to allege a cognizable injury-in-fact logically varies with the severity of the probable harm. See Mountain States Legal Found., 92 F.3d at 1234 (stating that "[t]he more drastic the injury that government action makes more likely, the lesser the increment in probability necessary to establish standing"). In this case, Baur alleges that downed cattle may transmit vCJD, a deadly disease with no known cure or treatment. Thus, even a moderate increase in the risk of disease may be sufficient to confer standing.

Moreover, there are two critical factors that weigh in favor of concluding that standing exists in this case: (1) the fact that government studies and statements confirm several of Baur's key allegations, see Central Delta Water Agency, 306 F.3d at 950 (concluding that plaintiffs successfully alleged a credible threat of future injury based, in part, on the defendant agency's own estimate that salinity standards would be violated under its proposed operational plan), and (2) that Baur's alleged risk of harm arises from an established government policy. Cf. 31 Foster Children v. Bush, 329 F.3d 1255, 1265-66 (11th Cir.) (recognizing that "when the threatened acts that will cause injury are authorized or part of a[n] [established government] policy, it is significantly more likely that the injury will occur"), cert. denied sub nom. Reggie v. Bush, --- U.S. ----, 124 S.Ct. 483, --- L.Ed.2d ---- (2003); Deshawn E. v. Safir, 156 F.3d 340, 344-45 (2d Cir.1998) (concluding that there was an increased likelihood of injury where the challenged interrogation methods were authorized by "officially endorsed policies").

(1) Government Confirmation

Based on Baur's complaint and the accompanying materials submitted by the parties, we believe that Baur has successfully alleged a credible threat of harm from downed cattle". Significantly, the USDA itself as well as other government agencies have recognized that downed cattle are especially susceptible to BSE infection. See, e.g., Food Safety and Inspection Service, Current Thinking on Measures that Could be Implemented to Minimize Human Exposure to Materials that Could Potentially Contain the Bovine Spongiform Encephalopathy Agent (2002), available at http://

"Some of the materials submitted by the parties post-date Baur's complaint. Although a plaintiff's standing is "assessed as of the time the lawsuit is brought," Comer v. Cisneros, 37 F.3d 775, 787 (2d Cir.1994), post-filing events may confirm that a plaintiff's fear of future harm is reasonable. See, e.g.. Hargrave, Vermont Prot. & Advocacy, Inc. v. Vermont, 340 F.3d 27, 34 (2d Cir.2003).

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www.fsis.usda.gov/OA/topics/BSE_thinking.htm (hereinafter "FSIS Think Paper") (acknowledging that downed cattle are among the cattle most likely to be infected with BSE); Risk Reduction Strategies for Potential BSE Pathways Involving Downer Cattle and Dead Stock of Cattle and Other Species, 68 Fed.Reg. 2703, 2703-04 (Jan. 21, 2003) (hereinafter "USDA Proposed Rulemaking") (noting that surveillance data from Europe indicates that BSE is present in a higher percentage in nonambulatory livestock and recognizing that "[b]y their nature, downer animals and dead stock include many animals dead or dying from communicable diseases [and] ... [t]herefore represent a significant pathway for spread of disease if they are not handled or disposed of with appropriate safeguards")12.

The USDA acknowledges that since BSE was first detected in the United Kingdom in 1986, the disease has spread to over twenty-three countries and that presently over 180,000 cases of BSE have been detected worldwide. In addition, over one hundred people have died after contracting vCJD, and some experts predict that the mortality rates from vCJD could exceed one hundred thousand in the UK alone. In response to this threat, the USDA has imposed various import controls and adopted a feed ban prohibiting the use of most animal-derived proteins in cattle feed. The USDA has also adopted a surveillance program which "consists primarily of collecting and analyzing brain samples from adult cattle with neurological symptoms and adult animals that were non-ambulatory at slaughter." Because FSIS has determined that downed animals are at particular risk for neurological illnesses such as BSE, it has focused its testing efforts on downed cattle which currently account for over 90% of the animals tested in the federal BSE surveillance program.

Pointing to these regulatory safeguards as well as the results of a study by the Harvard Center for Risk Analysis, see United States Department of Agriculture, Evaluation of the Potential for Bovine Spongiform Encephopathy in the United States (2001), available at, http:// www.aphis.usda.gov/lpa/issues/bse/bse-riskassmt.html (hereinafter "Harvard Study"), defendants argue that there is no evidence that BSE is currently

12

Prior to argument, we asked the parties to submit letter-briefs addressing the potential impact of the proposed rulemaking on Baur's standing and related jurisdictional issues. See City of Charleston v. A Fisherman's Best, Inc., 310 F.3d 155, 172 (4th Cir.2002) (acknowledging that the court of appeals may take judicial notice of a proposed rule published in the Federal Register even if the proposed rule was not called to the attention of the trial court).

present in the United States or is ever likely to enter this country. The Harvard Study concluded that the United States "is highly resistant to any introduction of BSE or a similar disease," and that given current regulations, it would be "extremely unlikely" that BSE would become established even if the disease were to enter this country. Id. at I. While the Harvard Study may ultimately be persuasive, Baur has not yet been afforded an opportunity to dispute its results. Baur alleges that a form of BSE may already be present in the United States and that current inspection procedures may fail to detect cases of BSE-infection in downed cattle, an allegation which receives some support from government reports. For example, FSIS has previously acknowledged that "the typical clinical signs associated with BSE cannot always be observed in downer cattle infected with BSE. Thus, if BSE were present in the U.S., downer cattle infected with BSE could potentially be offered for slaughter and, if the clinical signs of the disease were not detected, pass ante-mortem inspection. These cattle could then be slaughtered for human food." FSIS Think Paper at 9; see also USDA Proposed Rulemaking at 2706 (noting that "because the signs of BSE often cannot be differentiated from the signs of many other diseases and conditions affecting downer cattle," BSE- infected animals may pass inspection and be offered for human consumption). Moreover, a January 2002 report by the General Accounting Office may call the Harvard Study into doubt by raising concerns about the effectiveness of current federal BSE prevention and detection efforts. See United States General Accounting Office, Rep. No. GAO-02-183, Mad Cow Disease: Improvements in the Animal Feed Ban and Other Regulatory Areas Would Strengthen U.S. Prevention Efforts (2002) (hereinafter "GAO Report") (noting that "[w]hile BSE has not been found in the United States, federal actions do not sufficiently ensure that all BSE-infected animals or products are kept out or that if BSE were found, it would be detected promptly and not spread to other cattle through animal feed or enter the human food supply").

Critically, while it is undisputed that BSE has not been detected in the United States despite over ten years of government surveillance, the significance of this fact in evaluating the present risk from the disease is vigorously contested by the parties. Cf. Central Delta Water Agency, 306 F.3d at 950 (noting that "a standing determination should not be based only on statistical probabilities if other specific circumstances render the threat of injury more or less likely than the statistics might otherwise suggest"). In support of his claim, Baur has pointed to the inherent limitations in current BSE testing capabilities, suggesting that current screening procedures may fail

62 Agric. Dec. 524

to detect current cases of BSE among downed cattle. Indeed, FSIS has itself noted that there are no reliable tests for detecting BSE in a live animal and that the:

[A]vailable post mortem diagnostic tests can only indicate that cattle have the disease two to three months prior to the onset of clinical disease or after the onset of clinical disease. Thus, given the limitations of the diagnostics available today, certain tissues of cattle infected with BSE may contain the BSE agent before a diagnostic test could indicate that the animal has BSE ... [with the result that] exempting cattle that have tested negative for BSE ... would not provide the same level of protection against potential human exposure to the BSE agent as would removing those materials for use as, or in the production of, human food13.

FSIS Think Paper at 10.

In light of these questions over the presence of BSE in the United States and the adequacy of current testing and detection abilities, we do not agree that Baur's standing rests solely on his ability to allege that BSE has been found in the United States. Significantly, government reports confirm some of the risk factors that Baur has cited, and government agencies have already taken preemptive steps to minimize human exposure to BSE without waiting for definitive evidence that BSE has entered the country, strongly suggesting that they view the potential health risks from BSE as both serious and imminent. See, e.g., FSIS Think Paper at 1 (noting that "the FSIS is considering implementing a number of measures to minimize human exposure to materials that could potentially contain" BSE); GAO Report at 28 (stating that the FDA's TSE Advisory Committee has recommended that the "FDA consider taking regulatory action to ban brains and other central nervous system tissue from human food because of the potential risk of exposure to BSE-infected tissue").

(2) Risk Attributable to a Specific Government Policy

In addition, the risk of disease transmission which Baur alleges arises directly

13

Development of such diagnostic testing has been hampered by our "limited scientific understanding of BSE and other TSEs, including when during the incubation period infectivity appears,

what mechanism causes infection, and whether infectivity is ever present in blood." GAO Report at

from the USDA's regulatory policy of permitting the use of downed cattle for human consumption. In concluding that "Baur's harm is more appropriately classified as hypothetical rather than imminent," the District Court relied on City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) and Northwest Airlines, Inc. v. Fed. Aviation Admin., 795 F.2d 195 (D.C.Cir.1986). However, in both Lyons and Northwest Airlines the occurrence of the alleged future injury rested on the independent actions of third-parties not before the court, rendering the asserted injury too speculative for standing purposes. See Lyons, 461 U.S. at 106, 103 S.Ct. 1660 (to find a credible threat of future harm, the Court would have to assume that police officers would again subject plaintiff to a chokehold during the course of routine traffic stop without any justifiable provocation)14; Northwest Airlines, 795 F.2d at 201 (concluding that the alleged safety risk caused by the FAA's recertification of a airplane pilot, previously suspended for flying while intoxicated, was too speculative to support standing where there was no allegation that any other airline had hired the suspended pilot and no indication that the pilot would ever fly in the same areas as the plaintiff airline).

While the dissent argues that the standing inquiry must be guided by Lyons, we do not believe that Lyons controls, as this case is not solely about future injury. Reading the complaint in Baur's favor, Baur has alleged that: (1) a form of BSE may already be present in the United States, (2) available testing methods do not adequately detect BSE in downed cattle, and (3) under the USDA's current regulations, infected beef from downed cattle can enter the food stream. If Baur's allegations are to be credited, as they must be at the pleading stage, then Baur faces a present, immediate risk of exposure to BSE as a consumer of beef products--not a future risk that awaits intervening events. This present exposure to a credible threat of harm constitutes the relevant injury in fact for Article III purposes. Unlike in Lyons, or other similar Supreme Court cases where standing was found wanting because the

14

"Notably, in Lyons, the Supreme Court specifically emphasized that there was no official policy authorizing the use of chokeholds without prior provocation, suggesting that if the plaintiff could make such an "incredible assertion" he could potentially establish standing. Lyons, 461 U.S. at 105-06, 103 S.Ct. 1660. Thus, while the City of Los Angeles was a defendant in the action, the risk of future injury for Lyons himself was solely contingent on "having an encounter with police wherein police would administer an allegedly illegal 'chokehol[d].'" Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (quoting Lyons, 461 U.S. at 105, 103 S.Ct. 1660) (alteration in the original).