AMERICAN CHEMISTRY COUNCIL, et al., Petitioners v. DEPARTMENT OF TRANSPORTATION, Respondent
Nos. 03-1456, 05-1191
United States Court of Appeals, District of Columbia Circuit
Decided Oct. 13, 2006
466 F.3d 810
GRIFFITH, Circuit Judge
Utility Solid Waste Activities Group, et al., Intervenors. Argued March 20, 2006.
Jonathan H. Levy, Attorney, U.S. Department of Justice, argued the cause for respondent. On the brief were Peter D. Keisler, Assistant Attorney General, Douglas N. Letter and August E. Flentje, Attorneys, Jeffrey A. Rosen, General Counsel, U.S. Department of Transportation, Paul M. Geier, Assistant General Counsel, and Peter J. Plocki, Senior Trial Attorney.
Before SENTELLE, ROGERS and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Circuit Judge ROGERS.
GRIFFITH, Circuit Judge.
Several associations of hazardous materials manufacturers, shippers, and transporters challenge a Department of Transportation (“Department“) rule defining when hazardous materials are being “load[ed], unload[ed], or stor[ed] incidental to the[ir] movement,”
I.
Congress enacted the Hazardous Materials Transportation Act (the “HMTA” or “Act“) in 1975 to “improve the regulatory and enforcement authority of the Secretary of Transportation to protect the Na-
The Act provides that the Department‘s regulations:
(A) apply to a person who—
(i) transports hazardous material in commerce;
(ii) causes hazardous material to be transported in commerce;
(iii) designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs, or tests a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce;
(iv) prepares or accepts hazardous material for transportation in commerce;
(v) is responsible for the safety of transporting hazardous material in commerce;
(vi) certifies compliance with any requirement under this chapter; or
(vii) misrepresents whether such person is engaged in any activity under clause (i) through (vi); and
(B) shall govern safety aspects, including security, of the transportation of hazardous material the Secretary considers appropriate.
After initially promulgating the HMR, the Department “issued a number of interpretations ... in response to public requests for clarification regarding the meaning of the term ‘transportation in commerce’ and whether particular activities fall under that term and, therefore, are subject to the HMR.” Advanced Notice of Proposed Rulemaking, Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage, 61 Fed. Reg. 39522, 39522 (July 29, 1996). In 1996, the Department sought “to consolidate, clarify, and revise, as necessary, these interpretations, rulings and decisions, and make them part of the HMR.”
After the Department‘s notice of proposed rulemaking, but prior to promulgation of its final rule, Congress amended the Department‘s mandate to add the phrase “including security” twice to § 5103(b). Homeland Security Act of 2002,
In defining “pre-transportation function,” the Department‘s Final Rule set out several specific “function[s] ... that [are] required to assure the safe transportation of a hazardous material in commerce.” 70 Fed.Reg. at 20033 (codified at 49 C.F.R. § 171.8). It concluded that these enumerated “pre-transportation functions” would be subject to regulation under the HMR when performed by any person. See 68 Fed.Reg. at 61937 (codified at 49 C.F.R. § 171.1(b)). In contrast, the Department concluded that it would not regulate the unloading of hazardous materials when, generally speaking, a shipping company leaves the premises of a receiver of hazardous materials. See 70 Fed.Reg. at 20032 (codified at 49 C.F.R. § 171.1(c)(3)). “Unloading incidental to movement” was defined as
removing a ... containerized hazardous material from a transport vehicle ..., or for a bulk packaging, emptying a hazardous material from the bulk packaging after the hazardous material has been delivered to the consignee when performed by carrier personnel or in the presence of carrier personnel or, in the case of a private motor carrier, while the driver of the motor vehicle from which the hazardous material is being unload-
ed immediately after movement is completed is present during the unloading operation.
storage of a transport vehicle ... containing a hazardous material by any person between the time that a carrier takes physical possession of the hazardous material for the purpose of transporting it in commerce until the package containing the hazardous material is physically delivered to the destination indicated on a shipping document, package marking, or other medium, or, in the case of a private motor carrier, between the time that a motor vehicle driver takes physical possession of the hazardous material for the purpose of transporting it in commerce until the driver relinquishes possession of the package at its destination and is no longer responsible for performing functions subject to the HMR with respect to that particular package.
70 Fed.Reg. at 20033 (codified at 49 C.F.R. § 171.8).
The American Chemistry Council and several other trade associations filed a petition for review of the October 2003 Rule in this Court on December 29, 2003. These same petitioners filed another petition for review of the Final Rule on June 8, 2005. We have jurisdiction to review petitioners’ timely challenge pursuant to
Petitioners challenge several aspects of the Department‘s Final Rule. Specifically, petitioners argue that (1) the Department‘s definitions were contrary to the intent of Congress as expressed in the Act; (2) the Department failed to adequately consider or address the security implications of its Final Rule, as required by the Homeland Security Act of 2002; (3) the Department failed to clearly articulate the legal, factual, and policy reasons for its Final Rule; and (4) the Department failed to address the substantive comments of “various parties.” Petitioners’ Br. at 4-5.
II.
“Because Article III limits the constitutional role of the federal judiciary to resolving cases and controversies, see, e.g., Chi. & Grand Trunk Railway Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176 (1892), a showing of standing ‘is an essential and unchanging’ predicate to any exercise of our jurisdiction.” Flori-da Audubon Soc. v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). An association, such as each of the petitioner- and intervenor-associations, “‘has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization‘s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.‘” United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996) (quoting Hunt v. Wash. State Apple Adver. Comm‘n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). Because we conclude that petitioners and intervenors have failed to demonstrate “that at least one member ... has standing to pursue this challenge,” Am. Library Ass‘n. v. FCC, 406 F.3d 689, 696 (D.C.Cir.2005), we need only address this first element of associational standing set forth in United Food and Washington Apple.
“[T]he irreducible constitutional minimum of standing contains three elements.” Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130. “First, the plaintiff must have suffered an injury in fact—which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. (quotation marks and citations omitted). “Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (quotation marks and alterations omitted). “Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561, 112 S.Ct. 2130 (quotation marks omitted).
In describing which members would have standing to bring suit in their own right, petitioners’ opening brief asserted generally that “[t]he record of this rulemaking proceeding demonstrates that each association has numerous members that are subject to the rules at issue, and would have individual standing to file for review of the final rule” and “[t]hus, each petitioner has standing to challenge the final rule.” Petitioners’ Br. at 2. Intervenors, on the other hand, offered two specific theories of standing: (1) “[b]ecause of [the Department‘s] failure to regulate as broadly as the statute directs, [intervenors‘] members, as well as the industries represented by petitioners, face substantial burdens including overlapping, duplicative and sometimes inconsistent state and local hazardous transportation-related requirements” and (2) “they face increased liability risks associated with gaps in federal oversight over the safe and secure transportation of hazardous materials.” Intervenors’ Br. at 6-7. The Department did not question standing in its brief, although it suggested to the Court that “[t]his is an unusual case in that petitioners, associations of hazardous materials manufacturers, shippers, and transporters, are suing the Department of Transportation asking to be more extensively regulated under the federal statute governing the transportation of hazardous materials.” Respondent‘s Br. at 8 (emphasis added). Given that this case involves, as the Department also put it in its brief, an “atypical request” by industry associations to require an agency to regulate their industry more pervasively, id., we raised the issue of standing at oral argument and requested supplemental briefing. See Am. Library Ass‘n v. FCC, 401 F.3d 489, 490-95 (D.C.Cir.2005). In their supplemental brief, petitioners assert two theories of standing, which we discuss in turn.
Petitioners argue that the Department has failed to regulate as broadly as they believe the Act requires and that, because of that failure, “burdensome state and local requirements that would have been preempted” by the Act continue to apply to their members. Petitioners’ Supp. Br. at 4. Petitioners base this theory of standing entirely on the alleged injury of one member. Hasa Inc., a California-based company, produces liquid sodium hypochlorite, a chemical used in sanitizing swimming pools and spas, and is a member of petitioner The Chlorine Institute. Decl. of Mark Wilson ¶ 2. Hasa regularly receives railroad tank cars containing compressed chlorine gas. Id. ¶ 3. Each time a new car is needed, it is brought onto a railroad track adjacent to Hasa‘s production plant, and Hasa withdraws gas from the car as required to produce its product. Id. The Los Angeles County Fire Department issued a “Violation Notice” to Hasa on July 2, 2003 “requiring the construction of a large ventilated building over the railroad track siding adjacent to the Hasa plant production area (hereafter called the ‘Barn‘).” Id. ¶ 4. Hasa has since retained architects and engineers to produce plans for constructing the Barn, which have been submitted to the Fire Department for approval. Id. ¶ 5.3 Building the Barn “will be very expensive” and, Hasa alleges, “will unreasonably burden the movement of the railroad tank cars on the adjacent railroad tracks ... as well as unreasonably burden the offloading of the gaseous chlorine by Hasa.” Id. ¶ 7.
Petitioners direct the Court to several provisions of the Los Angeles County Fire Code (“Fire Code“) that they argue would be preempted if the Department adopted their broader version of the Final Rule. Petitioners only allege, however, that two provisions of the Fire Code are being applied to Hasa and we thus only examine whether petitioners have demonstrated an injury in fact with respect to those two provisions.
A declaration submitted by petitioners attests that Hasa is being required to construct the Barn pursuant to Title 32, Los Angeles County Fire Code §§ 8003.3.1.3.5.2 and 8004.2.3.7.1. Decl. of Sasha N. Browner ¶ 7. Section 8004.2.3.7.1 provides that “[t]ank vehicles or railroad tank cars engaged in the use or dispensing of toxic or highly toxic gases shall be within a ventilated separate gas storage room or placed within an exhausted enclosure.” L.A. County, Cal., Fire Code § 8004.2.3.7.1 (2001). Section 8003.3.1.3.5.2 requires such rooms to have a “treatment system” that is “capable of diluting, absorbing, containing, neutralizing, burning, or otherwise processing the entire contents of the largest single tank of gas stored or used.” Id. § 8003.3.1.3.5.2. Thus, petitioners claim Hasa is “facing an injury in fact that is both concrete and particularized as well as actual and imminent” because Hasa will have to build the Barn pursuant to the Fire Code. Petitioners’ Supp. Br. at 6.
Petitioners assert that, in requiring Hasa to build the Barn, “[t]he unloading requirements in Los Angeles County go far beyond anything contained in [the Department‘s] regulations.” Petitioners’ Supp. Br. at 5 (citing 49 C.F.R. § 174.67(a)(1) (“[u]nloading operations must be performed by hazmat employees properly instructed in unloading hazardous materials“)) (emphasis added). Petitioners’ brief asserts only that Los Angeles County‘s unloading requirements affect Hasa, and it thus appears Hasa has been injured, at most, by the Department‘s definition of the statutory term “unloading.” See
But it is not otherwise sufficient to establish Hasa‘s standing. Although petitioners have demonstrated that Hasa has an injury in fact (i.e., it will have to build and use a ventilation system that it would otherwise not build or use), petitioners have not demonstrated that Hasa‘s injury is “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court,” nor that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130 (alterations and quotation marks omitted). Petitioners
Section 5125 of the Act contains several preemption provisions that, if applicable, might set aside a state or local law. Subsection (a)(1) provides that state or local regulation “is preempted if ... complying with a requirement of the State [or] political subdivision ... and a regulation prescribed under this chapter ... is not possible.”
Petitioners’ theory regarding which provision of § 5125 would preempt the Los Angeles County Fire Code from being applied to Hasa is nonexistent. Petitioners state, in one sentence, that “[a]s a result of [the Department‘s] action and in light of the attached declarations, there can be no doubt that Hasa is facing substantial local regulatory requirements that, but for the ceding of the jurisdiction by [the Department] in the final ... rule, would have been subject to the HMTA‘s preemption provision.
Petitioners have not shown, for example, that a future rule promulgated by the Department would likely preempt, under subsection (a)(1) of § 5125, the Los Angeles County ordinances being applied to Hasa. Petitioners have not explained why it would be “not possible,”
In any event, the Act provides that “the Secretary may waive preemption” upon deciding that a state or local requirement
B. The Existence of a Regulatory “Gap” or “Void.”
As an alternate theory of standing, petitioners contend that the Department‘s Final Rule has left their members with a “gap in safety regulation” or “void” such that “members of Petitioners that ship hazardous materials ... cannot rely upon any meaningful federal or state regulations to protect either their products or the tank cars in which those products move.” Petitioners’ Supp. Br. at 7, 9. In so arguing, petitioners bore “the burdens of production and of proof: [they] ‘must support each element of [their] claim to standing by affidavit or other evidence‘” and their “‘burden of proof is to show a substantial probability,‘” GrassRoots Recycling Network, Inc. v. EPA, 429 F.3d 1109, 1112 (D.C.Cir.2005) (quoting Sierra Club v. EPA, 292 F.3d 895, 899 (D.C.Cir.2002)), that the Final Rule “causes at least one of its members an injury that is ‘concrete and particularized’ and ‘actual or imminent,’ not ‘conjectural or hypothetical,‘” GrassRoots, 429 F.3d at 1112 (quoting Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130). Where an organization alleges associational standing, it must show “that at least one member ... has standing to pursue [its] challenge,” Am. Library Ass‘n. v. FCC, 406 F.3d 689, 696 (D.C.Cir.2005). But petitioners have failed to meet this burden because they neither argued nor directed the Court to evidence that any of their specific members has suffered a “concrete and particularized” harm that is “actual or imminent.”
In Sierra Club v. EPA, 292 F.3d 895 (D.C.Cir.2002), this Court held that “a petitioner whose standing is not self-evident [from the administrative record] should establish its standing by the submission of its arguments and any affidavits or other evidence[.]” Id. at 900. In the opening round of briefs on appeal, petitioners only hinted at the possibility of associational standing by stating no more than that “each association has numerous members that are subject to the rules at issue, and would have individual standing to file for review of the final rule.” Petitioners’ Br. at 2. Not finding standing self-evident, we granted leave to petitioners and respondent to submit supplemental briefs on the issue, which gave petitioners another opportunity to make their argument by directing us to portions of the record or by submitting affidavits or other evidence that show their standing.
In response, petitioners submitted no affidavits or other forms of evidence. Instead, they relied entirely upon citations to the record. Petitioners claimed only in a most general fashion that “[t]he extensive administrative record in this case reflects that Petitioners’ members operate facilities in most, if not every, state and in scores of local jurisdictions around the country.” Petitioners’ Supp. Br. at 7. Petitioners
Petitioners also directed the Court to a brief comment made to the Department by the American Chemistry Council (“ACC“) expressing a “concern[] ... [that] states and/or localities have not demonstrated an ability to regulate in these areas and [the Department] has not made an effort to address the safety consequences of its proposed actions.” Joint Appendix (“J.A.“) at 319 (emphasis added). But petitioners have not explained how this comment shows an injury in fact suffered by a specific member.
While shedding some light on the general danger that may come from a regulatory void, the NTSB‘s comments and the ACC‘s comment, even when taken together, fall short of establishing certainly impending dangers for any particular member of the petitioners’ associations. The comments do not indicate, for example, that any of petitioners’ members have been or will be working in specific areas with safety concerns. It is not enough to allege that petitioners’ associations comprise the majority of the workers who handle hazardous materials. Petitioners’ Supp. Br. at 7; J.A. at 113 and 120. Lacking any affidavits from petitioners’ members alleging actual or imminent injury or other evidence to that effect, the Court can find the necessary harm only by assuming a link between the petitioners’ comments in the administrative record and the proposition that at least one member of the association faces imminent dangers. We decline to assume missing links for reasons we gave in Sierra Club:
The facts upon which a petitioner relies for its standing to sue are necessarily peculiar to it and are ordinarily within its possession; indeed it is often the case ... that some of the relevant facts are known only to the petitioner, to the exclusion of both the respondent and the court. Yet all too often the petitioner does not submit evidence of those facts with its opening brief and the respondent is therefore left to flail at the unknown in an attempt to prove the negative.
Id. at 901. If petitioners’ claim to standing arises out of safety concerns for their members, they should easily have access to information concerning whether any one of their members has been harmed or faces a substantial probability of being harmed by lax state regulation. Petitioners had at least two opportunities to submit evidence to show standing for one of their members, and the Court is still left to wonder who, if anybody, has suffered an injury-in-fact. Since the NTSB‘s comments and ACC‘s comment do not meet the requirement that the evidence submitted, whether offered in the form of “affidavits or other evidence,”
Absent declarations or citations to the record from petitioners that establish a concrete harm to one of petitioners’ members, the Court is left to wonder, for example, (1) whether petitioners suffer from a concrete, particularized, and imminent injury in fact; (2) why petitioners cannot protect their “products or the tank cars in which those products move,” Petitioners’ Supp. Br. at 9, through voluntary self-regulation or private contracts; (3) whether any alleged injury is fairly traceable to the Department as opposed to petitioners themselves or state and local regulators; and (4) how setting aside the Department‘s Final Rule would likely remedy any alleged injury. Nonetheless, we do not suggest that petitioners could not possibly have demonstrated standing to challenge the Department‘s alleged failure to regulate. We need not, and do not, express any opinion on whether the manufacturers, shippers, and transporters in this case could have provided evidence of their standing to pursue the challenges they bring to the Department‘s Final Rule. It suffices to say that, when given an opportunity to do so, petitioners did not.
Contrary to the suggestion in the dissenting opinion, we are not requiring an actual past injury to petitioners to establish an injury-in-fact. We hold only that (i) “the injury complained of be, if not actual, then at least imminent[.]” Defenders of Wildlife, 504 U.S. at 564 n. 2, 112 S.Ct. 2130, and just as importantly for these petitioners, (ii) that an organization bringing a claim based on associational standing must show that at least one specifically-identified member has suffered an injury-in-fact. It is not enough to show, as the dissent argues from its observation that petitioners are part of the industry being regulated by the Final Rule, that there is a substantial likelihood that at least one member may have suffered an injury-in-fact. Our standard has never been that it is likely that at least one member has standing. At the very least, the identity of the party suffering an injury in fact must be firmly established. The dissent cites persuasive authority to make a point that we do not contest: Article III does not require actual harm. We agree. Indeed, as Defenders of Wildlife makes clear, imminent harm will suffice. Id. But none of the cited cases diminish petitioner‘s burden to produce evidence of the imminent nature of a specific harm to a specific party when an actual harm is absent. That is where petitioners have failed. In fact, in each of the cases cited by the dissent either an actual harm (economic, aesthetic, or procedural) was present or the imminent nature of the harm to a specific entity or person was sufficiently established through affidavits or other evidence. See Ass‘n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (finding competitor standing for data processing companies since evidence of impending loss of two customers sufficiently established imminent economic harm); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (holding that plaintiff‘s desire to canoe nearby a polluted wastewater discharge “adequately documented injury in fact” without showing any physical injury on the plaintiff‘s part since “aesthetic and recreational values” derived from the affected area were al-
For the same reasons discussed above, intervenors, too, have failed to establish that at least one party has standing. Intervenors assert a basis for standing similar to petitioners’ theory of a regulatory void, positing that
[the Department] improperly narrowed the scope of the regulated universe so that instead of facing uniform national regulatory standards as contemplated by the HMTA, intervenors face a hodgepodge of varying state and local requirements and standards that would be superseded by a properly issued federal regulation under the Act‘s preemption provision.
49 U.S.C. § 5125 .
Intervenors’ Br. at 6. Intervenors offer a string cite to the first page of various comments filed before the Department, but have not explained how any of their members suffers an injury-infact. Nor have intervenors introduced arguments and evidence attempting to substantiate their “hodge-podge” theory—that there are inconsistent state and local regulations, which a properly-issued Final Rule would have preempted, and that the failure to preempt these inconsistent regulations causes redressable injury in fact. Alternatively, intervenors assert in a sentence that “they face increased liability risks associated with gaps in federal oversight over the safe and secure transportation of hazardous materials,” Intervenors’ Br. at 6-7, but again have introduced no evidence whatsoever to support such a claim. Thus, intervenors, too, have failed to meet their burden of establishing a substantial probability that the Final Rule causes at least one member an injury in fact.5
III.
The petitions for review are dismissed.
So ordered.
ROGERS, Circuit Judge, dissenting:
Adhering to instruction from the Supreme Court, this court explained in Sierra Club v. EPA:
In many if not most cases the petitioner‘s standing to seek review of administrative action is self-evident; no evidence outside the administrative record is necessary for the court to be sure of it. In particular, if the complainant is “an object of the action (or forgone action) at issue“—as is the case usually in review of a rulemaking and nearly always in review of an adjudication—there
should be “little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.”
292 F.3d 895, 899-900 (D.C.Cir.2002) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In this case, a review of the administrative record shows that standing is self-evident.
The petitioners and the intervenors (hereafter, “petitioners“) are trade associations that represent the manufacturers, shippers, and transporters of hazardous materials.1 The final rule of the Department of Transportation (“Department“) subjects the associations’ members to federal regulation when handling hazardous materials during shipment and transport. See Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage, 70 Fed.Reg. 20,018 (Apr. 15, 2005); Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage, 68 Fed.Reg. 61,906 (Oct. 30, 2003) (collectively, the “final rule“). However, the final rule leaves unregulated the unloading of hazardous materials, creating a void to be filled by state and local authorities. During rulemaking, the regulated industry set forth its concerns that gaps in the final rule increased the risk of injury both to the public and to members’ employees who handle hazardous materials. As materials submitted by the federal review board charged with investigating “hazmat” accidents confirm, these concerns are clearly non-conjectural. Under the circumstances, an association whose members are subject to the challenged rule has self-evidently met its burden to demonstrate that it has standing to seek vacation of the final rule. See Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130; Motor & Equipment Mfrs. Ass‘n v. Nichols, 142 F.3d 449 (D.C.Cir.1998). Here, petitioners maintain that (1) the rule
Petitioners state in their opening brief that they represent “members [that] transport, offer for transportation or cause to be offered for transportation hazardous materials ... The record of this rulemaking proceeding demonstrates that each association has numerous members that are subject to the rules at issue, and would have individual standing to file for review of the final rule.” Petitioners’ Br. at 2; see id. at ii (enumerating petitioners); Intervenors’ Br. at 5-7 (asserting standing as to intervening electric and gas utility trade associations who “use, generate, transport and dispose of hazardous materials“). A sampling of the record references cited by petitioners suffices to support this statement and thus to show that it is self-evident that at least one member of the petitioner-associations has standing to challenge the final rule. See United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996); Hunt v. Wash. State Apple Adver. Comm‘n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). In supplemental briefs on standing, petitioners submitted additional citations to the administrative record in support of two theories, based on (1) the burdens and dangers resulting from a hodge-podge of state and local requirements and (2) the increased liability risks associated with gaps in federal oversight. See Op. at 816, 818. Together, the record citations establish that the associations of shippers and carriers properly stand before this court as parties who have been aggrieved by a rule for which they are “an object of the ... forgone action[] at issue.” Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130.
Although it cannot be gainsaid that the court must assure itself that the parties have standing, the administrative record here cannot fairly be read to leave the court unconvinced, as petitioners have fully met their burden as to the well-rehearsed requirements of injury-in-fact, causation, and redressability. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004); Hazardous Waste Treatment Council v. EPA, 861 F.2d 270, 277 (D.C.Cir.1988). The record plainly supports the theories advanced by petitioners, namely that the Secretary, by failing to set a national standard for unloading, has left petitioners’ members’ employees and the public more susceptible to accidental injury. Representatives of the regulated industry and the National Transportation Safety Board (“NTSB“) have attested to the burdens of compliance and the security and safety gap that accompanies the unreliable hodge-podge of state, county, and local requirements for unloading in the absence of a federal standard.
For example, petitioner American Chemistry Council (“ACC“), stating that it “represents the leading companies engaged in the business of chemistry ... and is America‘s #1 exporter—with more than $80 billion in exports in 2000” and that its members represent “more than 90% of the productive capacity of basic industrial chemicals in the United States and a large portion of the regulated hazardous materials shipping community,” J.A. at 314, commented that regulatory gaps would result in compromised safety because the Department has considerable
Consequently, the court‘s standing analysis is flawed in two respects. First, the court has no warrant to ignore the administrative record when assessing standing. Second, the court incorrectly insists upon proof of actual past injury, see Op. at 818-21, when none is required to establish imminent and non-conjectural injury-in-fact.
The instructions of this court in Sierra Club and of the Supreme Court in Defenders of Wildlife obligate this court to consider the administrative record when evaluating the standing of a regulated party. How can standing ever be “self-evident” from the administrative record unless the court examines that record? Instead the court disregards the evidence from the administrative record cited in petitioners’ briefs. The court reasons that the affidavit attached to the supplemental brief fails to demonstrate that a federal unloading standard would preempt the local requirement, Op. at 818, and that there is no evidence that one of petitioners’ members has, in fact, suffered an actual injury caused by the rule, Op. at 818-21. The evidence of injury can be found in the administrative record. See Petitioners’ Supp. Br. at 8 (citing J.A. at 319-20, addressing the regulatory gap, and J.A. at 212-19, 222-23, regarding the NTSB‘s concerns); Intervenors’ Br. at 7 (referencing, inter alia, statements by USWAG and American Chemistry Council cited supra). To the extent that the court‘s opinion implies a reluctance to credit record materials that are not also cited in the party briefs, this is inconsistent not only with the premise that standing can be “self-evident” from the administrative record, it is also inconsistent with our precedent, as in Am. Library Ass‘n v. FCC, 401 F.3d 489, 491 (D.C.Cir.2005), where the court found inadequate support for standing only after reviewing the administrative record.
The non-conjectural nature of the industry‘s safety concerns is borne out by the comments from the NTSB in the administrative record. The NTSB is charged with investigating accidents involving the handling of hazardous materials,
In light of Hazardous Waste, and the other precedent cited, the record comments regarding the likelihood of harm to members’ employees suffice to show injury-in-fact. See generally Valley Forge Christian College v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472-76, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The court relies upon Defenders of Wildlife to heighten the evidentiary burden but fails to recognize that, in Defenders of Wildlife, the plaintiff‘s injury arose from the allegedly unlawful regulation (or lack thereof) of a third party, leading to enhanced requirements of causation and redressability. 504 U.S. at 562, 112 S.Ct. 2130; see Op. at 814-15, 817, 818, 818-19, 819-20, 820-21, 821 (citing Defenders of Wildlife). The nexus between the final rule and the risks of injury identified by the regulated industry and by the NTSB are not in doubt; granting the petitions would afford petitioners a meaningful remedy. Additional-
Understandably, in view of the precedent, the government has not suggested that petitioners lack standing, although invited to do so during oral argument when the court, sua sponte, first raised the issue. According to the court today, however, it is not sufficient that petitioners represent the bulk of the regulated industry that will be directly affected by the final rule. Nor is it sufficient that petitioners have provided citations to the administrative record that establish the non-conjectural nature of industry concerns with the final rule as it affects the risks to public and employee safety. Nor is it sufficient that petitioners’ briefs identified safety concerns, see Petitioners’ Br. at 10, 19-22; Joint Reply Br. at 7-8; Petitioners’ Supp. Br. at 7-9; Intervenors’ Br. at 6-7, in support of their standing that are consonant with our precedent. Instead, the court blinds itself to what is plainly before it: the administrative record to which, as precedent instructs, the court properly turns to assure itself of the parties’ standing. Defenders of Wildlife, 504 U.S. at 561-62, 112 S.Ct. 2130; Sierra Club, 292 F.3d at 899-900.
Accordingly, because the administrative record demonstrates that petitioners have standing to challenge the final rule, I respectfully dissent.
Notes
(A) the designation, description, and classification of hazardous material.
(B) the packing, repacking, handling, labeling, marking, and placarding of hazardous material.
(C) the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents.
(D) the written notification, recording, and reporting of the unintentional release in transportation of hazardous material.
(E) the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.