Food & Water Watch, Inc. v. Thomas Vilsack
420 U.S. App. D.C. 366
| D.C. Cir. | 2015Background
- Plaintiffs (two individual consumers and Food & Water Watch (FWW)) challenged USDA’s New Poultry Inspection System (NPIS), alleging it shifts inspection duties to industry employees, reduces online inspector scrutiny, and will increase foodborne illness risk.
- NPIS was promulgated after FSIS’s HIMP pilot and final rule made adoption optional and reduced maximum line speeds (final young-chicken speed = 140 birds/minute); NPIS reallocates FSIS effort to more offline verification and pathogen testing.
- Plaintiffs sought declaratory and injunctive relief and moved for a preliminary injunction; District Court dismissed for lack of Article III standing at the motion-to-dismiss stage (no discovery had occurred).
- On appeal the D.C. Circuit reviewed standing de novo under the Rule 12(b)(1) pleading-stage standard and applied the heightened test for increased-risk-of-harm claims: plaintiff must show (1) a substantially increased risk of the ultimate harm and (2) a substantial probability of harm given that increase.
- Court held plaintiffs failed to plausibly allege (a) NPIS substantially increases risk of foodborne illness compared to existing systems (plaintiffs’ factual allegations and statistics were insufficient and did not account for increased offline inspections or rule amendments), and (b) avoidance costs were self-inflicted and not fairly traceable to NPIS.
- Court also held FWW lacks organizational standing because it alleged only abstract mission frustration and expenditures for advocacy/education, not a perceptible impairment of organizational activities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — individuals/associational standing based on increased risk of harm | NPIS will substantially increase risk of foodborne illness from adulterated poultry, giving consumers imminent injury | Plaintiffs fail to plausibly plead a substantial increase in risk or substantial probability of harm; FSIS’s risk assessments do not support plaintiffs’ inference | Dismissal affirmed: plaintiffs did not plausibly allege substantially increased risk or sufficient probability of harm for standing |
| Standing — injury from avoidance costs | Plaintiffs claim they will incur added costs (seeking non-NPIS poultry or avoiding poultry) as a concrete injury | Avoidance costs are self-inflicted and speculative when underlying increased-risk theory is not established | Held for defendant: avoidance costs not fairly traceable to NPIS and insufficient for standing (Clapper principle) |
| Organizational standing (FWW) — injury to organizational interests | FWW says NPIS conflicts with its mission and it will need to expend resources educating members and encouraging avoidance | Defendant: FWW alleges only abstract mission frustration and anticipatory advocacy expenses, not impairment of core operations | Held for defendant: FWW lacks organizational standing — expenditures are pure issue-advocacy and no perceptible impairment of activities alleged |
| Procedural injury (APA/notice-and-comment etc.) | Plaintiffs assert procedural violations give standing | Defendant: procedural violations alone do not create Article III injury absent concrete interest affected | Held for defendant: procedural injury claim fails because no substantive injury shown |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete, particularized, imminent injury)
- Bennett v. Spear, 520 U.S. 154 (standing elements assessed with the evidence standard appropriate to the litigation stage)
- Public Citizen v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279 (D.C. Cir.) (increased-risk-of-harm test: substantial increase in risk and substantial probability)
- NRDC v. EPA, 464 F.3d 1 (D.C. Cir.) (use of statistics to show increased risk must plausibly demonstrate substantial increase)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (avoidance costs based on speculative threat are self-inflicted and not fairly traceable)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (standing burden rests with party invoking federal jurisdiction)
- Am. Fed’n of Gov’t Empls. v. Glickman, 215 F.3d 7 (D.C. Cir.) (earlier HIMP challenge re: delegation)
- Am. Fed’n of Gov’t Empls. v. Veneman, 284 F.3d 125 (D.C. Cir.) (modified HIMP lawful but cautioned re: future rulemaking)
- PETA v. USDA, 797 F.3d 1087 (D.C. Cir.) (organizational standing where government action deprived org. of investigatory information and redress mechanisms)
- Coalition for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275 (D.C. Cir.) (plaintiffs lacked standing where reasonable, available alternative existed and costs of avoidance were self-inflicted)