utterly abstract – not concrete, direct, real, and

showing that those choices have been or will be made in such manner
as to produce causation and permit redressability of injury.” Lujan,
504 U.S. at 562. In this case, petitioners must show that causation
does not “‘depend[] on the unfettered choices made by independent
actors not before the courts and whose exercise of broad and
legitimate discretion the courts cannot presume either to control or to
predict.’” Id. (quoting ASARCO, 490 U.S. at 615 (opinion of
Kennedy, J.)) (emphasis added). Petitioners thus must demonstrate
a “substantial probability,” Fla. Audubon Soc’y v. Bentsen, 94 F.3d
658, 663, 666 (D.C. Cir. 1996) (en banc) (internal quotation marks
omitted), that (i) automakers would not adopt safety standards more
stringent than the minimum specified in the NHTSA regulation, (ii)
consumers on their own would not check their tires so as to prevent
injuries to others, and (iii) consumers would pay attention to the
warning lights. Cf. Bennett v. Spear, 520 U.S. 154, 168-69 (1997);
NRDC, 464 F.3d at 7; Tozzi v. Dep’t of Health & Human Servs., 271
F.3d 301, 308 (D.C. Cir. 2001).
 30

palpable. Cf. Lance v. Coffman, 127 S. Ct. 1194, 1197-98
(2007) (quoting Schlesinger v. Reservists Comm. to Stop the
War, 418 U.S. 208, 220 (1974)). Second, increased risk falls
on a population in an undifferentiated and generalized
manner; everyone in the relevant population is hit with the
same dose of risk, so there is no particularization. By
contrast, the ultimate injuries themselves (such as the injuries
sustained in car accidents) are particularized and
differentiated. Cf. Richardson, 418 U.S. at 177 (rejecting
asserted injury “plainly undifferentiated and common to all
members of the public”) (internal quotation marks omitted);
Cass R. Sunstein, Standing and the Privatization of Public
Law, 88 COLUM. L. REV. 1432, 1467-68 (1988) (standing
based on increased risk of harm should be denied when injury
asserted is “so generalized or diffuse that all or almost all
citizens are affected in the same way”). Third, the Supreme
Court has said that, in temporal terms, there are three kinds of
harm – actual harms, imminent harms, and potential future
harms that are not imminent. See Whitmore, 495 U.S. at 155.
Treating the increased risk of future harm as an actual harm,
however, would eliminate these categories. Under this
approach, possible future injuries, whether or not they are
imminent, would magically become concrete, particularized,
and actual injuries merely because they could occur. That
makes no sense, except as a creative way to end-run the
Supreme Court’s standing precedents. We decline to
circumvent well-established standing law in this fashion. As
we have said before, were “all purely speculative increased
risks deemed injurious, the entire requirement of actual or
imminent injury would be rendered moot, because all
hypothesized, nonimminent injuries could be dressed up as
increased risk of future injury.” NRDC, 464 F.3d at 6
(quoting Ctr. for Law & Educ., 396 F.3d at 1161) (internal
quotation marks and punctuation omitted).
 31

In sum, the proper way to analyze an increased-risk-of-
harm claim is to consider the ultimate alleged harm – such as
death, physical injury, or property damage from car accidents
– as the concrete and particularized injury and then to
determine whether the increased risk of such harm makes
injury to an individual citizen sufficiently “imminent” for
standing purposes.

IV

NHTSA’s refusal to initiate a rulemaking regarding
Standard 110 is not an order directly reviewable in this Court
under 49 U.S.C. § 30161(a), so we dismiss the petition
concerning Standard 110 for lack of subject-matter
jurisdiction. As for Standard 138: The tire industry
petitioners have failed to demonstrate a causal connection
between their alleged injury and the adoption of Standard 138,
so they lack standing, and we dismiss their petitions.
Additional information is necessary to decide whether Public
Citizen has standing. We postpone a decision on its petition
pending the filing of supplemental submissions as outlined in
this opinion.

So ordered.
 SENTELLE, Circuit Judge, concurring in part and dissenting
in part: I fully agree with most of the court’s opinion. As the
majority’s cogent analysis demonstrates, “we lack subject-
matter jurisdiction over the tire industry petitioners’ petition for
review of the NHTSA’s refusal to initiate rulemaking
concerning Standard 110.” Further, the analysis set forth in Part
IIIB of the majority’s opinion correctly demonstrates that the
tire industry petitioners lack standing to bring this petition for
review of standard 138. Also, I am in general agreement with
the majority’s thorough analysis of the standing of Public
Citizen. I retain misgivings as to whether an organizational
plaintiff can establish probabilistic standing based on increased
risk where the increase in risk is no different from the increase
suffered by the public at large. In my view, such an increased
risk falls within the category of oversight reserved for the
legislative branch described by the majority in its discussion of
Laird v. Tatum, 408 U.S. 1, 15 (1972) (Maj. Op. at 25.).
Perhaps in part because I retain this misgiving, I do not join the
majority’s decision to allow Public Citizen a further attempt to
establish standing.

It is true that in American Library Association v. FCC, 401
F.3d 489 (D.C. Cir. 2005), we allowed such a second bite at the
standing apple. While that case establishes circuit law for the
authority of the court to allow such an attempt, it certainly does
not mandate that we do so. As I did in that case:

I therefore would find the governing precedent . . . in such
cases as America West Airlines, Inc. v. Burnley, 838 F.2d
1343 (D.C. Cir. 1988), in which we have dismissed
petitions of litigants who, after ample opportunity on the
record before us, have not demonstrated standing.

Id. at 497 (Sentelle, J., dissenting).
 2

Because Public Citizen has not demonstrated standing, we
have no jurisdiction. I would dismiss their claim, along with
that of the tire manufacturers. I therefore respectfully dissent
from that portion of the majority’s disposition.