Covington v. Jefferson County

GOULD, Circuit Judge,

concurring:

As a court we need not today reach any further conclusion on standing beyond that in Part III.B. However, there is an additional theory under which I believe the Covingtons may have standing to advance their Clean Air Act (“CAA”) claims based on ozone degradation. I feel it appropriate to set forth this theory because of its potential application in any other cases where widespread or even global environmental impact is threatened by a federal statutory wrong.1

It is beyond doubt that the release of CFCs degrades the stratospheric ozone layer. See David W. Fahey, Twenty Questions and Answers About the Ozone Layer in Scientific Assessment of Ozone Depletion: 2002, Global Ozone Research and Monitoring Projec—Report No. 47, 498 pp., Geneva, 2003, Q.8-Q.10, now available at http:// www.unep.org/ozone/pdf/11-qa. pdf (hereinafter “Twenty Questions”).2 Some of the CFCs improperly released by the landfill will enter the stratospheric ozone layer and allow more UV radiation to reach the surface of the Earth. Id. at Q.8-Q.9.

Depending on the type of CFC released, the improperly released gas will have an atmospheric lifetime of 45 to 100 years.3 Id. at Q.11. In that extensive time span, each CFC, converted to chlorine monoxide (CIO) after reactions with sunlight, can destroy hundreds of molecules of stratospheric ozone because the CIO is a catalyst. CIO first reacts with an oxygen atom *650(0) to form a chlorine atom (Cl) and an oxygen molecule (02). The chlorine atom (Cl) reacts with an ozone molecule (03) to re-form CIO along with an oxygen molecule (02). The CIO, then, is ready to begin the ozone-depletion cycle once more.4 Once released, CFCs by natural processes create CIO, which is an unrelenting destroyer of ozone.5 Because this process occurs at the molecular level, it is difficult for us to fathom the cumulative impact of repetitive small destructions of ozone, but science knows that the impact of this process, if unrestrained, will be devastating to all life on earth.6

Science is conclusive that stratospheric ozone gives humans necessary protection from otherwise life-threatening ultraviolet-B (UV-B) radiation.7 Id. at Q.5 (noting that unless stratospheric ozone blocks harmful UV-B radiation, the UV-B radiation would reach the earth and increase the incidence of skin cancer, cataracts, and suppressed immune systems). The Covingtons, with every person on this planet, face an increased risk of these maladies if the landfill releases CFCs into the air. The Covingtons fear this “pollution of] their environment.”

It may seem counter-intuitive to assert that grave environmental harms can follow from the improper release of fluids and gases from about a hundred or so discarded refrigerators in rural Idaho. And, of course, the scope of harm that could flow from one landfill is perhaps minor. Yet the cumulative harm from continuing unrestrained release of CFCs from thousands of landfills over decades of time presents a clearer picture of risk to the environment. It is not our task to assess risks of environmental harm from release of CFCs, insofar as a judgment has already been made by Congress in the Clean Air Act, recognizing this injury. While the landfill here only contributes to a fraction of overall ozone depletion, it cannot be doubted that the actions of the landfill operators to a degree increase ozone depletion, which in turn increases UV-B radiation reaching the earth, which in turn increases the risk of maladies that flow from increased UV-B radiation, to the detriment of every person on the earth.

Though the landfill’s release of CFCs contributes to a process that can cause global harm if not restrained, that alone does not resolve the standing question. The Covingtons suffer no greater injury than any other person, and that poses a very challenging question under some standing precedents. Under some precedents, the existence of a widely shared *651injury may be thought to compel a conclusion that the injury was not “concrete and particularized.” E.g., United States v. Richardson, 418 U.S. 166, 176-77, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (stating that generalized grievances do not give rise to a concrete injury); Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (same). This theory may be summed, at least by detractors, as “injury to all is injury to none” for standing purposes. Yet I do not think that this theory is compelled by precedent, and no Supreme Court case has squarely confronted the proper standing rule to be applied in a case where the alleged injury is shared by all persons. A theory that “injury to all is injury to none” seems wrong in theory, for it would deny standing to every citizen such that no matter how badly the whole may be hurt, none of the parts could ever have standing to go to court to cure a harmful violation. The Supreme Court has recognized this very concern. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (“To deny standing to persons who are in fact injured because many others are also injured, would mean that the most injurious and widespread ... actions could be questioned by nobody. We cannot accept that conclusion.”).

The issue then is whether current Supreme Court precedent supports standing for a citizen suit asserting environmental claims raising a threat of widespread or even global injury. This issue is not easy in view of apparent shifts in direction or emphasis from the Supreme Court’s precedent over time. But the most recent Supreme Court precedent appears to have rejected the notion that injury to all is injury to none for standing purposes. Instead, recent precedent holds that a generalized injury, by itself, is no bar to standing. See Fed. Election Comm’n v. Akins, 524 U.S. 11, 23-24, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (holding that in order for a “generalized grievance” to bar standing, the harm must be widely shared and of “an abstract and indefinite nature”) (emphasis added). A concrete actual injury, even though shared by others generally is sufficient to provide injury in fact. It appears to be abstractness, not wide dispersal, of an injury that may prevent the injury from being sufficient to confer standing. Id. at 24, 118 S.Ct. 1777. As the Court in Akins clarified, “an injury ... widely shared ... does not, by itself, automatically disqualify an interest for Article III purposes. Such an interest, where sufficiently concrete, may count as an ‘injury in fact.’ ” Id. (emphasis added). See also Pye v. United States, 269 F.3d 459, 469 (4th Cir.2001) (“[s]o long as the plaintiff ... has a concrete and particularized injury, it does not matter that legions of other persons have the same injury”). Akins can be seen to shift the focus from the widespread (or generalized) nature of an injury, the focus of prior precedent, and to turn the focus upon the concreteness of the injury, however widespread. Stated another way, the Supreme Court’s precedent may be read to support a general rule of standing along these lines: If the injury is not concrete, there is no injury in fact even if the injury is particularized; and if the injury is concrete and particularized, there is injury in fact even if the injury is widespread. Concreteness of injury, so long as it is particularized,8 appears to be *652the touchstone for the injury in fact element of standing. See Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130.

Applying this principle in the context of environmental litigation under the CAA makes sense because violations that damage air quality will quite often be injurious to thousands or even millions of persons. Environmental harms such as acid rain, contaminated water, and bad air, if they occur, do not target individuals. They affect us all. This principle reaches its zenith in the case of a claim of damage to an ozone layer which, if it occurs, can destroy or impair life across the globe. After Akins, the superordinate question about the injury requirement here is whether the injury suffered by the Covingtons is concrete rather than “abstract and indefinite.” I believe that it is, • for several reasons.

First, as explained above, the scientific evidence shows a marginal increase in the risk of serious maladies from increased UV-B radiation that results from the landfill’s release of CFCs. I recognize that the environmental follies and errors committed at one landfill in rural Idaho, no matter how egregious, can cause only a small increase in risk to the world, including threat to the Covingtons. But the size of the injury to the environment, even. if small from improper CFC releases at one landfill, would appear to -have no bearing on whether the increased risk to the Cov-ingtons is “concrete.” See Central Delta Water Agency v. United States, 306 F.3d 938, 948, 950 (9th Cir.2002) (holding that “ ‘to require actual evidence of environmental harm, rather than an increased risk based on a violation of the statute, misunderstands the nature of environmental harm’ .... a credible threat of harm is sufficient to constitute actual injury for standing purposes”) (quoting Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1151 (9th Cir.2000)); Hall v. Norton, 266 F.3d 969, 976 (9th Cir.2001) (holding that “evidence of a credible threat to the plaintiffs physical well-being from airborne pollutants” is sufficient to satisfy the injury requirement); Churchill County v. Babbitt, 150 F.3d 1072, 1078 (9th Cir.1998) as amended, 158 F.3d 491 (9th Cir.1998) (claimant need only establish “the reasonable probability of the challenged action’s threat to [his] concrete interest”) (internal quotation marks omitted). See also SCRAP, 412 U.S. at 689 n. 14, 93 S.Ct. 2405 (rejecting the theory that a minimum quantum of injury is needed for standing). Because the injury in fact requirement “is qualitative, not quantitative, in nature,” Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 357-58 (5th Cir.1999), the probability of harm necessary for injury in fact varies with the severity of the probable harm. Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1234 (D.C.Cir.1996) (“[t]he more drastic the injury ... the lesser the increment in probability necessary to establish standing”). Here, if ozone is lost, more radiation makes it through the atmosphere to create a risk of higher incidence of skin cancer, cataracts, and/or a depressed immune system. Twenty Questions at Q.5. These are deadly serious maladies, and the risk of such grave harms minimizes the required probability of their occurrence for injury in fact purposes. Thus the Coving-tons’ exposure and fear of exposure to heightened risk of such harms appear to be concrete injuries.

Second, whatever we may personally feel about small but increased risks of serious human maladies arising from ozone *653destruction, Congress recognized this precise injury by out-lawing the disposal of refrigerants in a way that allows CFCs to enter the environment and by requiring the EPA to promulgate regulations to govern the disposal and recycling of such CFCs. See 42 U.S.C. § 7671g. Federal regulations require certain procedures to be followed to ascertain and ensure that no CFCs are released into the environment during the disposal process. See 40 C.F.R. §§ 82.156(f); 82.166(i), (m). Congress explicitly decided that any citizen could sue to enforce these laws. See 42 U.S.C. § 7604(a)(1); § 7604(f)(3) (as amended by Pub.L. 101-549, § 707(e)). Congress made CFC control a requirement of the CAA, a requirement expressly enforceable by citizen suit. I cannot ignore the danger that Congress recognized, sought to prevent, and accordingly deemed an injury. The Covingtons’ asserted harms fall within the injuries recognized by Congress. The Covingtons, as part of the public, have a corresponding right to vindicate their statutory protections. “Congress has the power to define injuries ... that will give rise to a case or controversy where none existed before .... ” Defenders of Wildlife, 504 U.S. at 580, 112 S.Ct. 2130 (Kennedy, J., concurring); Akins, 524 U.S. at 22, 118 S.Ct. 1777 (noting that the statute at issue “[sought] to protect individuals such as respondents from the kind of harm they say they have suffered”). See also Friends of the Earth, Inc. v. Gaston Copper Recycling, Corp., 204 F.3d 149, 156 (4th Cir.2000) (en banc) (noting that the plaintiff “alleged precisely [those] types of injuries that Congress intended to prevent”); Baur v. Veneman, 352 F.3d 625, 635 (2d Cir.2003) (“there is a tight connection between the type of injury which [the plaintiff] alleges and the fundamental goals of the statutes which he sues under — reinforcing [his] claim of cognizable injury”).9 The dangers to citizens from ozone depletion following CFC release, which Congress recognized and sought to control, is reinforced by Congress’s recognition of the individual nature of this harm by an explicit grant of a right to citizen suit when interested officials do not timely act to protect the air.

Third, the Supreme Court has held that even less concrete injury than present here is sufficient for standing purposes. In Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), the Court declared that the relevant inquiry is whether there is harm to the plaintiff, not whether .there is harm to the environment. Id. at 181, 120 S.Ct. 693. The Court then examined the claimed harm to the plaintiffs, which largely included the plaintiffs refraining from using a river because of subjective fears of its pollution. The Court held that these sworn statements “adequately documented injury in fact” because the plaintiffs’ “reasonable concerns” about the pollution directly affected the plaintiffs’ “recreational, aesthetic, and economic interests.” Id. at 183-84, 120 S.Ct. 693. If subjective fear of river pollution alone is enough for injury in fact, then a fortiori objective and certain increased *654risks of skin cancer, cataracts, and depressed immune systems may satisfy the injury in fact standard.

For these reasons, I believe that the Covingtons’ injury from increased risks of maladies caused by ozone depletion, which will follow from mishandling of white goods at the landfill, is concrete and particularized. And, upon analysis, the remaining elements of constitutional standing appear satisfied.

There appears to be causation. There is a scientifically proven link between CFCs and ozone-depletion. The release of CFCs thus causes an increased risk of harm to the Covingtons. To hold that there is no causation here “would permit virtually any contributory cause to the complex calculus of environmental harm to be ignored as too small to supply the causal nexus required for standing.” City of Los Angeles v. Nat’l Highway Traffic Safety Admin., 912 F.2d 478, 498 (D.C.Cir.1990), overruled by Florida Audubon Soc’y v. Bentsen, 94 F.3d 658 (D.C.Cir.1996).10 Moreover, when system-wide harms are probabilistic, “with, widespread impact, courts must be especially careful not to manipulate the causation requirements of standing so as to prevent the anticipated regulatory beneficiaries from gaining access to court.” Id. at 495 n. 5 (citing Cass Sunstein, Standing and the Privatization of Public Law, 88 Colum. L.Rev. 1432, 1463 (1988); Daniel Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs arid Defendants as Private Attorneys General, 88 Colum. L.Rev. 247, 304 (1988)). By proscribing the unregulated release of CFCs and by authorizing citizen suits to enforce this prohibition, Congress unmistakably expressed a belief that the release of CFCs causes injury to residents of the United States. “Congress has the power to ... articulate chains of causation that will give rise to a case or controversy where none existed before. ...” Defenders of Wildlife, 504 U.S. at 580, 112 S.Ct. 2130 (Kennedy, J., concurring). See also Pierce § 16.8 (“Courts should also defer to legislative determinations of causal relationships”).

Finally, I believe that the injury is imminent and redressable. The increased risk of intensified exposure to UV-B radiation occurs on release of the CFCs, making the injury imminent. Moreover, the injury is redressable: Though a citizen’s suit cannot recapture the CFCs that have been released, the civil penalties authorized under the Clean Air Act are more than sufficient to meet the redressability standard because they will deter future violations. See Laidlaw, 528 U.S. 167, 185-86, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

I recognize that the ozone depletion theory might permit constitutional standing sufficient for any person to sue Jefferson County for its operation of the landfill. However, it may be noted that the Second Circuit has held that although “any citizen could have standing .... standing is not to be denied simply because many people suffer the same injury.” Baur, 352 F.3d at 635 (quoting SCRAP, 412 U.S. at 687, 93 S.Ct. 2405) (internal quotation marks omitted).11 If courts would accept personal *655standing based solely on ozone depletion claims, most likely future cases would still follow the mold in this case: that is, concerned neighbors who witness ongoing violations of federal law designed to minimize release of CFCs can be expected to sue to stop such violations. If this is incorrect, however, the courts would have the ability to limit the scope of permissible litigation through the application of the prudential standing doctrine. See, e.g., Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

The Supreme Court’s standing precedents, when sensibly read as a whole, may reject the idea that “injury to all is injury to none.”12 A widespread injury, in itself, is no bar to constitutional standing. The landfill has increased the Covingtons’ risk of UV-B related health maladies. I see nothing in the Constitution or in Supreme Court precedent that would prevent the Covingtons from having constitutional standing on that basis alone.

.Because this argument was not briefed by the parties, and its resolution is not necessary to decide this case, I reserve judgment on the question posed in my concurrence. However, I set forth my preliminary views because I believe that the issues raised inevitably may have to be confronted in the future if and when plaintiffs relying on federal statutes raise claims of injury based on globally shared harm with no unique personal injury.

. The answers to the twenty questions were reviewed, discussed, and accepted by over 74 atmospheric scientists, see Twenty Questions at Q.l n.l.

. An atmospheric life span is how long it takes for natural processes to remove 60% of the gas. Twenty Questions at Q.l 1.

. To be precise, the chemical reaction, as described in Twenty Questions, occurs as follows:

(1) CIO + O^Cl + 02
(2) Cl + 03 CIO + 02

The net result of this reaction is that the CIO converts one oxygen atom and one ozone molecule into two oxygen molecules (O + 03 f 2 02). As is apparent, the CIO, after converting to a simple chlorine atom (Cl), returns to chlorine monoxide by devouring an ozone molecule.

. And this reaction is the least devastating of the three methods by which ozone is destroyed by CFCs. See id. at Q.16-Q.17 (including explanation of polar stratospheric clouds).

. Only the random fortuity of external reactions with the CIO molecule prevents this ozone-depleting reaction from occurring ad infinitum. Id. at Q.16.

. There is also a potential destructive impact of UV-B on terrestrial plant life (including farm crops), single-cell organisms (which are at the base of all food chains), and aquatic ecosystems. Id. at Q.5. Not only humans but other life forms are threatened by loss of ozone, which is not surprising because all species apparently evolved with ozone cover. See generally Charles Darwin, On the Origin of Species (1st ed. 1859); Richard Dawkins, The Blind Watchmaker (1986).

. For an injury to be particularized it must "affect the plaintiff in a personal and individual way.” Defenders of Wildlife, 504 U.S. at 560 n. 1, 112 S.Ct. 2130. The increased risk of skin cancer, cataracts, and/or a suppressed immune system affect the Covingtons in a personal and individual way. Because the asserted injury is so clearly particularized, my *652analysis focuses more on whether the injury is sufficiently concrete in light of the widespread injury.

. See also Cass Sunstein, Standing Injunes, 1993 Sup.Ct. Rev. 37, 58 (1994); Jerry L. Mashaw, "Rights" in the Federal Administrative State, 92 Yale L.J. 1129, 1168 (1983); 1 Laurence H. Tribe, American Constitutional Law 397 (3d ed.2000) ("there is good reason to afford Congress a wide berth in specifying ... new forms of 'injury' "); 3 Richard J. Pierce, Jr., Administrative Law Treatise § 16.8 (4th ed. 2002) ("Through the process of statutory enactment, the legislature can make legally cognizable forms of injury that the Court previously would have considered unduly abstract. ... Once the legislature has declared a form of injury legally cognizable ... the Court's power and authority to decline to recognize that form of injury is severely limited.”).

. I cite this analysis in City of Los Angeles because it is persuasive as applied here. Further, the overruling of City of Los Angeles by the D.C. Circuit en banc was made in light of the Supreme Court's .constriction of standing as exemplified in Defenders 'of Wildlife. The rejection of further contraction of standing in Akins and Laidlaw is pertinent to my analysis.

. The Second Circuit in Baur held that an individual plaintiff had sufficiently asserted injury in fact by alleging that a USDA regulation allowing the use of "downed” livestock (livestock that collapse and die for unknown reasons) for human consumption created an increased risk of death to the plaintiff. The plaintiff alleged that some downed livestock *655may have died from Bovine Spongiform Encephalopathy ("BSE" or "Mad Cow” disease) and that allowing these animals to be consumed by humans increased the plaintiff’s individual risk of contracting the human variant of this deadly disease. The Second Circuit held that this was sufficient for injury in fact notwithstanding that the probability of risk was small, given that BSE, at the time of the opinion, had not been detected in the United States, and that the plaintiffs injury was widespread and undifferentiated (affecting potentially every consumer of meat throughout the United States). This holding is only reinforced by the subsequent discovery of a case of BSE in a downed cow near Yakima, Washington. See, e.g., Shankar Ve-dantam, Mad Cow Case Found in U.S. for First Time, Wash. Post, Dec. 24, 2003, at A1.

. A respectable counterpoint would be the theory that injury to all does not justify private litigation and may be redressed only by the political branches, or the federal government's institution of litigation. However, for the reasons expressed above, I favor the idea that Article III permits an open standing theory on issues of widespread or even global impact, subject to prudential standing limits.