We dismissed the Natural Resources Defense Council's petition for judicial review for lack of standing. Natural Res. Def. Council v. EPA 440 F.3d 476, 477-78 (D.C. Cir. 2006) ( "NRDC I"). In their respective petition for and opposition to rehearing, NRDC and EPA offered new information that has led us to change our view of the standing issue.

Baur 's approach to increased-risk-of-harm cases is not without controversy. See Va. State Corp., 468 F.3d at 848 (noting the conflict among the circuits about what increase in risk must be shown to support standing); NRDC v. EPA (NRDC I ), 440 F.3d 476, 484 (D.C.Cir.2006), vacated by rh'g en banc, NRDC II, 464 F.3d 1 (noting the potential “expansiveness” of Baur 's reasoning). However, we need not resolve any controversy here. Although Baur makes passing reference to “a moderate increase in the risk of disease,” id. at 637, the Second Circuit's reasoning focused on the probability of the plaintiff suffering harm, see id.; see also NRDC I, 440 F.3d at 483 (describing Baur in the context of increased probability of harm).

This Court has also recognized in the medical context that a risk of injury in the future can be grounds for standing. See Sutton v. St. Jude S.C., Inc., 419 F.3d 568, 573-74 (6th Cir. 2005) (finding standing based on an increased risk of harm requiring medical monitoring); but see Natural Resources Def. Council v. EPA, 440 F.3d 476 (D.C. Cir. 2006). In the voting context, this Court and others have recognized that voters can have standing based on an increased risk that their votes will be improperly discounted.

As noted by the D.C. Circuit, "[s]ome injuries fit easily within or without the common definitions of `actual' or `imminent.' Others do not. Among those which fit least well are purely probabilistic injuries." Natural Resources Defense Council v. E.P.A., 440 F.3d 476, 483 (D.C. Cir. 2006) (declining to find standing where NRDC members alleged a greater chance of contracting skin cancer, cataracts, and other ailments under contested agency rule). The Second Circuit has "not decide[d] as a matter of law whether enhanced risk generally qualifies as sufficient injury to confer standing," Baur v. Veneman, 352 F.3d 625, 634 (2d Cir. 2003) (holding that "in the specific context of food and drug safety suits, exposure to potentially harmful products" is sufficient to confer standing), but the "potential expansiveness" of adopting such a doctrine was noted in Baur and has been criticized by other courts.

The present case arguably falls at the outer limits of injuries that a plaintiff may allege for Article III standing. See Natural Resources Defense Council v. EPA, 440 F.3d 476, 484 (D.C. Cir. 2006) (finding that plaintiff must show that the increase in risk of harm exceeds a certain threshold, or else the requirement of imminent injury would be rendered meaningless). The Baur court itself acknowledged "the potential expansiveness of recognizing exposure to enhanced risk as injury-in-fact," but reasoned that the doctrines of prudential standing, mootness, and ripeness would limit the number of cases that could be brought.

I am aware of the decision from another circuit asserting that the probability of a person being harmed by ozone depletion is so remote that it cannot support standing. Natural Resources Defense Council v. Environmental Protection Agency, 440 F.3d 476 (D.C. Cir. 2006). I am not persuaded by that decision (nor, given the present procedural posture, could I even consider the evidence that court found persuasive).

I am aware of the decision from another circuit asserting that the probability of a person being harmed by ozone depletion is so remote that it cannot support standing. Natural Resources Defense Council v. Environmental Protection Agency, 440 F.3d 476 (D.C. Cir. 2006). I am not persuaded by that decision (nor, given the present procedural posture, could I even consider the evidence that court found persuasive).