United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2007 Decided January 22, 2008
No. 05-1188
PUBLIC CITIZEN, INC.,
PETITIONER
v.
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION,
ET AL.,
RESPONDENTS
ALLIANCE OF AUTOMOBILE MANUFACTURERS,
INTERVENOR
Consolidated with
05-1294, 05-1391
On Petitions for Review of an Order of the
United States Department of Transportation
Scott L. Nelson argued the cause for petitioner. With him
on the briefs were Allison M. Zieve and Brian Wolfman.
H. Thomas Byron, III, Attorney, U.S. Department of
Justice, argued the cause for respondents. With him on the
brief were Peter D. Keisler, Assistant Attorney General,
2
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, Kenneth N.
Weinstein, Brad P. Rosenberg, John T. Whatley, and Nancy E.
Bell.
Before: SENTELLE, RANDOLPH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
Opinion concurring in the judgment filed by Circuit
Judge SENTELLE.
PER CURIAM: In this case, several tire manufacturers, a
tire industry trade association, and Public Citizen, Inc.,
petitioned for review of Safety Standard 138 adopted by the
National Highway Traffic Safety Administration. Standard
138 requires new cars to have warning systems for tire under-
inflation.
In our initial opinion, we held that the tire manufacturers
and the trade association lacked standing to challenge the
safety standard. Public Citizen, Inc. v. NHTSA, 489 F.3d
1279, 1290-91 (D.C. Cir. 2007). We ordered supplemental
submissions from Public Citizen to determine whether it
satisfied the requirements for standing under Article III of the
Constitution. See id. at 1296-97. Based on the supplemental
filings and additional oral argument, we conclude that Public
Citizen lacks standing to challenge the safety standard, and
we dismiss its petition.
3
I
We discussed the relevant facts and background in our
original opinion in this case. See Public Citizen, Inc. v.
NHTSA, 489 F.3d 1279, 1283-87 (D.C. Cir. 2007). We recite
only a brief summary here.
In the wake of accidents and deaths caused by vehicle tire
blowouts, Congress in 2000 passed the Transportation Recall
Enhancement, Accountability, and Documentation Act
(TREAD Act) to impose new tire-safety requirements. See
Pub. L. No. 106-414, 114 Stat. 1800 (2000). Among other
things, the TREAD Act required the Secretary of
Transportation to promulgate a regulation requiring new
vehicles to feature a warning system “to indicate to the
operator when a tire is significantly under inflated.” Id. § 13,
114 Stat. at 1806 (codified at 49 U.S.C. § 30123 note).
Acting through the National Highway Traffic Safety
Administration and pursuant to the TREAD Act, the Secretary
in 2005 published the final version of Federal Motor Vehicle
Safety Standard 138. See Tire Pressure Monitoring Systems,
70 Fed. Reg. 18,136 (Apr. 8, 2005), recon. granted in part, 70
Fed. Reg. 53,079 (Sept. 7, 2005). Standard 138 requires
automakers to install tire pressure monitoring systems to warn
drivers “when the pressure in the vehicle’s tires is
approaching a level at which permanent tire damage could be
sustained as a result of heat buildup and tire failure is
possible.” 70 Fed. Reg. at 18,148. The monitoring system
must detect when one or more of a car’s tires is “significantly
under-inflated” – that is, when a tire (i) is at or below 20 psi,
for most cars, or (ii) is 25 percent or more below “placard
pressure.” Id. at 18,143, 18,189 Table 1. “Placard pressure”
is the recommended tire inflation pressure that automakers
4
must print on a placard often found on the driver’s-side door
jamb. 49 C.F.R. § 571.110, S4.3.
Under Standard 138, the monitoring system must cause a
dashboard warning light to illuminate within 20 minutes after
a tire falls below either of the two warning thresholds. 70
Fed. Reg. at 18,147-48.
Automakers must certify that the pressure monitor is
compatible with the car’s original set of tires but need not
certify that the monitor is compatible with replacement tires.
Id. at 18,143-44. If a driver installs replacement tires that are
not compatible with the pressure monitor, the monitoring
system must activate a dashboard malfunction light to warn
the driver that the pressure monitor is no longer functioning;
that light must not switch off unless the driver installs
compatible tires. Id. at 18,143, 18,151. NHTSA estimated
that monitoring systems will fail about one percent of the
time, in part because of incompatible replacement tires.
OFFICE OF REGULATORY ANALYSIS & EVALUATION, U.S.
DEP’T OF TRANSP., FINAL REGULATORY IMPACT ANALYSIS:
TIRE PRESSURE MONITORING SYS. FMVSS No. 138, at II-10
(2005). At “the high end,” it estimated that “less than 10
percent of [replacement] tire designs would not work” with
the monitoring systems “or will have other malfunction
problems.” Id. at II-10 to -11.
Public Citizen, four individual tire manufacturers, and the
Tire Industry Association filed petitions for review of
Standard 138 in this Court. They challenged: (i) the absence
of a requirement that pressure monitors be compatible with all
replacement tires; (ii) the up-to-20-minute delay between
significant under-inflation and the illumination of the
dashboard warning light; (iii) the use of the 25-percent-below-
placard-pressure standard for under-inflation; and (iv) the
5
testing that NHTSA required for pressure monitors. See
Public Citizen, 489 F.3d at 1286. In our initial opinion, we
held that the tire manufacturers and the Tire Industry
Association lacked standing because they had “failed to
demonstrate a causal connection between their alleged injury
and the adoption of Standard 138.” Id. at 1298. We therefore
dismissed their petitions. Id.
We also considered whether Public Citizen had standing
to challenge Standard 138. Id. at 1291-98. Under Article III
of the Constitution, standing to sue requires “injury in fact
that was caused by the conduct of the defendants and that can
be redressed by judicial relief.” Id. at 1289 (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). To
show injury in fact, a litigant must establish “‘invasion of a
legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical.’” Id. at 1292 (quoting Lujan, 504 U.S. at 560).
Public Citizen alleged as its injury in fact an increased risk of
harm to its members: Under Standard 138, some of Public
Citizen’s “members allegedly will suffer car accidents in the
future that otherwise would be prevented” if NHTSA were to
adopt Public Citizen’s proposals. Id. at 1291.
In the original panel opinion, we explained that, under
Supreme Court precedent, “Public Citizen’s standing in this
case is ‘not precluded’ but is ‘substantially more difficult to
establish’” because its “‘asserted injury arises from the
government’s allegedly unlawful regulation (or lack of
regulation) of someone else.’” Id. (quoting Lujan, 504 U.S. at
562). We concluded that Public Citizen had demonstrated a
“concrete” and “particularized” injury – two of the three
requirements for injury in fact. 489 F.3d at 1292-93; see also
Lujan, 504 U.S. at 560. But we questioned whether Public
Citizen met the third requirement – that its asserted injury be
6
“actual or imminent.” 489 F.3d at 1293-95. In particular, we
noted that Public Citizen raised only “remote and speculative
claims of possible future harm to its members.” Id. at 1294.
Such claims ordinarily “are properly left to the policymaking
Branches, not the Article III courts”; allowing a party to assert
such claims to obtain federal court jurisdiction threatens “to
eviscerate the Supreme Court’s standing doctrine.” Id. at
1295, 1294. That is because, in these kinds of increased-risk
claims, “virtually any citizen” can claim injury “because of a
fractional chance of benefit from alternative action.” Id. at
1295. Allowing such 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.” Id. at 1295 (internal
quotation marks omitted).
As we noted in the original panel opinion, however, “this
Court has not closed the door to all increased-risk-of-harm
cases.” Id. at 1295. Instead, this Court has “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.” Id. (citing NRDC v. EPA, 464
F.3d 1, 6-7 (D.C. Cir. 2006) and Mountain States Legal
Found. v. Glickman, 92 F.3d 1228, 1234-35 (D.C. Cir. 1996)).
In applying this standard, “we are mindful, of course, that the
constitutional requirement of imminence as articulated by the
Supreme Court . . . necessarily compels a very strict
understanding of what increases in risk and overall risk levels
can count as ‘substantial.’” Id. at 1296.
7
We concluded that the record was not sufficiently
complete to determine whether Public Citizen met the
Mountain States and NRDC requirements, and we ordered
supplemental briefing from the parties to address:
(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.”
Id. at 1297 (quoting NRDC, 464 F.3d at 6).
II
Public Citizen challenges three aspects of Standard 138:
(i) how the warning system works for replacement tires;
(ii) the up-to-20-minute lag time between significant under-
inflation and warning light activation; and (iii) the 25-percent-
below-placard-pressure standard for significant under-
inflation.1
Public Citizen’s standing argument relies principally on
the declaration of a statistician who purported to analyze the
increase in death, injury, and property damage to Public
Citizen’s members as a result of NHTSA’s decision not to
adopt Public Citizen’s proposed version of Standard 138.
NHTSA and the intervenor auto manufacturers have filed
1
Public Citizen did not submit materials to establish standing
on its fourth claim (challenging Standard 138’s testing
requirements). We therefore dismiss that claim for lack of
standing.
8
their own statistical analyses criticizing Public Citizen’s data.
The auto manufacturers’ statistician argues that Public
Citizen’s analysis is “riddled with errors and misstatements.”
Decl. of Intervenor’s Consultant M. Laurentius Marais ¶ 6.
NHTSA’s Division Chief, who has been developing tire-
related safety standards at the agency for 21 years, submitted
a lengthy criticism of Public Citizen’s analyses as “invalid,”
“unsupported,” “incorrect,” and containing “unjustified
assumptions.” Decl. of NHTSA Division Chief George
Soodoo ¶¶ 23, 39, 45.
A
Standard 138 does not require that the warning system’s
pressure monitor work for replacement tires. Public Citizen
argues that Standard 138 is therefore inconsistent with the
TREAD Act. To establish its injury in fact to bring this claim
– namely, to show a substantially increased risk of harm and a
substantial probability of harm with that increase taken into
account – Public Citizen points to its statistician’s estimate of
the difference in risk of injury between (i) a standard
requiring that pressure monitors be compatible with all
replacement tires and (ii) Standard 138, which NHTSA
estimates will be incompatible with between 1 and 10 percent
of replacement tires.
Public Citizen’s submissions ignore, however, that it
actually proposed that NHTSA adopt either of two acceptable
alternatives on the replacement tire issue. Throughout the
proceedings before NHTSA and this Court, Public Citizen has
argued that Standard 138 should either require that pressure
monitors be compatible with all replacement tires or require
that automakers publish a list of compatible tires in a car’s
owner’s manual. See Public Citizen Petition for
Reconsideration of Std. 138, at 5 (May 23, 2005), Joint
9
Appendix (“J.A.”) 1530 (“We therefore petition the agency
for . . . , at a minimum, . . . a requirement that the
[monitoring] system fully function with a set of identified and
published manufacturer-recommended replacement tires.”);
Petitioners’ Br. at 79 n.71 (“Public Citizen urged the agency
either to (1) require that all tires be” compatible with the
monitoring system “or (2) require that the [monitoring]
system function fully with a set of identified and published
manufacturer recommended tires.”); Oct. 11, 2007 Oral Arg.
Tr. at 26 (“[T]he rule that we propose is either that the
systems work with all replacement tires or that there be a
list.”) (emphasis added).
Public Citizen obviously is not injured for purposes of
standing if Standard 138 poses no greater risk of injury than
one of Public Citizen’s proposed alternatives. Public Citizen
has the burden to demonstrate its injury. But as the intervenor
auto manufacturers correctly point out, Public Citizen has not
made any attempt to demonstrate the difference in risk
between (i) Standard 138 and (ii) Public Citizen’s proposal
that automakers publish a list of compatible tires. See
Intervenor’s Supp. Br. at 19 (Public Citizen “has not
established the incremental risk” to its members “posed by
NHTSA’s rule, as compared” to Public Citizen’s “desired
alternative.”). Public Citizen has not submitted any expert or
other analysis demonstrating that a list of compatible tires in
the owner’s manual would substantially reduce the risk of
death, injury, or economic loss to its members, as compared
to Standard 138. For that reason, we agree with the
intervenor auto manufacturers that Public Citizen has not met
its burden to establish standing with respect to the
replacement tire issue.
10
B
Standard 138 allows up to 20 minutes’ lag time between
under-inflation and the activation of a dashboard warning
light. NHTSA explained that the monitoring system was “not
developed to warn the driver of extremely rapid pressure
losses”; instead, it is intended to detect “more measured
pressure loss (produced over weeks or months) caused by a
slow leak,” and therefore “a detection time of 20 minutes is
not likely to pose a safety risk to the driving public.” Tire
Pressure Monitoring Systems, 70 Fed. Reg. 18,136, 18,148
(Apr. 8, 2005). Public Citizen argues that this lag time is
inconsistent with the TREAD Act, and that the warning light
should be required to activate within one minute of under-
inflation. Public Citizen contends that under Standard 138,
some drivers will never receive a warning (or will receive it
long after the initial under-inflation) because they always or
usually operate their cars on trips that last less than 20
minutes. In support of its standing, Public Citizen argues that
some of these drivers will suffer accidents that would not
occur with a one-minute standard.
Tellingly, Public Citizen admits that any increased risk of
injury from the 20-minute lag time as compared to a one-
minute lag time is “more difficult to quantify” than the risk
related to its other claims. Public Citizen Supp. Br. at 16.
Public Citizen’s attempt to calculate risk from the 20-minute
lag time is fundamentally flawed. Public Citizen’s statistician
tried to calculate the risk of injury from the 20-minute
requirement by first estimating the percentage of Americans’
commutes that are shorter than 20 minutes and then using that
figure in a convoluted effort to establish increased risk of
harm. This calculation is simplistic and unreliable. To begin
with, Public Citizen makes no effort to determine the length
of all car trips, including trips other than work commutes, in
11
order to arrive at an accurate overall estimate of short trips
when a warning might not sound. Public Citizen also does
not account for the rather obvious fact that Americans with
shorter-than-20-minute commutes also operate their vehicles
on longer-than-20-minute trips. As NHTSA’s Division Chief
said, “Public Citizen’s conclusions do not account for vehicle
trips not associated with commut[ing], such as errands and
other routine driving, that last longer than 20 minutes and that
would allow a system minimally compliant with the standard
to detect and warn of low tire pressure.” Decl. of NHTSA
Division Chief George Soodoo ¶ 18. Public Citizen’s
statistics are simply not reliable for determining how many (if
any) more accidents will likely occur with a 20-minute
requirement rather than a one-minute requirement. Therefore,
Public Citizen has not met its burden to establish standing for
this claim.
C
Standard 138 uses a 25-percent-below-placard-pressure
measure to trigger the warning light for under-inflation.
Public Citizen argues that the standard violates the TREAD
Act’s requirement that the system activate when a tire is
“significantly under inflated.” 49 U.S.C. § 30123 note.
To demonstrate its injury in fact for this argument, Public
Citizen attempts to quantify the increased risk of injury from
the 25-percent-below-placard pressure adopted by Standard
138, as compared to the so-called “Tire & Rim Association”
or “T&RA” minimum pressure. The T&RA pressure is set by
the Tire & Rim Association as the minimum tire pressure
required to safely carry a car operating at its maximum load.
Public Citizen here argues that any tire that falls below the
T&RA pressure is “significantly under inflated” for purposes
of the TREAD Act. It claims that the increase in annual risk
12
of fatalities to its members as a result of Standard 138’s using
the 25-percent standard for under-inflation instead of the
T&RA standard is between .21 and 1.2 in 1,000,000. The
alleged increase in lifetime risk of fatalities is between 1.2
and 8.3 in 100,000. Public Citizen argues that these estimates
exceed the risk estimates that supported standing in NRDC v.
EPA, 464 F.3d 1, 7 (D.C. Cir. 2006), and that it therefore has
standing to advocate for the T&RA pressure trigger.
The problem for Public Citizen, however, is that its
submissions in support of standing are undermined by at least
two significant statistical flaws. First, Public Citizen’s
calculations are flawed because they are based on tire-failure
data that include recalled tires and tires subject to safety
programs. When NHTSA calculated the benefits of Standard
138, however, it removed those tires from its analysis because
their failure was most often due to structural defects and not
necessarily tire pressure. See Decl. of NHTSA Division Chief
George Soodoo ¶ 29 (“[R]ecalled tires typically involve a
performance defect. As such, it is not proper to assume that
their failure is linked to low tire pressure.”). As the NHTSA
statistician who performed the analysis explained, the agency
excluded recalled tires from the data pool because including
them would “likely produce misleading results” and skew the
relationship between under-inflation and tire failure. Decl. of
NHTSA Statistician Susan C. Partyka ¶ 27; see also Decl. of
Intervenor’s Consultant M. Laurentius Marais ¶ 14 (including
recalled tires is “unreasonable, unscientific, and unwise”).
Public Citizen’s tire-failure data (and resulting risk statistics)
include recalled tires, resulting in an overstated tire-failure
rate and thus an overstated risk attributable to Standard 138.
Second, Public Citizen also overstates the supposed risk
from using the 25-percent-below-placard-pressure instead of
T&RA pressure as the warning trigger in Standard 138. Its
13
statistical consultant based many of his risk calculations on
his estimate that 58 percent of cars have a T&RA pressure
that is higher than the 25-percent-below-placard trigger –
meaning that in 58 percent of cars, the under-inflation
warning would sound earlier if the T&RA pressure were the
warning trigger, thus purportedly reducing the risk of death,
injury, or property damage to Public Citizen’s members. But
Public Citizen did not account for the fact that in its own
estimate, 42 percent of cars have a T&RA pressure that is
equal to or lower than the 25-percent-below-placard trigger in
Standard 138. According to Public Citizen’s statistics, the
T&RA pressure is lower than the 25-percent-below-placard
trigger in 39 percent of cars, meaning that in those cars, the
warning would sound later under a T&RA-pressure-based
system than it will under Standard 138. Essentially, Public
Citizen estimated all of the supposed benefits of the T&RA
standard but none of the costs, resulting in calculations that
dramatically overstate the risk to Public Citizen’s members
under Standard 138.
For either of these two alternative reasons, Public
Citizen’s calculations are unreliable. Public Citizen therefore
has not met its burden to demonstrate standing with respect to
the 25-percent-below-placard-pressure warning threshold in
Standard 138.2
2
In addition, it does not appear that Public Citizen complied
with our original opinion’s order that it file affidavits addressing the
difference in risk of injury between Standard 138 and the proposals
“that Public Citizen has advanced.” Public Citizen, 489 F.3d at
1297 (emphasis added). Public Citizen never argued to NHTSA
that the T&RA pressure was the appropriate measure for significant
under-inflation. Rather, that was the tire manufacturers’ position.
Public Citizen instead advocated a “20-percent underinflation
detection” standard. Public Citizen Comments on Std. 138, at 6
14
***
If we were deciding this case based solely on the
Supreme Court’s precedents, we would agree with the
separate opinion. As we read our decisions in Mountain
States and NRDC, however, “this Court has not closed the
door to all increased-risk-of-harm cases.” Public Citizen, 489
F.3d at 1295. In an appropriate case, the en banc Court may
have to consider whether or how the Mountain States
principle should apply to general consumer challenges to
safety regulations. In the meantime, “the constitutional
requirement of imminence as articulated by the Supreme
Court” requires “a very strict understanding of what increases
in risk and overall risk levels” will support injury in fact. Id.
at 1296.
(Nov. 15, 2004), J.A. 1087. Public Citizen confirmed its position in
its initial standing declaration in this Court. See Initial Standing
Decl. of Public Citizen President Joan Claybrook ¶ 5 (“Public
Citizen submitted comments . . . supporting” monitoring systems
“that would alert drivers when one [or] more of their vehicles’ tires
were 20 percent under-inflated.”); see also Public Citizen, Inc. v.
Mineta, 340 F.3d 39, 62 (2d Cir. 2003) (rejecting Public Citizen’s
argument for a 20-percent-below-placard-pressure standard in its
challenge of the first version of Standard 138). Public Citizen’s
materials thus do not appear to comply with this Court’s order.
Because Public Citizen’s statistical analysis is unreliable, however,
we need not rely on this apparent defect.
15
Under this Circuit’s precedents, Public Citizen has not
met its burden to demonstrate injury in fact. See id. at 1295.
We dismiss its petition for review.3
So ordered.
3
Because we find that Public Citizen has not demonstrated
injury in fact and thus lacks standing to challenge Standard 138, we
need not address its submissions regarding causation. See Public
Citizen, 489 F.3d at 1297 n.3.
SENTELLE, Circuit Judge, concurring in the judgment: I
agree with the majority that this case must be dismissed. I
remain of the opinion that it should have been dismissed in its
last appearance before this Court, see Public Citizen, Inc. v.
Nat’l Highway Traffic Safety Administration, 489 F.3d 1279,
1298 (D.C. Cir. 2007) (Sentelle, J., dissenting). As the majority
noted in the earlier iteration of this litigation, the probabilistic
approach to standing now being applied in increased-risk cases
expands the “‘proper—and properly limited’—constitutional
role of the Judicial Branch beyond deciding actual cases or
controversies; and . . . entail[s] the Judiciary exercising some
part of the Executive’s responsibility to take care that the law be
faithfully executed.” Public Citizen, 489 F.3d at 1295 (quoting
Daimler Chrysler v. Cuno, 547 U.S. 332 (2006)). As the
majority further recognized in the earlier opinion, “[t]o 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.” 495 F.3d at 1295 (citing
Laird v. Tatum, 408 U.S. 1, 15 (1972)).
As the majority succinctly stated in the earlier opinion:
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.
Id. The majority’s discussion today illustrates the ill fit between
judicial power and that sort of future event and possible harm.
The wide-ranging, near-merits discussion at the standing
threshold is the sort of thing that congressional committees and
executive agencies exist to explore. The judicial process is
constitutionally designed for cases or controversies involving
actual or imminent harm to identified persons—that is, the
2
persons who have standing. If we do not soon abandon this idea
of probabilistic harm, we will find ourselves looking more and
more like legislatures rather than courts.
I agree with the majority that this case must be dismissed.