George Berka v. NRC ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 21-1134 September Term, 2021
NRC-PRM-50-1117
Filed On: February 3, 2022
George Berka,
Petitioner
v.
U.S. Nuclear Regulatory Commission and
United States of America,
Respondents
PETITION FOR REVIEW FROM AN ORDER OF
THE NUCLEAR REGULATORY COMMISSION
BEFORE: Wilkins, Rao, and Jackson, Circuit Judges
JUDGMENT
This petition for review of an order of the Nuclear Regulatory Commission was
considered on the briefs and appendix filed by the parties. See Fed. R. App. P.
34(a)(2); D.C. Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the petition for review be dismissed.
Petitioner has not shown that he has Article III standing to challenge the Nuclear
Regulatory Commission’s denial of his petition for rulemaking. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992) (Article III standing requires a showing of a
particularized injury-in-fact, causation, and redressability). Petitioner’s asserted injury
based on climate change is not a particularized injury. See Ctr. for Biological Diversity
v. U.S. Dep’t of Interior, 563 F.3d 466, 478 (D.C. Cir. 2009) (stating that climate change
does not constitute a particularized injury in the absence of allegations showing that the
harm is “focused any more on [a petitioner] than it is on the remainder of the world’s
population”). Additionally, to the extent petitioner claims particularized injury resulting
from possible power outages during cold weather, he has not demonstrated injury that
is actual or imminent. See Public Citizen, Inc. v. Nat’l Highway Traffic Safety Admin.,
489 F.3d 1279, 1292 (D.C. Cir. 2007) (injury must be “distinct and palpable, as opposed
to merely abstract, and the alleged harm must be actual or imminent, not conjectural or
hypothetical”). Nor has petitioner demonstrated that the asserted injury is redressable
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 21-1134 September Term, 2021
by a favorable decision. Where redress “depends on actions by a third party not before
the court, the petitioner must demonstrate that a favorable decision would create a
significant increase in the likelihood that the plaintiff would obtain relief that directly
redresses the injury suffered.” Klamath Water Users Ass’n v. FERC, 534 F.3d 735, 739
(D.C. Cir. 2008) (internal quotation marks omitted). Here, petitioner has not
demonstrated that a favorable decision would create a significant increase in the
likelihood of third parties reopening a nuclear power plant that would prevent
interruption of power service to petitioner.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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