Post Alliance for Hippocratic Medicine standing

Question

PETA spends significant amounts of money trying to get people to voluntarily not eat meat. If the government had outlawed eating meat, people would be forced to not eat meat, and so it would not have been necessary to spend money to convince them not to. Given that the government's inaction has caused PETA considerable expense, and taking Alliance for Hippocratic Medicine v FDA as precedent, does PETA have standing to sue the government for failing to outlaw the consumption of meat?

EDIT:

AHM v FDA holds that if a group advocates a position, and incurs expenses doing so, and there is some government action that would have decreased or eliminated those expenses, then that group has standing.

One way an organization can establish standing is by identifying specific projects that [it] had to put on hold or otherwise curtail in order to respond to the [challenged action Tex. State LULAC v. Elfant, 52 F.4th 248 , 253 (5th Cir. 2022) (internal marks omitted). This is not a heightening of the Lujan standard, but an example of how to satisfy it by pointing to a non litigation-related expense. OCA,867 F.3d at 612. Plaintiffs need not identify specific projects that they haveplaced on hold or otherwise curtailed. La Unión del Pueblo Entero v.Abbott,No. 5:21-CV-0844-XR,2022 WL 3052489 , at *31 (W.D. Tex. Aug. 2,2022). Rather,this is simply the most secure foundation to establish organizational standing. 13A Charles Alan Wright & Arthur R. Miller,Federal Practice and Procedure § 3531.9.5 (3d ed. 2022). Furthermore, [a]t the pleading stage , we liberally construe allegations ofinjury. Bezet v.United States,714 Fed. Appx . 336,339 (5th Cir.2017)(quoting Little v. KPMG LLP, 575 F.3d 533,540 (5th Cir.2009)). Here, Plaintiff medical associations have standing via diversionary injury . Because of failure to require reporting of all adverse events , Plaintiffs allege FDA's actions have frustrated their ability to educate and inform their member physicians ,their patients ,and the public on the dangers of chemical abortion drugs .ECF No. 7 at 12. As a result,Plaintiffs attest they have See Lujanv . Defs. ofWildlife, 504 U.S. 555 ( 1992) . Atthehearing, Danco arguedElfant held there was no standing where organizations failed to identify specific projectsputon hold. ECF No. 136 at 125. This is incorrect. The FifthCircuit inElfantassumed withoutdeciding the plaintiffspled an injury-in- fact but heldthey did not have standingbecausethe causation and redressability elements were notmet. See 52 F.4th at 255. 12 Case 2 :22- cv- 00223- Z Document137 Filed 04/07/23 Page 13of 67 4435 diverted valuable resources away from advocacy and educational efforts to compensate for the lack of information.See ECF No. 1at 91. Such diversions expend considerable time,energy,and resources,to the detriment of other priorities and functions and impair Plaintiffs ability to carry out their educational purpose.Id at 92; N.A.A.C.P. v. City ofKyle, Tex.,626 F.3d 233, 238 (5th Cir.2010) Similarly, Plaintiffs allege their efforts to respond to actions have tak[en] them away from other priorities such as fundraising and membership recruitment and retention. ECF Nos.1-4 at 6, 1-5 at 11. Consequently, Plaintiffs have re-calibrated their outreach effortsto spend extra time and money educating their members about the dangers of chemical abortion drugs.Combined,these facts are sufficient to confer organizational standing.See OCA,867 F.3d at 612 (finding organizational standing even where the injury was not large ); Fowler, 178 F.3d at 356 (injuries in fact need not measure more than an identifiable trifle ) (internal marks omitted).

It is to this that I am referring: given the legal argument here, does it give PETA standing? I am not asking about cause of action or anything else, nor am I advocating that PETA should have standing. I am simply asking, if PETA does not have standing, why logic would distinguish it from this case.

Answer 1

There is no parallelism between the Texas decision and the proposed lawsuit. In the anti-mifepristone lawsuit, there exists a statute granting the FDA authority to regulate and review new drugs, and a petition procedure whereby citizens can state ground for the Commissioner of Food and Drugs to consider a regulatory action. There is no statutory basis on which a ban of meat-eating could be created by executive action. Congress cannot be sued for not passing a law (failure or refusal of Congress to pass a particular law is not justiciable). If, for example someone were to submit a petition to the FDA urging such a regulation, the petition would have to be denied because the FDA does not have statutory authority to issue such a regulation.

As argued here, the anti-mifepristone plaintiffs lack standing in that case, so one can expect that to be a substantial issue in the subsequent appeal.