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Further Developments in the D.C. Circuit's Article III Standing Analysis: Are Environmental Cases Safe From the Court's Deepening Skepticism of Increased-Risk-of-Harm Claims?

July 2008

Citation: 38 ELR 10460

Issue: 7

Author: Cassandra Sturkie and Suzanne Logan

Editor's Summary: Following the issuance of two significant decisions in 2006 addressing whether claims of "probabilistic" injury are cognizable for Article III standing purposes, the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit has continued to develop its jurisprudence on this important constitutional question. In this Article, Cassandra Sturkie and Suzanne Logan examine how the D.C. Circuit has analyzed these "increased-risk-of-harm" claims in four cases decided between November 2006 and January 2008. They consider how the court's analysis has varied depending on the nature of the case, focusing on the court's decision to sidestep claims of increased risk in an environmental case. They give special attention to Chief Judge David B. Sentelle's repeated criticisms of such claims before he became Chief Judge in February 2008, and consider what his leadership might mean for this issue. Finally, they offer new lessons for environmental law practitioners, their clients, and governmental litigants.

Cassandra Sturkie is a senior associate at Latham & Watkins LLP in the firm's Washington, D.C., office. She is a member of the Environment, Land, and Resources Department. She can be reached at cassandra.sturkie@lw.com. Suzanne Logan is also an associate in the firm's Washington, D.C., office, where she works primarily on environmental matters. [Editors'Note: Claudia O'Brien, a partner in the Washington, D.C., office of Latham & Watkins LLP, and Ms. Sturkie represented the American Forest and Paper Association in the Wood MACT litigation discussed in this Article. Ms. O'Brien was lead counsel for all industry intervenors and argued the standing claims at oral argument before the D.C. Circuit. She can be reached at claudia.o'brien@lw.com.]

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