relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff"). On the contrary, the plaintiff must establish "distinct and palpable injury to himself." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (emphasis added). The Supreme Court held eighty years ago that a plaintiff must establish "that he has sustained or is immediately in danger of sustaining some direct injury as a result of [government policy], and not merely that he suffers in some indefinite way in common with people generally." Valley Forge Christian College, 454 U.S. at 477, 102 S.Ct. 752 (quoting Commonwealth v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923)).

Baur's concern for public health is a laudable thing. But a plaintiff's desire to right what he sees as misguided public health policy has no bearing on the question of whether he has established injury in fact. See Vermont Agency of Natural Resources v. Stevens, 529 U.S. 765, 772, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) ("An interest unrelated to injury in fact is insufficient to give a plaintiff standing."). Thus, "standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy." Valley Forge Christian College, 454 U.S. at 486, 102 S.Ct. 752. A showing that the government is engaging in a policy that is wrongheaded, or even callous, "is not a permissible substitute for the showing of injury itself." Id. In short, a plaintiff who wishes to advance the public good by altering government policy should direct his efforts to the political process in particular, and to public discourse in general, for these are the realms where the public good is most directly addressed1. By contrast, the federal courts are primarily charged with providing relief for identifiable injuries suffered by parties appearing before them. Stated somewhat brusquely, a plaintiff's desire to effect reform of government policy as to an issue of public concern "does not provide a special license to roam the country in search of governmental wrongdoing and to reveal [his] discoveries in federal court. The federal courts were simply not constituted as ombudsmen of the general welfare." Id. at 487, 102 S.Ct. 752.

I acknowledge that "[a]t the pleading stage, general factual allegations of

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It bears noting in this connection that the federal government's initial efforts to regulate American meat quality were motivated in no small part by public reaction to The Jungle, Upton Sinclair's 1906 novel about Chicago's meat packing plants. See Roger Roots, "A Muckraker's Aftermath: The Jungle of Meat-Packing Regulation After a Century," 27 Wm. Mitchell L.Rev. 2413 (2001). [NOTE: This was FN1 of the dissent.- Editor]

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injury resulting from the defendant's conduct may suffice," for avoiding dismissal on the basis of a lack of standing. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. But "pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action." United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688-89, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Most especially, the Supreme Court has "consistently stressed that a plaintiff's complaint must establish that he has a 'personal stake' in the alleged dispute, and that the alleged injury suffered is particularized as to him." Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (citations and internal quotations omitted). While Baur may have demonstrated that someone will be harmed as a proximate result of the USCA practices he challenges, he certainly fails to demonstrate that he possesses any quality or characteristic which makes him particularly susceptible to such harm.

The problematic nature of Baur's assertion of injury in fact becomes immediately apparent upon reading the complaint. For all purposes relevant to the question of Baur's injury in fact, it contains nothing but the following allegations:

6. Plaintiff Michael Baur is an adult individual residing in Riverdale, New York. He is a regular consumer of meat products. Because Mr. Baur regularly eats meat, he is concerned about eating adulterated meat and about the health risks associated with meat from downed animals.

28. Mr. Baur is a regular consumer of meat products who is concerned about eating adulterated meat. Since the meat he eats can come from downed animals, each time he eats meat he is at risk of contracting a food-borne illness such as vCJD. Because of the British mad cow epidemic and the recent scientific evidence showing the link between eating meat from BSE-affected animals and the development of vCJD, Mr. Baur is particularly concerned about eating adulterated meat from downed animals.

29. As a direct and proximate result of the USDA's failure to label downed livestock as adulterated and to remove adulterated livestock from the food supply, Mr. Baur has been injured by the risk that he may consume meat that is the product of a downed animal, and by his apprehension and concern arising from this risk. Mr. Baur's injuries in this respect would be redressed

by the relief requested of this Court. The labeling of all downed animals as adulterated and the subsequent removal of those animals from the nation's food supply would ensure that no meat or meat products consumed by Mr. Baur comes from downed animals.

It is clear from this that Baur, like scores of millions of his fellow Americans, eats meat. But how does he distinguish himself from these scores of millions such that a court might conclude that he is particularly susceptible to injury as a result of his meat eating? We are not told whether or not Baur consumes meat in excess of the national per capita average. Rather, we are told that he experiences "apprehension" about his consumption of meat. Since concerns about the health risks of meat consumption are not unknown in contemporary America--they have even been the subject of recent class action litigation in this Circuit, see Pelman v. McDonald's Corp., 237 F.Supp.2d 512 (S.D.N.Y.2003)--this certainly does not make Baur unique among American meat eaters. But let us grant that Baur has succeeded in distinguishing himself as an American meat consumer who is "particularly concerned" about contracting illness as a result of consuming the meat of a BSE-infected animal. Is this, in addition to the fact that he eats meat, sufficient to establish that he has standing to challenge the manner in which the USDA currently approaches the problem of BSE infection?

II.

I believe that this question is best answered by analogy to City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In that case, an individual plaintiff sought to enjoin the police of the City of Los Angeles from the practice of using "chokeholds" to restrain suspects. The plaintiff, who had once been subjected to a chokehold by Los Angeles police officers, alleged in his complaint that he "and others similarly situated are threatened with irreparable injury in the form of bodily injury and loss of life, and that [he] 'justifiably fears that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death without provocation, justification or other legal excuse.'" Id. at 98, 103 S.Ct. 1660.

The Supreme Court held that the plaintiff failed to demonstrate injury in fact. Even as it acknowledged the possibility that some as yet unidentifiable citizens of Los Angeles might be subjected to chokeholds in the future, and suffer injury as a result, the Court found it to be nothing beyond conjecture that

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the plaintiff himself would be among these:

Of course, it may be that among the countless encounters between the police and the citizens of a great city such as Los Angeles, there will be certain instances in which strangleholds will be illegally applied and injury and death unconstitutionally inflicted on the victim. As we have said, however, it is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter between the police and a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse. And it is surely no more than speculation to assert either that Lyons himself will again be involved in one of those unfortunate instances, or that he will be arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury. Id. at 108, 103 S.Ct. 1660.

None of this is to say that the Court did not recognize that the use of force against criminal suspects by the Los Angeles police is a matter of legitimate public concern. But the Court concluded in Lyons that the future course of conduct by Los Angeles police officers was not best fashioned in the context of a lawsuit brought by an individual plaintiff who could do no more than posit the mere possibility that he would be harmed by Los Angeles police officers in the future. Even given that he had been harmed by officers in the past, the Court held that "[a]bsent a sufficient likelihood that he will again be wronged in a similar way, [he] is no more entitled to an injunction than any other citizen of Los Angeles." Id. at 111, 103 S.Ct. 1660.

Baur's contentions of injury in fact are much like those asserted by the plaintiff in Lyons, but weaker. The plaintiff in Lyons had suffered past injury as the result of the government policy he challenged in his lawsuit, but Baur makes no allegation that purportedly lax USDA monitoring procedures have already caused him to consume the meat of a BSE-infected animal. Indeed, he does not allege that anyone in the United States has yet consumed BSE-infected meat. Baur does allege that he suffers a form of current injury in that, as he puts it in his brief, "he continually suffers from apprehension and concern that he will contract vCJD and die." As already noted, however, the plaintiff in Lyons also alleged that he suffered as a result of his apprehension and concern that he would be subjected to another chokehold. The Supreme Court squarely rejected this as a basis for establishing injury in fact: "It is the reality of the threat... that is relevant to the standing inquiry, not the plaintiff's subjective apprehensions." Id., at 107, n. 8, 103 S.Ct. 1660 (emphasis in

original).

This leaves Baur's assertion that he faces potential injury as a result of the alleged failure of the USDA to adequately protect him from consuming BSE-infected meat. While the Supreme Court has held that standing to sue may exist on the part of a plaintiff who attempts to satisfy the injury in fact requirement through allegations of potential injury, the Court has been careful to emphasize that such allegations must rise above the merely conjectural. "A threatened injury must be certainly impending to constitute injury in fact." Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (quotation omitted). That is, "[w]here there is no actual harm" alleged, "its imminence (though not its precise extent) must be established." Lujan, 504 U.S. at 564, n. 2, 112 S.Ct. 2130. And it is particularly well to repeat here what is noted by the majority; that "[a]lthough 'imminence' is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes." Id."7

Neither Baur nor the majority make any argument that convinces me that this case is not best analogized to Lyons. The majority attempts to distinguish Lyons by asserting that, in that case, "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." But the

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In light of these precedents, I do not understand the majority's assertion that "the Supreme Court has yet to speak directly" on the question of whether threatened harm may satisfy injury in fact.

Baur's attempt to establish injury in fact is at least as difficult as that faced by the plaintiff in Lyons. Just as the plaintiff in Lyons was only one citizen of a megalopolis, each one of whom might have an encounter with the police in the future, so Baur is just one among the scores of millions of American meat eaters who might at some point in the future conceivably eat the meat of a BSE-infected animal and become ill. That is, if we consider the future of meat consumption in the United States, we may confidently predict that, to borrow the advertising slogan of a prominent chain of hamburger restaurants, there will be "billions and billions served." Baur has perhaps sufficiently alleged that, among these billions of future servings, current USDA screening procedures will cause some of those being served to become ill because they have eaten the meat of a BSE-infected animal. It is certainly speculative to assert that this will happen, and is doubly speculative to predict how many American meat consumers will be injured should an outbreak of vCJD occur. But it is something well beyond speculation to assert that Baur will be among these unfortunate individuals. I therefore do not understand the majority's conclusion that "if Baur's allegations are to be credited, then he faces a present, immediate risk of exposure to BSE through the consumption of downed livestock." Specifically, I fear that the majority's finding that Baur has established injury in fact allows the requirement of an imminent threat of injury to be satisfied by the merely conceivable. [NOTE: This was FN2 in the dissent Editor]