Pritikin appealed the district court's award of summary judgment to the Department of Energy (DOE). Pritkin had filed a citizen suit alleging that the DOE had violated provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)[1] and the Administrative Procedure Act (APA).[2] Pritikin sought a declaration that, under CERCLA, DOE was required to fund a medical monitoring program by the Agency for Toxic Substances and Disease Registry (ATSDR) to screen the population near the Hanford Nuclear Reservation.[3] Pritikin also sought to enjoin the DOE to include the Hanford medical monitoring costs in any future budget requests, reallocate current funds towards medical monitoring, and report to Congress DOE's failure to fund the ATSDR medical monitoring program in compliance with CERCLA. The district court found that it lacked subject matter jurisdiction because Pritikin did not meet the necessary requirements under CERCLA for bringing a citizen's suit[4] and because there was no final agency decision that could be appealed. The Ninth Circuit affirmed but relied on an alternative line of reasoning, finding that Pritikin lacked constitutional standing.[5]
The Ninth Circuit, citing Lujan v. Defenders of Wildlife (Defenders),[6] outlined the three criteria for constitutional standing: injury, causation, and redressability. DOE did not challenge the injury prong of the standing test. Pritikin was born near the Hanford facility and lived there for ten years. Her in utero and childhood exposure to Hanford's hazardous substances damaged her thyroid gland and endocrine system. The court agreed that Pritikin was "qualified to participate in ATSDR's medical monitoring program."[7] The court recognized that Pritikin's inability to receive the medical screening proscribed by the Hanford monitoring program was a "cognizable injury."[8]
However, the Ninth Circuit found that Pritikin failed to satisfy the latter two requirements for constitutional standing. With respect to causation, Pritikin alleged that DOE did not take the necessary steps to "eliminate or substantially mitigate the significant risk to human health"[9] because DOE had an affirmative duty to provide the necessary medical monitoring funds to ATSDR. The court rejected Pritikin's reasoning, relying on Simon v. Eastern Kentucky Welfare Rights Organization,[10] Duquesne Light Co. v. EPA,[11] and Area Transportation, Inc. v. Ettinger[12] to determine that Pritikin's injuries were caused by the independent action of a third party. The court suggested that ATSDR was the appropriate defendant for Pritikin's suit because ATSDR is the "party with the statutory power and duty to act."[13] The court also noted that ATSDR is not required to wait for DOE funding before acting because ATSDR can seek alternative funds. The court found that Pritikin's claim that ATSDR could not conduct medical monitoring without DOE funding was "highly speculative and dependent on uncertain actions by [ATDSR]"[14] and not directly traceable to DOE inaction.
With respect to the requirement of redressability, the Ninth Circuit also found Pritikin's claim deficient. The court specifically addressed the issue of whether requiring DOE to fund the ATSDR medical monitoring program would result in its implementation. In its analysis, the court returned to Defenders to assess Pritikin's ability to demonstrate redressability. In Defenders, the Supreme Court determined that because other federal agencies were not bound by the Secretary's regulation, compelling the Secretary of the Interior to act would not force those agencies to engage in consultation.[15] Therefore, the plaintiffs who challenged the Secretary's failure to act lacked standing. Pritikin distinguished her case from Defenders by noting that unlike the agencies in Defenders, ATSDR was required by statute to act once it found a "significant increased risk of adverse health effects,"[16] and that funding by DOE would force implementation of the medical monitoring program. The Ninth Circuit rejected Pritikin's characterization, noting that even if DOE provided the necessary funding, ATSDR could still refuse to conduct the medical monitoring.
Next, Pritikin argued that Defenders was distinguishable because in her case DOE was liable for the full cost of the medical monitoring, while in Defenders the Department of the Interior was liable only for a fraction of the costs of the projects in question. The Ninth Circuit rejected this argument as well, pointing out that ATSDR is free to seek alternative sources of funding. Finally, Pritikin alleged that her claim challenged a particular agency action while the plaintiffs in Defenders challenged a general agency action. The court again dismissed her argument, noting that the specificity of the challenged action does not determine redressibility.
At the end of the opinion, the Ninth Circuit specifically noted that it was not addressing the question of "whether Pritikin would have standing if ATSDR were named as a party in this action."[17]
[1] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675 (2000).
[2] 5 U.S.C. § 702 (creating right to judicial review for person who has suffered a legal wrong because of agency action).
[3] 42 U.S.C. § 9604(i)(9) specifies that once a "significant increased risk of adverse health effects in humans from exposure to hazardous substances" is apparent, ATSDR must implement a medical monitoring program to screen the population at risk. According to this court opinion, ATSDR and DOE had entered into formal agreements to allocate funding for the ATSDR medical monitoring program. When DOE headquarters transferred its Hanford funding responsibility to a field office, that office refused to fund the ATSDR medical monitoring program.
[4] 42 U.S.C. § 9659(a)(1) (requiring that the person sued be in violation of a "requirement"); 42 U.S.C. § 9659 (a)(2) (requiring failure of agency to perform a "duty").
[7] Pritikin v. Dep't of Energy, 254 F.3d 791, 794 (9th Cir. 2001), cert. denied, 70 U.S.L.W. 3515 (2002).
[10] 426 U.S. 26 (1976). The Ninth Circuit summarized this case as follows: Indigents unsuccessfully alleged that a combined agency ruling to provide tax benefits to nonprofit hospitals offering indigents medical care only on an emergency basis forced hospitals to deny them care. The Supreme Court found the indigents' claim to be too "speculative" because there was no evidence that the ruling issued by the agencies had forced hospitals to deny indigents medical care. Therefore, the indigents lacked standing. Pritikin, 254 F.3d at 798.
[11] 166 F.3d 609 (3d Cir. 1999). The Ninth Circuit summarized this case as follows: A utility company unsuccessfully challenged EPA's approval of a state's implementation of the Clean Air Act because the state's implementation led to a loss of emission reduction credits. The Third Circuit found the utility company lacked standing because EPA did not have control over how the state had defined its implementation plan. Pritikin, 254 F.3d at 798.
[12] 219 F.3d 671 (7th Cir. 2000). The Ninth Circuit summarized this case as follows: A school bus service unsuccessfully challenged an agency's decision not to force a rival bus service to disgorge federal grants illegally received on the basis that the funds would give the rival bus service a competitive advantage. The Seventh Circuit found that it was too speculative to find a causal connection between the "less harsh sanctions" and the "competitive injury" alleged. Pritikin, 254 F.3d at 799.
