Law Commons^™

Substance Or Illusion? The Dangers Of Imposing A Standing Threshold, Amanda Leiter

Amanda Leiter

Individuals and interest groups challenging agency action or inaction often must allege not that they or their members have been or certainly will be harmed by the agency’s approach, but instead that they face an increased risk of future harm. Courts struggle to analyze standing in these so-called “increased-risk” cases: Does the elevated risk constitute the necessary injury-in-fact, or must the likelihood of realized harm exceed a certain threshold before the case becomes cognizable? Several circuits take the former view, but the D.C. Circuit requires plaintiffs to establish that the alleged risk clears some indeterminate “sufficiency” or “substantiality” bar. The …