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With regard to the United States Supreme Court's description of what constitutes an "injury in fact" sufficient to confer standing--such injuries must be actual or imminent, not conjectural or hypothetical--courts have recognized that increases in risk can at times be "injuries in fact" sufficient to confer standing. Environmental and health injuries often are purely probabilistic. Courts have cautioned that this category of injury may be too expansive. 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. Courts therefore generally require that petitioners demonstrate a substantial probability that they will be injured. The relevant variations in risk must be non-trivial and sufficient to take a suit out of the category of the hypothetical.
Natural Resources Defense Council (NRDC) filed suit against respondents, the Environmental Protection Agency (EPA) and its Administrator, alleging that respondents violated decisions made pursuant to the Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 1522 U.N.T.S. 29, by implementing 40 C.F.R. pt. 82 to establish 2005 critical use exemptions to the treaty's ban on the production and consumption of methyl bromide. NRDC alleged that the EPA violated certain "decisions" that were designed to expound upon the requirements of the Protocol by failing to disclose the full amount of existing methyl bromide stocks, failing to offset new production and consumption by the full amount of these stocks, and by failing to reserve the stocks for critical uses, as well as failing to ensure that 40 C.F.R. pt. 82, 69 Fed. Reg. 76,986, 76,988, 76,990, 76,991, authorized no more than the feasible minimum.
Did the group satisfy the injury-in-fact requirement of U.S. Const. art. III standing?
The court held that the group had standing to file the suit because based on the damage that the allegedly unlawful increased amounts of methyl bromide would have on the ozone layer, statistics revealed that two to four members of the group would develop cancer, thereby satisfying the injury-in-fact requirement of U.S. Const. art. III standing. Even if the rules implemented by the EPA as to the 2005 critical use exemption amounts were inconsistent with the Protocol's decisions, which were post-treaty agreements, the EPA had not violated the law because the decisions were not law and could not be enforced in federal court, but rather, were international political commitments.