iLaw Dictionary
California
Law Dictionary
 Standing

Standing

Standing is a judicially-created doctrine -- "an essential
and unchanging part of the case-or-controversy requirement
of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). "No principle is more fundamental to the judiciary's
proper role in our system of government than the constitutional
limitation of federal-court jurisdiction to actual casesor controversies.
" Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976).
Standing, unlike other jurisdictional doctrines, " `focuses on the party
seeking to get his complaint before a federal court and not on the issues
he wishes to have adjudicated.' " Id. at 38 (quoting Flast v. Cohen, 392
U.S. 83,99 (1968)). To demonstrate standing, a plaintiff must (1)
"have suffered an `injury in fact' -- an invasion of a legally
protected interest which is (a) concrete and particularized and
(b) `actual or imminent, not `conjectural or hypothetical;' "
(2) "there must be a causal connection between the injury and
the conduct complained of -- the injury has to be`fairly . . .
trace[able] to the challenged action of the defendant, and not
. . . th[e] result [of] the independent action of some third party
not before the court;' " and (3) "it must be `likely' as opposed
to merely `speculative,' that the injury will be`redressed by
a favorable decision.' " Defenders of Wildlife, 504 U.S. at
560-61 (citations omitted) (alterations in original).

TRISHA T. PRITIKIN,

Plaintiff-Appellant,

v.

No. 99-35581

DEPARTMENT OF ENERGY, JOHN D.

D.C. No.

WAGONER, in his official capacity

CV-98-3049-EFS

as manager of DOE Richland

Operations, and SPENCER OPINION

ABRAHAM,1 in his official capacity

as Secretary of the US DOE,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Washington

Edward F. Shea, District Judge, Presiding

Argued and Submitted

February 15, 2001--Seattle, Washington

Filed June 13, 2001

Before: Stephen Reinhardt, Kim McLane Wardlaw, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Wardlaw

_________________________________________________________________

1 Spencer Abraham is substituted for his predecessor, Frederico Pena, as

Secretary of the Department of Energy. Fed. R. App. P. 43(c)(2).

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7382

7383

Tom H. Foulds, Tom H. Foulds & Associated Counsel, Seattle,

Washington, for the plaintiff-appellant.

David C. Shilton (argued), Department of Justice, Washington,

D.C., for the defendants-appellees.

Greer S. Goldman (on brief), Department of Justice Environment

and Natural Resources Division, Washington, D.C., for

the defendants-appellees.

_________________________________________________________________

7384

WARDLAW, Circuit Judge:

Trisha T. Pritikin appeals the district court's entry of summary

judgment in favor of the Department of Energy

("DOE"). Pritikin sued DOE to compel it to budget for the

medical monitoring program that the Agency for Toxic Substances

and Disease Registry ("ATSDR") was required to

institute at the Hanford Nuclear Reservation ("Hanford"). The

district court concluded that it lacked subject matter jurisdiction

on two grounds: (1) Pritikin failed to meet the requirements

for instituting a citizen's suit under the Comprehensive

Environmental Response, Compensation, and Liability Act,

42 U.S.C. § 9659(a)(1) and (2) ("CERCLA"); and (2) there

was no final agency action to challenge under the Administrative

Procedure Act, 5 U.S.C. § 701, et seq. ("APA"). We

agree that we lack jurisdiction to entertain this action, but rely

on a third ground: Pritikin lacks constitutional standing to

compel DOE to make budget requests and to reprogram existing

funds for the medical monitoring program because she

cannot show that its failure to do so is the cause of the injury

she seeks to redress or that requiring DOE to do so will result

in ATSDR's implementation of the medical monitoring program.

We have jurisdiction pursuant to 28 U.S.C.§ 1291, and

we affirm.

I. Factual Background

The Hanford Nuclear Reservation in Richland, Washington,

is owned by DOE and was established in 1943 as part of

the Manhattan Project to produce plutonium for nuclear weapons.

For three decades, radioactive, toxic and hazardous substances

were released from Hanford as by-products of the

plutonium production process. From 1944 to 1957, it is estimated

that 700,000 to over 1.1 million curies of radioactive

iodine-131 were emitted into the air through exhaust stacks,

and more that 22 million curies of radioactive material were

7385

released into the Columbia River during the cooling process.

These releases exposed thousands of persons living and working

downwind and downstream from the site to radioactive

iodine. The most damaging exposure to radioactive iodine-

131 occurred through the consumption of contaminated milk,

produced by cows grazing in contaminated fields. Human

exposure to radioactive iodine-131 often results in thyroid disease,

as the toxic chemical is usually stored in the thyroid

gland.

In 1989, the Environmental Protection Agency ("EPA")

placed the Hanford site on its National Priorities List

("NPL"), which ranks the most serious hazardous waste sites

in the United States, and since that time, Hanford has been the

subject of an environmental cleanup. To expedite the cleanup,

ATSDR and DOE entered into a Memorandum of Understanding

("MOU") and a series of Interagency Agreements

("IAGs") to delineate the responsibilities of the respective

agencies as well as to provide funding for the ATSDR's statutorily

required health assessment activities at the Hanford site

for fiscal years ("FY") 1991-1996. In 1994, as part of a negotiation

during the pendency of the appeal of Hanford Downwinders

Coalition Inc. v. Dowdle, 841 F. Supp. 1050, aff'd,

review of the health effects of hazardous substances at Hanford.

In 1997, ATSDR concluded that there was "a significant

increased risk of adverse health effects in humans from exposure

to hazardous substances" due to toxic waste exposure.

Once this "significant risk" determination was made, 42

_________________________________________________________________

2 The Hanford Downwinders Coalition sought injunctive relief requiring

ATSDR to initiate a health surveillance program (also known as a medical

monitoring program) for people exposed to the toxic substances emitted

from Hanford. On appeal, we concluded that although ATSDR had a mandatory

duty under 42 U.S.C. § 9604(i)(9) to implement a medical monitoring

program once it determined that "a significant increased risk of

adverse health effects" existed at Hanford, we lacked jurisdiction to order

such a program because the requisite determination had not yet been

made. Dowdle, 71 F.3d at 1474-75.

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U.S.C. § 9604(i)(9) required ATSDR to implement a medical

monitoring program to screen the population for those diseases

for which the risk had been significantly increased and

to refer affected individuals to treatment. 42 U.S.C.

§ 9604(i)(9).

In February of that same year, DOE transferred the Hanford

funding responsibility from its headquarters to a field office

10, 1997, John Wagoner, manager of the DOE-Richland

Operations Office, informed ATSDR that DOE could not"accept

the funding burden specified in [the August 11, 1997]

accept "unfunded mandates" from DOE Headquarters and its

belief that it is "unacceptable for DOE to fund non-

Environmental Management activities with Environmental

Management funds," Wagoner specifically requested that

ATSDR help DOE "engage the Administration on the issue of

funding." As an interim measure, Wagoner requested that

ATSDR identify the minimum funding levels it needed to

begin work in FY 1998. ATSDR and DOE-Richland never

reached an agreement, and as a result, no IAGs were established

after FY 1996. In early March, Pritikin served her

Notice of Intent to Sue, dated January 13, 1998. Approximately

one week later, on March 19, 1998, DOE announced

its intent to transfer $5 million from another appropriation

_________________________________________________________________

3 This transfer was announced in a memorandum from Alvin L. Alm,

DOE Assistant Secretary for Environmental Management, on February 27,

1997. Because "[f]unding this compliance program from Headquarters

[was] no longer possible given the congressional budget decision with

respect to the Program Direction Account[,] " the program was "moved

from Headquarters to the field for funding and execution." Attached to the

memorandum was a model IAG, but it is unclear from the record whether

that model IAG was the same draft IAG submitted to the Richland field

office by ATSDR in August 1997.

4 The 1997 draft IAG was proposed by ATSDR after Richland had

assumed responsibility for funding the Hanford program. All previous

IAGs were entered into between ATSDR and DOE Headquarters.

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toward funding the medical monitoring program. DOE did not

include funding for ATSDR's medical monitoring program in

its budget proposal for FY 1999, and ATSDR has yet to begin

the statutorily required medical monitoring program.

Trisha T. Pritikin was born in Richland, Washington, near

the Hanford facility, in 1950, and she lived there for the first

ten years of her life. As a result of in utero and childhood

exposure, Pritikin's thyroid gland and endocrine system were

severely damaged. Thus, she is qualified to participate in

ATSDR's medical monitoring program. She initiated this suit

to force ATSDR to implement the statutorily required program.

Pritikin believes that if DOE were to first request and

then provide the funding, ATSDR would begin the medical

monitoring program, and her medical needs would then be

addressed.

II. Statutory History

To understand why Pritikin does not have standing to

bring this cause of action against DOE, it is necessary to

particular the responsibilities it imposes on the different agencies

involved in the clean-up of a toxic waste site. CERCLA

was enacted to " `protect and preserve public health and the

environment' by facilitating the expeditious and efficient

cleanup of hazardous waste sites." Dowdle, 71 F.3d at 1473-

74 (quoting Wilshire Westwood Assoc. v. Atlantic Richfield

Corp., 881 F.2d 801, 804 (9th Cir. 1989)). CERCLA establishes

a procedure to facilitate hazardous waste site clean-ups

and insures that whoever undertakes the clean-up can recover

those costs from potentially responsible parties ("PRPs"). 42

U.S.C. §§ 9604, 9606, 9607, and 9620. Here, DOE qualifies

as a PRP under § 9607(a)(4) because, as the owner of the

Hanford site, it accepted hazardous substances for transport.

_________________________________________________________________

5 42 U.S.C. §§ 9601-9675, as amended by the Superfund Amendments

and Reauthorization Act of 1986 (SARA, Pub. L. No. 99-499, 100 Stat.

1613) (1986).

7388

The 1986 Superfund Amendments and Reauthorization

Act ("SARA") established ATSDR within the Department of

Health and Human Services to assess and study the health

effects of hazardous substances and to institute medical programs

when needed. 42 U.S.C. §§ 9604(i). The PRPs are liable

for, among other things, "the costs of any health

assessment or health effects study carried out under section

9604(i)," and liability attaches even if the PRP was unaware

of the toxic waste at the time in question. 42 U.S.C.

§ 9607(a)(4)(D). Thus, DOE is liable for the cost of any medical

monitoring program that ATSDR "carried out " at Hanford.

CERCLA also allows Superfund money to be used to

finance the clean-up and provides a cause of action for its

reimbursement from PRPs. 42 U.S.C. §§ 9607(a) and 9611(a).

Section 9620 waives the federal government's sovereign

immunity and makes those federal departments and agencies

which qualify as PRPs subject to § 9607 liability. Section

9620 also requires the head of the each responsible federal

department to (1) enter into an IAG with the EPA administrator

to expedite the completion of all necessary remedial

action; (2) submit a review of alternative agency funding for

the remedial action in its annual budget to Congress; and (3)

submit an annual progress report. 42 U.S.C. § 9620.

III. Prior Proceedings

Pritikin brought this action against DOE pursuant to the

Citizen Suit provisions of CERCLA, 42 U.S.C. § 9659(a)(1)

and (2), and the APA, 5 U.S.C. § 701, et seq. She seeks a declaration

that DOE is liable for funding ATSDR's medical

monitoring program and an injunction compelling DOE to (i)

include in its budget requests the amounts necessary to fully

fund the Hanford medical monitoring program and disease

registry program for FY 1999 and beyond; (ii) reprogram

budget items committed to it for other programs or by special

appropriation in its FY 1998 budget to cover the full amounts

planned by ATSDR for its Hanford program; and (iii) to comply

with CERCLA reporting requirements and disclose to

7389

Congress its failures to fund ATSDR's mandatory programs

and to reach IAGS with ATSDR. DOE moved for dismissal

pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, for

summary judgment for lack of subject matter jurisdiction.

Neither party raised the issue of standing in the district

court. As a result, the district court granted DOE's motion for

summary judgment without addressing whether Pritikin had

constitutional standing to initiate her suit against DOE. It

_________________________________________________________________

6 42 U.S.C. § 9659 provides in relevant part:

(a) Authority to bring civil suits

any person may commence a civil action on his own behalf -

(1) against any person (including the United States and any

other governmental instrumentality or agency, to the extent permitted

by the eleventh amendment to the Constitution) who is

alleged to be in violation of any standard, regulation, condition,

requirement, or order which has become effective pursuant to this

chapter (including any provision of an agreement under section

9620 of this title, relating to Federal facilities); or

(2) against the President or any other officer of the United

States (including the Administrator of the Environmental Protection

Agency and the administrator of the ATSDR) where there is

alleged a failure of the President or of such other officer to perform

any act or duty under this chapter, including an act or duty

under section 9620 of this title (relating to Federal facilities),

which is not discretionary with the President or such other officer.

. . .

(c) Relief

The district court shall have jurisdiction in actions brought

under subsection (a)(1) of this section to enforce the standard,

regulation, condition, requirement, or order concerned (including

any provision of an agreement under section 9620 of this title),

to order such action as may be necessary to correct the violation,

and to impose any civil penalty provided for the violation. The

district court shall have jurisdiction in actions brought under subsection

(a)(2) of this section to order the President or other officer

to perform the act or duty concerned.

7390

could not establish a § 9659(a)(1) "requirement" or a

§ 9659(a)(2) "duty" which DOE had either violated or failed

to perform. Alternatively, the district court determined that it

did not have subject matter jurisdiction under the APA

because there was neither "final agency action " nor a "definitive

statement of an agency's position" for which judicial

IV. Standing

We review an order granting summary judgment de novo,

Auvil v. CBS "Sixty Minutes," 67 F.3d 816, 819 (9th Cir.

1995), and we may affirm the district court on any ground

supported by the record, Franklin v. Terr, 201 F.3d 1098,

1100 n.2 (9th Cir. 2000). Although the issue of standing was

not raised in the district court, because it is one of jurisdiction,

we may consider it for the first time on appeal. FW/PBS, Inc.

v. City of Dallas, 493 U.S. 215, 230-31 (1990); Alameda

Newspapers, Inc. v. City of Oakland, 95 F.3d 1406, 1411 n.5

(9th Cir. 1996).

Standing is a judicially-created doctrine -- "an essential

and unchanging part of the case-or-controversy requirement

of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992). "No principle is more fundamental to the judiciary's

proper role in our system of government than the consti-

_________________________________________________________________

7 5 U.S.C. § 704 provides:

Agency action made reviewable by statute and final agency

action for which there is no other adequate remedy in a court are

subject to judicial review. A preliminary, procedural, or intermediate

agency action or ruling not directly reviewable is subject to

review on the review of the final agency action. Except as otherwise

expressly required by statute, agency action otherwise final

is final for the purposes of this section whether or not there has

been presented or determined an application for a declaratory

order, for any form of reconsideration, or, unless the agency otherwise

requires by rule and provides that the action meanwhile is

inoperative, for an appeal to superior agency authority.

7391

_________________________________________________________________

tutional limitation of federal-court jurisdiction to actual cases

or controversies." Simon v. Eastern Ky. Welfare Rights Org.,

426 U.S. 26, 37 (1976). Standing, unlike other jurisdictional

doctrines, " `focuses on the party seeking to get his complaint

before a federal court and not on the issues he wishes to have

adjudicated.' " Id. at 38 (quoting Flast v. Cohen, 392 U.S. 83,

99 (1968)). To demonstrate standing, a plaintiff must (1)

"have suffered an `injury in fact' -- an invasion of a legally

protected interest which is (a) concrete and particularized and

(b) `actual or imminent, not `conjectural or hypothetical;' "

(2) "there must be a causal connection between the injury and

the conduct complained of -- the injury has to be`fairly . . .

trace[able] to the challenged action of the defendant, and not

. . . th[e] result [of] the independent action of some third party

not before the court;' " and (3) "it must be `likely' as opposed

to merely `speculative,' that the injury will be`redressed by

a favorable decision.' " Defenders of Wildlife, 504 U.S. at

560-61 (citations omitted) (alterations in original).

DOE does not challenge the first prong of the standing

requirements and rightfully so -- Pritikin's inability to

receive medical screening due to ATSDR's failure to implement

the Hanford medical monitoring program establishes a

cognizable injury. DOE argues, however, that because Pritikin

fails to show how including funding for ATSDR's medical

monitoring program in its budget request would result in the

program actually being carried out, she has demonstrated neither

causation nor redressability, and therefore, she lacks

standing. We agree that Pritikin has failed to demonstrate the

second and third prongs of the constitutional standing requirements

and that we therefore lack jurisdiction over her claims.

A. Causation

To meet the causation requirement, Pritikin's injury --

her inability to receive medical screening -- must be fairly

traceable to DOE's failure to include funding for the Hanford

medical monitoring program in its budget requests. It cannot

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be " `the result of the independent action of some third party

not before the court.' " Defenders of Wildlife, 504 U.S. at 560

(quoting Simon, 426 U.S. at 41-42) (alterations omitted). By

claiming that DOE's failure "to fulfill its obligation to fund

the Medical Monitoring Program and the Exposure Subregistry

Program" has deprived her of needed medical surveillance,

Pritikin's claim presupposes that a budget request for

funding would necessarily result in the funding and that if the

funding were provided the program would necessarily begin.

Thus, even at first blush, Pritikin's standing appears weak, as

her theory omits a necessary step in the causation chain -- the

independent decision of ATSDR, a third party not before the

court, to begin the medical monitoring program.

Pritikin argues that by failing to include the medical monitoring

program in its budget request, DOE did not"take such

steps as may be necessary to . . . eliminate or substantially

mitigate the significant risk to human health." 42 U.S.C.

an affirmative duty on DOE to provide ATSDR with the funding

it needs to initiate the medical monitoring program before

any costs have been incurred. Although this "duty " is without

support in the text of CERCLA, Pritikin argues that her

inability to obtain medical screening is "directly traceable" to

DOE's failure to perform it. We disagree.

In Simon, indigents and organizations of indigents claimed

the Secretary of the Treasury and the Commissioner of the

Internal Revenue Service issued Revenue Ruling 69-545,

which extended tax benefits to nonprofit hospitals that offered

treatment to indigents on an emergency basis only, in violation

of the Internal Revenue Code of 1954 and the APA. They

argued that the ruling encouraged hospitals to deny service to

_________________________________________________________________

8 42 U.S.C. 9604(i)(11) requires the President to take "such steps," but

the President delegated this responsibility to the executive department

heads and granted them the authority to carry out the functions of Section

104. Executive Order 12580 section 2(k).

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the individual indigents and members of the indigent organizations.

Simon, 426 U.S. at 33. The Supreme Court disagreed,

concluding that it was pure speculation as to "whether the

denials of service specified in the complaint fairly can be

traced to petitioners' `encouragement' or instead result from

decisions made by the hospitals without regard to the tax

implications." Id. at 42-43. The Court found it "equally speculative

whether the desired exercise of the court's remedial

powers in this suit would result in the availability to [the indigents]

of such services." Id. at 43. Because there was no evidence

suggesting that the issuance of the ruling caused the

hospitals to deny indigents treatment, id. at 28, and because

"unadorned speculation will not suffice to invoke the federal

judicial power[,]" the Court held that respondents lacked

standing, id. at 44.

The need to speculate as to the causal link between the

actions of the party being sued and the alleged injury arose

because, like Pritikin, the Simon plaintiffs sued the wrong

party: rather than suing the hospitals refusing indigents care,

they sued the people responsible for promulgating the revenue

ruling. Although the plaintiffs successfully alleged an injury,

the Court reasoned an "injury at the hands of a hospital is

insufficient by itself to establish a case or controversy in the

context of this suit, for no hospital is a defendant." Id. at 41.

Here, Pritikin has not sued a party with the clear ability to act.

Rather than suing the ATSDR, the party with the statutory

power and duty to act, Pritikin has sued DOE, the party liable

for "the costs of any health assessment or health effects study

carried out . . . ." 42 U.S.C. § 9607(a)(4)(D). Although she

has sufficiently alleged that she was injured by the failure to

implement a medical monitoring program at Hanford,"[an]

injury at the hands of [ATSDR] is insufficient by itself to

establish a case or controversy in the context of this suit, for

[ATSDR] is [not] a defendant." See Simon, 426 U.S. at 41.

Similarly, in Duquesne Light Co. v. United States Environmental

Protection Agency, 166 F.3d 609 (3d Cir. 1999), the

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independent actions of a third party, not before the court, were

at issue. The Third Circuit concluded that the Duquesne Light

Company lacked standing to judicially challenge the EPA's

approval of Pennsylvania's state implementation of the Clean

Air Act. The utility company claimed that it lost emission

reduction credits (ERCs) and faced higher operation costs as

a result of EPA's approval. Duquesne, 166 F.3d at 612. The

Third Circuit held that Duquesne's injury was "manifestly the

product of the independent action of a third party -- Pennsylvania's

Department of Environmental Protection[,]" which

redefined the state implementation plan "in such a way that

Duquesne may not receive ERCs for its dormant plant. " Id. at

613. This, in turn, reduced the number of ERCs Duquesne

claimed it would have received had the less stringent requirements

of federal law been applied. Because the Clean Air Act

required the EPA to approve any state plan that met the minimum

federal requirements, which Pennsylvania's plan did,

the EPA did not have the power to change its decision or to

order Pennsylvania to relax its clean air requirements. Id.

Thus, the Third Circuit concluded that the EPA's approval of

the Pennsylvania plan was not "fairly traceable " to

Duquesne's injury. Id.

As in Duquesne, Pritikin's injury is "manifestly the

product of the independent action of a third party. " Id.

Although DOE is liable for "the costs of any health assessment

or health effects study carried out under section 9604(i)

of this title," 42 U.S.C. § 9607(a)(4)(D), ATSDR is responsible

for implementing the program once it "has determined

that there is a significant increased risk of adverse health

effects in humans from exposure to hazardous substances

based on the results of a health assessment conducted under

paragraph (6) . . . ." 42 U.S.C. § 9604(i)(9). ATSDR is not

required to wait for DOE's funding before beginning the Hanford

medical monitoring program; it can seek an alternate

source of funding. Thus, any failure to implement the medical

monitoring program lies at the hands of ATSDR.

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In a factually analogous decision, the Seventh Circuit held

that the Area Transport did not have standing to challenge the

Federal Transit Administration's (FTA) decision regarding

the sanctions imposed on Mass Transportation Administration

of Flint, Michigan (MTA) for simultaneously receiving federal

grants and providing exclusive school bus service. Area

Transp, Inc. v. Ettinger, 219 F.3d 671, 672-74 (7th Cir. 2000).

Area Transport argued that the FTA's ruling requiring MTA

to cease providing illegal school bus services if it wished to

continue receiving federal grants was too lenient, and

requested that the court both declare MTA ineligible to

receive future grants and compel FTA to order MTA to repay

the grants illegally received. Area Transport , 219 F.3d at 672.

Area Transport argued that it was injured by continued competition

with MTA, which had an unfair advantage due to its

illegal appropriation of funds. Because there was no information

in the record that once the FTA issued its cease and desist

order, MTA was still competing with Area Transport, Area

Transport could not show that imposing less harsh sanctions

would improve competition between the two. Id. at 673. In

response to Area Transport's argument that MTA would be

competing with impermissibly fattened coffers, the Seventh

Circuit observed "to the extent that such an outcome requires

not only that MTA react to the FTA's cease and desist order

by forgoing future federal grants in favor of continuing its

school bus service, but also that MTA do so successfully, this

scenario is both highly speculative and dependent on uncertain

actions by MTA, who is not before us." Id. Thus, the Seventh

Circuit held that there was no causal connection between

the FTA's imposition of less harsh sanctions and the competitive

Pritikin faces similar causation problems. She cannot

show that DOE's failure to request funding prevented ATSDR

from implementing the medical monitoring program. ATSDR

_________________________________________________________________

9 The court assumed, without deciding, that Area Transport successfully

alleged a continuing injury. Area Transport, 219 F.3d at 673.

7396

could have sought alternative funding sources, like Superfund,

to begin the monitoring program. Thus, Pritikin's argument

that ATSDR could not institute its medical monitoring

program because it did not receive funding specifically from

DOE "is both highly speculative and dependent on uncertain

actions by [ATSDR], who is not before us." See id.

B. Redressability

Many of the problems Pritikin encounters in establishing

causation also affect her ability to demonstrate that a decision

in her favor "will produce tangible, meaningful results in

the real world" -- or in other words -- to establish that her

claim is redressable. Common Cause v. Dept. of Energy, 702

F.2d 245, 254 (D.C. Cir. 1983). As demonstrated above, this

case is "one of third-party causation" -- Pritikin "seeks to

change [DOE's] behavior only as a means to alter the conduct

of a third party, not before the court, who is the direct source

of [Pritikin's] injury." See Common Cause, 702 F.2d at 251.

Thus, we must determine whether requiring DOE to include

the Hanford medical monitoring program in its budget request

will result in ATSDR's implementation of that program. We

conclude that it will not.

The redressability issues here are analogous to those presented

in Lujan v. Defenders of Wildlife, which set the standard

for establishing constitutional standing when challenging

the actions -- or inactions -- of federal agencies. In Defenders

of Wildlife, the plaintiffs sought both a declaratory judgment

that the Secretary of the Interior's regulation, which

required federal agencies to consult with him about the effect

of their actions only if they would affect endangered species

in the United States or on the high seas, was too geographically

narrow, and an order requiring such consultation for foreign

actions. Defenders of Wildlife, 504 U.S. at 559. Because

other federal agencies were not bound by the Secretary's regulation,

"the only injury in fact respondents complain of

require[d] action . . . by the individual funding agencies." Id.

7397 at 571. Ordering the Secretary of the Interior to act would not

remedy the plaintiffs' injury; thus the Court concluded that

they lacked standing. Id. at 578.Pritikin attempts to distinguish her

case from Defenders of Wildlife on three grounds. First, Pritikin argues that

ATSDR, unlike the non-party agencies involved in Defenders

of Wildlife, became statutorily bound to act once it found a

"significant increased risk of adverse health effects." Thus,

according to Pritikin, ATSDR would be required to implement

the medical monitoring program if the DOE requested

and provided funding. In advancing this argument, Pritikin

fails to consider one important fact: ATSDR is not bound by

DOE's actions or decisions. ATSDR could choose to ignore

its statutory duty and decline to implement a medical monitoring

program even after DOE included funding for the program

in its budget. Because ATSDR is not a party to this suit,

we cannot prevent this from occurring, nor could we sanction

ATSDR for statutory non-compliance if it chose not to implement

the Hanford medical monitoring program. We simply

cannot compel a nonparty in these circumstances to act, even

if it would be in conformance with a statutory duty.

Next, Pritikin argues that Defenders of Wildlife is distinguishable

through comparison of the respective economic

impacts on the non-party agency of the party agency's action

or inaction. Because DOE is fully liable for the costs of the

medical monitoring program under CERCLA, Pritikin contends

that DOE's budget request and funding will directly

affect whether the medical monitoring program is initiated.

By comparison, in Defenders of Wildlife, the Department of

the Interior only supplied a fraction of the funding for foreign

projects and therefore could not affect their outcomes by

withholding funds. In advancing this argument, however, Pritikin

overlooks an important fact: ATSDR could, for example,

pursue other sources of funding, like Superfund, and later

seek reimbursement from DOE. Such action would be fully

consistent with the statute. Although DOE's decision to

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include medical monitoring in its budget could facilitate

implementation of the program, there is nothing in the record

that indicates that its decision not to include the program in

its budget request prevented ATSDR from initiating the program

at all. Of course, because ATSDR is not a party to this

action, there is nothing in the record to indicate what effect,

if any, DOE's failure to budget for the program is having on

its implementation.

Lastly, Pritikin submits that she is challenging a particular

government decision, whereas Defenders of Wildlife involved

a challenge to a generalized level of government action.

While this may be factually true, this argument misses the

mark. Whether the government's challenged action is specific

or general does not -- without more -- demonstrate that the

requested relief will redress the alleged injury.

As in Common Cause, Pritikin has failed to show how

ordering DOE to request funding would lead to the tangible

result of a Hanford medical monitoring program when only

ATSDR has the power to actually initiate the program. In

Common Cause, Appellants sought to force DOE to publish

a final energy conservation plan for federally owned and

leased buildings pursuant to 42 U.S.C. § 6361(a)(2). DOE had

published a Preliminary Plan, but the Final Plan was delayed

by problems with individual agencies. Common Cause, 702

F.2d at 248. Appellants sought publication of the final plan to

reduce federal government energy consumption, which would

alleviate the energy shortage and lower energy prices. Id. at

249. The D.C. Circuit concluded that Appellants lacked standing

because they "utterly failed to indicate . . . how a decree

ordering publication of the Final Plan would be likely to lead

to tangible additions in federal energy conservation above and

beyond those currently being achieved under the regime of

the Preliminary Plan." Id. at 252 (italics omitted).

That DOE is bound to act pursuant to 42 U.S.C.

§ 9604(i)(11) does not meet the constitutional standing

7399 requirements. Pritikin relies on Tennessee Valley Authority v.

Endangered Species Act was violated when an agency failed

to "take such action[ ] necessary to insure" its actions did not

jeopardize an endangered species pursuant to 16 U.S.C.

§ 1536, id. at 188, to establish that DOE violated

§ 9604(i)(11) by not taking "such steps as may be necessary

to reduce such exposure and eliminate or substantially mitigate

the significant risk to human health." Even if it were a

necessary step for DOE to include a line item request for

medical monitoring in Hanford, that responsibility alone does

not provide the missing causal link between DOE's budget

request and ATSDR's ability to implement the program Pritikin

desires.

V. Conclusion

Because Pritikin has not shown that her injury was"fairly

traceable" to DOE's actions or that the relief she seeks will

remedy that injury, we hold that Pritikin lacks standing to

AFFIRMED.

_________________________________________________________________

10 TVA did not involve a standing challenge. In that case, a regional association

of biological scientists, a Tennessee conservation group, and individuals

citizens and users of the Little Tennessee Valley area sought an

injunction prohibiting "the operation of a virtually completed federal dam"

because, "pursuant to authority vested in him by Congress, the Secretary

of the Interior [ ] determined that operation of the dam would eradicate an

endangered species." TVA, 437 U.S. at 156, 161 n.10. The Court reached

the merits of the case and enjoined the completion of the dam.

11 We do not address a question not before this court: whether Pritikin

would have standing if ATSDR were named as a party in this action.

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