In a decision that might affect current or future challenges to highway safety rules, the Court of Appeals for the District of Columbia has refused to take as a given that Public Citizen has standing to sue the National Highway Traffic Safety Administration for stronger rules regarding automatic tire pressure monitoring on automobiles and light trucks. Public Citizen interprets the so-called TREAD Act as requiring more stringent rules than those adopted by NHTSA.
In a June 15 opinion, a three-judge appeals court panel postponed a decision on Public Citizen’s standing until the organization filed supplemental submissions. Judge David Sentelle disagreed with his colleagues, saying he would reject standing outright and not give Public Citizen another chance to establish standing.
The appeals court ordered Public Citizen to file affidavits addressing whether NHTSA’s rule 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. In addition, Public Citizen must address 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.”
“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,” the court ruled. “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.”
The appeals court noted that the Supreme Court has distinguished among three kinds of harm — actual harms, imminent harms and potential future harms that are not imminent. “Treating the increased risk of future harm as an actual harm, however, would eliminate these categories,” the appeals court said. “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.”
Public Citizen also is a lead plaintiff in a lawsuit challenging the Federal Motor Carrier Safety Administration’s hours-of-service (HOS) regulations. It’s unclear, however, whether the June 15 decision in the NHTSA case will have a direct impact on the FMCSA litigation. The facts of the two cases aren’t the same, of course, and none of the judges involved in the NHTSA case are involved in the FMCSA case. Moreover, it’s not clear whether the fact that the appeals court has allowed Public Citizen to sue FMCSA over the HOS rules in the past would make a difference in the question of standing.
Interestingly, Judge Sentelle, who would have rejected standing in this case, wrote the July 2004 decision agreeing with Public Citizen that the HOS rules should be invalidated. That decision, however, turned narrowly on the question of whether FMCSA followed the specific mandate from Congress to consider the impact on driver health.
