Law often draws a crucial distinction between substance and procedure. Substantive law defines legal rights, and procedural rules govern how those rights are protected or prosecuted. Typically, one might think of statistics as being used to drive the substantive questions in litigation: Was there a harm? What was its extent? What might damages be in the future? And so on. Yet, statistical questions can also deeply impact the procedural aspects of litigation.
Consider a recent case from the District of Columbia.* The case concerned Endangered Species Act (ESA) protection for the Louisiana Black Bear, or LBB. The LBB had long been listed as a threatened species under the ESA, but was recently delisted...A group of plaintiffs concerned for the bears filed suit, arguing that the bear should not have been delisted. In these types of suits, one challenge plaintiffs face is establishing "standing", the ability to show they have suffered an "injury in fact" by the actions of the defendant. The court noted the following (bold emphasis added):
"First, one plaintiff claims in his affidavit that delisting will lead to the LBB being 'reduced in numbers or distribution,' which will in turn make it more difficult 'to observe and study the Louisiana black bear and its habitat'...The problem with this claim is that, while plaintiffs’ aesthetic interest in the LBB could conceivably support an injury in fact, plaintiffs have not provided the Court with any evidence whatsoever demonstrating that delisting will lead inexorably to fewer LBBs or make it harder to observe LBBs in the wild. It is not self-evident what the result of delisting will be for LBB population levels. The Delisting Rule itself notes that the main LBB subpopulations 'are stable or increasing,' and that the probability of long-term persistence is 99.6%…
"In support of their claim about the negative effects of delisting on population levels, plaintiffs could have submitted population-modeling data, data showing what occurred to the populations of other species following delisting, or some other facts demonstrating a link between delisting and population decreases...**
"But plaintiffs submitted no such data to the Court. As a result, there are no facts in the record to show that the Delisting Rule will 'actually' cause the claimed harm, much less that the harm will follow 'imminently' from the delisting…Without facts to support it, plaintiffs’ claim that '[t]he loss of ESA protections results in the likelihood of there being fewer bears to observe, study, and enjoy,'…is nothing more than a mere allegation. Mere allegations do not satisfy the injury-in-fact requirement at the summary judgment stage of litigation." Without statistical evidence, plaintiffs could not overcome the procedural hurdle to show standing, and the court dismissed their case for lack of jurisdiction. Had the plaintiffs come armed with convincing statistics, the court might have ruled a different way. Having satisfied the procedural requirements to lay “bare” their injury, they would have continued their day in court to argue the substantive issues with delisting the Louisiana Black Bear.
*Public Employees for Environmental Responsibility v. Bernhardt, No. 18-1547 (JDB) 2020 WL 601783 (D.D.C. Feb. 7, 2020)
**Cf. Jewell, 76 F. Supp. 3d at 108, concluding that plaintiffs challenging delisting had standing where they provided data showing that population of gray wolves would decrease upon delisting