NUCLEAR INFORMATION AND RESOURCE SERVICE; Committee to Bridge the Gap; Public Citizen, Inc.; and Redwood Alliance, Petitioners, v. NUCLEAR REGULATORY COMMISSION, Respondent.
No. 04-71432.
United States Court of Appeals, Ninth Circuit.
July 24, 2006.
In light of this, although it may be a close case, I would hold that the agents’ familiarity with the Havre community; their observation of a group of Hispanic-looking men at a football game who appeared to be a work-crew and were speaking only to each other, and only in Spanish; and the agents’ particularized knowledge that work crews in the area “were frequently made up of foreign nationals, and on occasion included illegal aliens” established the requisite reasonable suspicion to warrant the seizure and questioning. The seizure and questioning doubtless would be of only minimal impact on all the subjects, except Appellant, who after the brief seizure of the vehicle by delaying it could have responded that they were lawfully in the United States. The impact on Appellant of giving a truthful answer to the agents’ query about papers was a consequence of his illegal presence in the United States; his interest in maintaining a covert illegal presence is not one to which our constitutional law needs give primacy under these circumstances. The intrusion on privacy of all these individuals, including Appellant, was minimal and the law enforcement needs to control illegal immigration are significant.
I respectfully dissent.
Grace H. Kim, Office of the General Counsel, Washington, D.C., for the respondent.
Before RYMER and WARDLAW, Circuit Judges, and JAMES V. SELNA,* District Judge.
RYMER, Circuit Judge.
The Nuclear Information and Resource Service, Committee to Bridge the Gap, Public Citizen, Inc., and Redwood Alliance (collectively NIRS) challenge the Nuclear Regulatory Commission‘s (NRC) rulemaking, which revised regulations governing the exemption standards for the transportation of radioactive material. NIRS argues that NRC failed to comply with its obligations under the
I
NRC and the Department of Transportation (DOT) co-regulate the transporta
The United States is a member of the International Atomic Energy Agency (IAEA),1 which, in 1961, adopted international regulations for the safe transportation of radioactive material. The IAEA regulations were published in Regulations for the Safe Transport of Radioactive Materials, IAEA Safety Series No. 6 (SS-6). As a Member State, the United States harmonized its domestic regulations with the IAEA standards. The IAEA periodically has revised SS-6 with “substantial input” from DOT, and, following each revision, DOT and NRC have amended domestic regulations to make them compatible with the IAEA standards. The latest significant revision to the SS-6 was published in December 1996, and redesignated TS-R-1 in June 2000. The principal change from the prior IAEA regulations to TS-R-1 at issue in this case involves radionuclide exemption values.
Following the IAEA revisions, NRC and DOT began the rulemaking process for revising domestic regulations on exemption values to make them compatible with the new IAEA standards—DOT with its IAEA Compatibility Amendments and NRC with conforming amendments to its Part 71 Regulations. See Compatibility with IAEA Transportation Safety Standards (TS-R-1) and Other Transportation Safety Amendments; Final Rule, 69 Fed.Reg. 3,698 (Jan. 26, 2004) (to be codified at
Before adopting the regulation, NRC (and DOT) applied a uniform “activity concentration” standard to exempt transportation of low-radioactivity material from regulation. “Activity concentration” refers to the number of nuclear disintegrations per second in a gram of material and is commonly measured in Becquerels. A Becquerel is one radioactive disintegration per second. This prior NRC/DOT standard, which was also the pre-1996 IAEA standard, established 70-Becquerels per gram (Bq/g) as the uniform activity concentration standard; radioactive material with fewer than 70 disintegrations per second in a gram was exempted from NRC regulation during transport.
In 1996, the IAEA determined that there was no technical justification for the single activity concentration value of 70 Bq/g and concluded that the technically sound approach was a dose-based standard, which it adopted. Dose depends not only on the number of disintegrations per second but also on the type and energy of the radiation emitted by a nuclear disintegration. Dose limits are expressed in “rems” or “millirems” (mrem). To develop the dose-based approach, the IAEA used safety standards from a 1996 IAEA study—the “BSS” study, Safety Series No. 115, International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources. The BSS study used a dose-based approach in fixed facility exposure scenarios, as opposed to transport scenarios, and it calculated for each radionuclide an exemption threshold that would limit an effective annual dose to 1 mrem or less per year.2 The IAEA researchers performed calculations on a subset of BSS scenarios and calculated the activity concentration for each of twenty radionuclides that would result in a dose of 1 mrem per year to transport workers in transportation scenarios. They concluded that “[d]ue to differences in radionuclide radiation emissions, exposure pathways, etc., the resulting radionuclide-specific activity concentrations varied widely.” 69 Fed. Reg. at 3711. In other words, to obtain the 1 mrem per year dose level, the activity concentrations for radionuclides differ—some are less than 70 Bq/g, but others are much higher. Instead of an across-the-board 70 Bq/g standard, the new standard is set forth in a chart that states the allowable activity concentrations for various, commonly shipped radionuclides.
The IAEA found that the activity concentrations required in transportation scenarios to limit the effective annual dose to 1 mrem were less than the BSS fixed facility values but not by more than one to two orders of magnitude. This meant that to meet the 1 mrem criteria, the transportation specific levels would have to be more protective than the generic BSS levels. The IAEA determined that the difference in dose between fixed-facility and transport scenarios did not justify imposing a different set of standards for fixed facilities and transportation exemptions, so
After the IAEA moved to dose-based regulations, NRC and DOT began the rulemaking process to harmonize domestic standards with the IAEA standards by adopting dose-based, radionuclide-specific radioactivity levels for each of about 380 radionuclides. In July 2000, NRC published an Issues Paper discussing its proposal to adopt the IAEA exemption standards and it solicited written comments and input at three public meetings. Major Revision to
Following this preliminary public-participation process, in April 2002, NRC published a notice of proposed rulemaking and a draft environmental assessment (EA) as required by NEPA. NRC allowed 90 days for public comment on the proposed rule and held two public meetings. It received about twenty comment letters addressing the proposal to adopt the IAEA methodology for calculating exemption thresholds, most of which opposed the change. These commenters, including NIRS, objected to the dose levels in the proposed rule and to NRC‘s reliance on “unchallenged assumptions” from the International Commission on Radiological Protection (ICRP) on the health risks of exposure to low doses of radiation.
NRC received two comment letters regarding the draft EA, and comments from two speakers during the public meetings about the draft EA. One commenter objected to any exemption of radionuclides, and the others argued that the EA should have developed more quantitative data, particularly with respect to exempt shipping volumes.
NRC issued a final EA that found no significant environmental impact, and on January 26, 2004, NRC published a Final Rule adopting the IAEA exemption values. The final EA was substantially identical to the draft EA with respect to the radionuclide exemption values. The EA explained that “[t]he nature of the change makes it difficult to quantify the safety impacts or benefits.” Because NRC lacked data on exempt shipments, the EA analyzed data pertaining to regulated shipments contained in a 1985 report by Sandia National Laboratories, which estimated the number of regulated (i.e., non-exempt) packages shipped for various nuclides. The EA concluded that of the six most commonly shipped nuclides, two would have a higher exemption level under the new rule and four would have a lower exemption level, meaning that the latter four would be
[C]hanging the existing 70 Bq/g [ ] level in
10 CFR 71.10(a) for exempting any radionuclide from the Part 71 requirements to radionuclide-specific activity limits would result in mixed, although overall minor, effects. For radionuclides with new exemption values that are lower than the current limit, there could be a decrease in the number of exempted shipments and a commensurate slight increase in the level of protection. For radionuclides with new exemption values that are higher than the current limit, there could be an increase in the number of exempted shipments and a commensurate slight increase in associated radiation exposures. However, IAEA has judged that this change would not significantly increase the risk to individuals.
In its Final Rule, NRC similarly concluded: “Because the annual doses estimated to result from the use of the radionuclide-specific exemption values are low, and on average are lower than the dose estimates for the current 70-Bq/g [ ] activity concentration, NRC staff believes that changing from the 70-Bq/g [ ] value to the radionuclide-specific exemption values will result in no adverse impact on public health and safety.” 69 Fed.Reg. at 3719. Based on this FONSI, NRC did not prepare an EIS under NEPA. See
On the same day, DOT issued a final ruling adopting Compatibility Amendments to the HMR to harmonize the regulations with the IAEA standards. See DOT Final Rule, 69 Fed.Reg. 3,632. As a result of the amendments, the HMR now defines “radioactive material” to mean “any material containing radionuclides where both the activity concentration and the total activity in the consignment exceed the values specified” in the new dose-based tables.
On March 26, 2004, NIRS timely filed a petition for review of the NRC rulemaking in this court as permitted by the Hobbs Act. See
On November 9, 2004, NIRS filed an action in the United States District Court for the Northern District of California seeking review of DOT‘s rulemaking. On November 10, 2004, NIRS sought transfer of the NRC review proceedings to the district court for consolidation with the DOT case. We denied that motion on
II
As the Supreme Court recently reiterated, “[w]e have ‘an obligation to assure ourselves’ of litigants’ standing under Article III.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854, 1860, 164 L.Ed.2d 589 (2006) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). Accordingly, we begin by addressing NIRS‘s claim that it has standing to challenge NRC‘s alleged non-compliance with NEPA.
A
To determine whether a litigant has standing, we undertake two distinct inquiries. First, a plaintiff must meet Article III‘s case-or-controversy requirement, which provides a fundamental limitation on a federal court‘s authority to exercise jurisdiction. See DaimlerChrysler, 126 S.Ct. at 1860-61 (emphasizing the critical importance of the case-or-controversy requirement). The Court has recognized that “the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Put simply, “[i]f a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” DaimlerChrysler, 126 S.Ct. at 1860-61; see also Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Article III‘s standing requirements are familiar:
a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Laidlaw, 528 U.S. at 180-81, 120 S.Ct. 693 (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130); see also Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).
The injury NIRS asserts is NRC‘s failure to comply with the requirements of NEPA. We have recognized that our analysis of Article III standing is “not fundamentally changed” by the fact that a petitioner asserts a “procedural,” rather than a “substantive” injury. City of Sausalito v. O‘Neill, 386 F.3d 1186, 1197 (9th Cir.2004). In a “procedural injury” case:
to show a cognizable injury in fact, [a plaintiff] must allege ... that (1) the [agency] violated certain procedural rules; (2) these rules protect [a plaintiff‘s] concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests.
Id. (quoting Citizens for Better Forestry v. U.S. Dept. of Agric., 341 F.3d 961, 969–70 (9th Cir.2003)) (alterations in original). “[A] cognizable procedural injury exists when a plaintiff alleges that a proper EIS has not been prepared under [NEPA]
To establish Article III standing, a plaintiff must also show causation and redressability; however, “[o]nce a plaintiff has established injury in fact under NEPA, the causation and redressability requirements are relaxed.” Cantrell, 241 F.3d at 682; see also Hall v. Norton, 266 F.3d 969, 975 (9th Cir.2001) (holding that “a plaintiff ‘seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs,’ ... can establish standing ‘without meeting all the normal standards for redressability and immediacy.’ “) (quoting Lujan, 504 U.S. at 572 & n. 7, 112 S.Ct. 2130). Instead, they “need only establish the ‘reasonable probability’ of the challenged action‘s threat to [their] concrete interest.” Id. at 977 (quoting Churchill County v. Babbitt, 150 F.3d 1072, 1078 (9th Cir.1998)).
If NIRS‘s members meet the three-part test for constitutional standing, NIRS has organizational standing to represent their interests. Defenders of Wildlife v. EPA, 420 F.3d 946, 956 (9th Cir. 2005). “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization‘s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Laidlaw, 528 U.S. at 181, 120 S.Ct. 693 (citing Hunt v. Wash. State Apple Adver. Comm‘n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
The second inquiry, if a plaintiff meets the constitutional standing requirements, is whether the plaintiff meets the non-constitutional or prudential standing requirements; this inquiry is “whether a particular plaintiff has been granted a right to sue by the statute under which he or she brings suit.” City of Sausalito, 386 F.3d at 1199. “Because NEPA does not provide for a private right of action, plaintiffs challenging an agency action based on NEPA must do so under the Administrative Procedure Act (‘APA‘).” Ashley Creek, 420 F.3d at 939 (citation omitted). To meet the statutory requirements for standing under the APA, a plaintiff “must establish (1) that there has been a final agency action adversely affecting [it], and (2) that, as a result, it suffers legal wrong or that its injury falls within the ‘zone of interests’ of the statutory provision the plaintiff claims was violated.” Churchill County, 150 F.3d at 1078 (quoting Lujan v. Nat‘l Wildlife Fed‘n, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). It is well settled that the zone of interests protected by NEPA is environmental. Ashley Creek, 420 F.3d at 940.
B
NRC argues that NIRS fails to meet the injury-in-fact requirement of standing because NIRS complains in only the most general terms that NRC‘s new regulation may expose members of the public to excessive radiation, but it points to no concrete harm to particular persons.
Lujan holds that “[t]he party invoking federal jurisdiction bears the burden of establishing [the standing] elements,” 504 U.S. at 561, 112 S.Ct. 2130, and that “each element must be supported ... with the manner and degree of evidence required at the successive stages of the litigation,” id. NIRS submitted five brief declarations in support of its standing. The first declaration states in full:
- My name is Gary Brown. I am employed as a truck driver by Brown and Son Trucking, Inc., in San Francisco, California. I have been a truck driver since 1971.
- I am a member of Nuclear Information and Resource Service.
- In the course of my employment, I have regularly transported waste material from industrial sites to disposal sites by truck. I have transported hazardous materials during the past six years. I have transported hazardous materials, including radioactive materials, to disposal sites using public roads and highways in the States of California and Nevada.
- I am concerned that allowing the unregulated transportation of radioactive material may expose me, as well as other members of the public, to adverse health consequences without knowledge or consent and without an ability to avoid or reduce these consequences.
The four remaining declarations were submitted by another member of NIRS, and a member of Public Citizen, Committee to Bridge the Gap, and Redwood Alliance. Each of these declarations contains four initial paragraphs stating the declarant‘s name, membership in one of the organizations, the organization‘s purpose, and the fact that the organization participated in the rulemaking at issue. The next paragraph of each states something substantially similar to “I regularly use public streets and highways in the State of California.” The final paragraphs are nearly identical: “I am concerned that allowing the unregulated transportation of radioactive material may expose me to adverse health consequences without my knowledge and without my ability to avoid or reduce these consequences.” These five declarations are the only evidence NIRS offers in support of its standing.
C
We turn first to the injury-in-fact inquiry, which is dispositive of this appeal. NIRS claims that NRC failed to follow NEPA procedural rules that required it to prepare an EIS. This type of procedural injury can form the basis of standing. Ashley Creek, 420 F.3d at 938 (recognizing
In addition to a procedural violation, for Article III purposes, the plaintiff must assert “‘a concrete’ interest—such as an aesthetic or recreational interest—that is threatened by the proposed action:” City of Sausalito, 386 F.3d at 1197; see also Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130 (requiring not only a threat to a listed species but also affidavits or evidence “showing, through specific facts” that one of the organizations’ members would be “‘directly’ affected apart from their special interest in th[e] subject” (alteration in original) (internal quotation marks omitted) (quoting Sierra Club, 405 U.S. at 735, 739, 92 S.Ct. 1361)). “A free-floating assertion of a procedural violation, without a concrete link to the interest protected by the procedural rules, does not constitute an injury in fact.” Ashley Creek, 420 F.3d at 938; see also Lujan, 504 U.S. at 572-73 nn. 7-8, 112 S.Ct. 2130. As we explained in Citizens for Better Forestry, “environmental plaintiffs must allege that they will suffer harm by virtue of their geographic proximity to and use of areas that will be affected by the [agency‘s] policy.” 341 F.3d at 971 (emphasis added). For example, in a case where the plaintiff averred that his respiratory discomfort would be aggravated by emissions from developments on former Bureau of Land Management lands, we held that “evidence of a credible threat to the plaintiff‘s physical well-being from airborne pollutants falls well within the range of injuries to cognizable interests that may confer standing.” Hall, 266 F.3d at 976 & n. 6 (noting that “credible threats” included “increased traffic, pollution, and noise,” as well as “increased auto emissions” (internal quotation marks omitted)).
To show a “geographic nexus,” petitioners claiming a violation of NEPA must allege that they will suffer harm as a result of their proximity to the area where the alleged environmental impact will occur. We have defined the geographic nexus requirement broadly to permit challenges to actions with wide-reaching geographic effects where the petitioners properly allege, and support with affidavits, that they use the impacted area, even if the impacted area is vast. See Citizens for Better Forestry, 341 F.3d at 971 (holding that “Citizens need not assert that any specific injury will occur in any specific national forest that their members visit,” where they “properly alleged, and supported with numerous affidavits” their members’ use and enjoyment of a “vast range of national forests“); see also Defenders of Wildlife, 420 F.3d at 957 (holding that the injury-in-fact requirements were met in a Clean Water Act case affecting the state of Arizona where petitioners mentioned “specific subareas within the state” and noting that “alleging an injury-in-fact covering large areas within the state simply reflects the relatively broad nature of the potential harm“); Res. Ltd., Inc. v. Robertson, 35 F.3d 1300, 1303 (9th Cir.1993) (holding that the plaintiffs had standing to sue to challenge a “forest-wide” plan, despite their “inability to point to the precise area of the park where their injury will occur“).
This is not a case like Public Citizen or Hall where the petitioner has shown that the regulation will lead to increased exposure to pollutants and an adverse effect on health. NIRS fails to explain why the new, on average more protective, regulation presents a credible threat to its members’ health. The NIRS member who comes closest to establishing a concrete injury is the truck driver who states that he transports waste material from industrial sites to disposal sites and that he has transported radioactive material in the past. We recognize the possibility that this transport worker may be required to transport “unregulated” radioactive mate
NIRS fails to show that its members’ concrete interest is threatened by the challenged regulation, rather than by “unregulated transportation of radioactive material” in the abstract. The declarations simply express undifferentiated “concerns“—the same concerns about nuclear hazards shared by the public at large—and speculate that unregulated transportation of radioactive material in general—not this regulation in particular—may present unspecified threats to their health. This is quite unlike the interest shown in cases such as Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1352-53 (9th Cir.1994), where the affidavits of Salmon River Concerned Citizens (SRCC) members stated in great detail how their health and ability to use national forests would be adversely affected by pesticide use, and Citizens for Better Forestry, 341 F.3d at 971, where Citizens had alleged that they would suffer harm and properly supported the allegation “with numerous affidavits covering a vast range of national forests around the country.” As the members here have not shown that their interests are directly affected or threatened, they are in the same position as plaintiffs “raising only a generally available grievance about the government” and “seeking relief that no more directly and tangibly benefits [them] than it does the public at large” that Lujan indicates do not satisfy Article III‘s case or controversy requirement. See 504 U.S. at 573-74, 112 S.Ct. 2130. In short, NIRS fails to meet the constitutional minimum that a concrete interest—in its members’ health or freedom from increased exposure to radiation—is threatened by the exemption regulations.
NIRS‘s interest (even if sufficiently concrete) in the health of its members also appears to be served, not harmed, by the enactment of the new regulations. Average radiation doses under the new regulations are less than they were under the prior 70 Bq/g scheme. In contrast, in cases where we have found a “reasonable probability” of harm, the challenged rule has been less protective of the environment than the regime it replaced. See, e.g., Citizens for Better Forestry, 341 F.3d at 972 (holding that environmental plaintiffs had established reasonable probability where “the 2000 Plan Development Rule decreases substantive environmental requirements (thus injuring their concrete interest in enjoying the national forests) as compared to the 1982 Plan Development Rule“); Salmon River, 32 F.3d at 1349-51 (explaining that the challenged policy permitted use of herbicides in regional forests for the first time).
NIRS‘s argument that it need not show the rule causes more injury than the previous rule, because environmental impacts may be significant even when an action is on balance beneficial, is unavailing. Regardless whether NEPA defines “significant” as including actions with a beneficial impact,
NIRS‘s contention that some discrete radioactive isotopes will expose the public
Having not shown a concrete and particularized injury, NIRS has failed to establish its standing to challenge NRC‘s alleged NEPA violation.
D
NRC contends that NIRS‘s standing also fails on the redressability prong of Lujan because both the NRC and DOT rules implement the IAEA standards, and the DOT rule is not properly before us. NIRS counters that it need only show that if NRC is required to conduct an appropriate environmental analysis, such analysis could result in a different exemption rule or no exemption. Further, NIRS contends that DOT‘s rulemaking activity is before the court in the consolidated appeal and, because NRC‘s environmental analysis was the basis for both NRC and DOT‘s rulemakings, setting aside NRC‘S NEPA investigation would remedy NIRS‘s substantive challenge to the DOT rule.
Redressability depends on whether the court has the ability to remedy the alleged harm. Hall, 266 F.3d at 975. In most NEPA cases, a petitioner “who asserts inadequacy of a government agency‘s environmental studies ... need not show that further analysis by the government would result in a different conclusion. It suffices that ... the [agency‘s] decision could be influenced by the environmental considerations that [the relevant statute] requires an agency to study.” Id. at 977 (emphasis added) (citation omitted).
However, this is not the usual NEPA case. The parties agreed at oral argument that NRC licensees are required to follow DOT‘s regulations for the transportation of nuclear material.
As neither injury in fact nor redressability has been established, we dismiss NIRS‘s petition for lack of standing.
PETITION DISMISSED.