Nuclear Information & Resource Service v. Nuclear Regulatory Commission , 457 F.3d 941 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NUCLEAR INFORMATION AND 
RESOURCE SERVICE; COMMITTEE TO
BRIDGE THE GAP; PUBLIC CITIZEN, No. 04-71432
INC.; AND REDWOOD ALLIANCE,
Petitioners,  NRC No.
RIN 3150-AG71
v. OPINION
NUCLEAR REGULATORY COMMISSION,
Respondent.

Petition to Review a Decision of the
Nuclear Regulatory Commission
Argued and Submitted
May 16, 2006—San Francisco, California
Filed July 24, 2006
Before: Pamela Ann Rymer and Kim McLane Wardlaw,
Circuit Judges, and James V. Selna,* District Judge.
Opinion by Judge Rymer
*The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
8205
NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8209
COUNSEL
John Farrow, San Francisco, California, for the petitioners.
Grace H. Kim, Office of the General Counsel, Washington,
D.C., for the respondent.
OPINION
RYMER, Circuit Judge:
The Nuclear Information and Resource Service, Committee
to Bridge the Gap, Public Citizen, Inc., and Redwood Alli-
ance (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 National Environmental Protec-
tion Act (NEPA), 42 U.S.C. § 4332, by not preparing an Envi-
ronmental Impact Statement (EIS) and making a finding of no
significant impact (FONSI) without basis. We are obligated
before reaching the merits of NIRS’s NEPA challenge to
determine whether NIRS has standing to bring its complaint
in federal court. We conclude that it does not, and we there-
fore dismiss NIRS’s petition for review.
I
NRC and the Department of Transportation (DOT) co-
regulate the transportation of radioactive material in the
United States. NRC is authorized to regulate the use and pos-
8210 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
session of nuclear materials, which it does by prescribing reg-
ulations for its licensees’ packaging and transport of such
materials. See 42 U.S.C. § 2201(b); 10 C.F.R. § 71.0. DOT is
authorized to designate material as hazardous and to prescribe
regulations for the safe transportation of such material. 49
U.S.C. §§ 5103(a), (b)(1). Under this authority, DOT has pro-
mulgated its Hazardous Materials Regulations (HMR), which
regulate the shipment of radioactive materials, including
packaging, labeling, and notification, and which apply in
addition to NRC’s requirements for the shipment of nuclear
materials. 49 C.F.R. §§ 171-179. A Memorandum of Under-
standing (MOU) governs the respective responsibilities of
NRC and DOT. Transportation of Radioactive Materials;
Memorandum of Understanding, 44 Fed. Reg. 38,690 (July 2,
1979). As NRC summarizes the MOU, “DOT is responsible
for regulating safety in transportation of all hazardous materi-
als, including radioactive materials, whereas NRC is responsi-
ble for regulating safety in receipt, possession, use, and
transfer of byproduct, source, and special nuclear materials.”
Thus, DOT adopts regulations for all shippers and carriers of
hazardous materials, including safety standards for shipping
and packaging radioactive material; NRC develops safety
standards for packaging certain radioactive materials and reg-
ulates its licensees; and DOT “issue[s] complete and compre-
hensive Federal regulations for the packaging and
transportation of all radioactive materials as part of its overall
body of Federal regulations.” Id.
The United States is a member of the International Atomic
Energy Agency (IAEA),1 which, in 1961, adopted interna-
tional regulations for the safe transportation of radioactive
material. The IAEA regulations were published in Regula-
tions 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
1
DOT is the “Competent Authority (the official U.S. representative
organization)” to the IAEA. NRC Final Rule, 69 Fed. Reg. 3,698.
NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8211
standards. The IAEA periodically has revised SS-6 with “sub-
stantial 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 Transpor-
tation Safety Standards (TS-R-1) and Other Transportation
Safety Amendments; Final Rule, 69 Fed. Reg. 3,698 (Jan. 26,
2004) (to be codified at 10 C.F.R. pt. 71) (“NRC Final Rule”);
Hazardous Materials Regulations; Compatibility With the
Regulations of the International Atomic Energy Agency;
Final Rule, 69 Fed. Reg. 3,632 (Jan. 26, 2004) (to be codified
at 49 C.F.R. pts. 171-78) (“DOT Final Rule”). “Exemption
values” are the standards adopted for determining whether
nuclear material is subject to regulation during transport; if
the radioactivity of the material is below the exemption value,
then the material is “exempt” and not subject to regulation.
NIRS here challenges NRC’s change from an “activity con-
centration” to a “dose-based” standard for setting exemption
values. NRC Final Rule, 69 Fed. Reg. at 3,711-20, 3,765,
3,791; id. at 3,807-13 (setting forth the exemption provi-
sions); see also DOT Final Rule, 69 Fed. Reg. at 3,634-36,
3,656, 3,658.
Before adopting the regulation, NRC (and DOT) applied a
uniform “activity concentration” standard to exempt transpor-
tation 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
8212 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
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 dis-
integration. Dose limits are expressed in “rems” or “mil-
lirems” (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 scenar-
ios 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 radionu-
2
Although there is significant variation, “it has been estimated that the
average annual dose in the United States from natural background radia-
tion is . . . around . . . 300 mrems . . . .” In re TMI Litig., 193 F.3d 613,
644 n.50 (3rd Cir. 1999).
NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8213
clides 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 allow-
able 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 transporta-
tion exemptions, so it adopted the BSS values for transport in
TS-R-1. The IAEA’s calculations showed that using the BSS
exemption values for transport would yield a dose exceeding
1 mrem for some radionuclides and that the average annual
dose using the BSS exemption values would be approximately
23 mrem per year, in excess of the 1 mrem per year target.3
In comparison, the average annual dose for a transport worker
under the 70 Bq/g value was about 50 mrem per year.
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 10 CFR Part 71: Compati-
bility with ST-1—The IAEA Transportation Safety Standards
—And Other Transportation Safety Issues, Issues Paper, and
Notice of Public Meetings; Proposed Rule, 65 Fed. Reg.
3
NRC reports the average as 25 mrem/yr in its Proposed Rule and 23
mrem/yr in its Final Rule.
8214 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
44,360, 44,360-61 (July 17, 2000). Among other things, com-
menters responded that there was no safe radiation dose, that
the scientific materials IAEA used as a basis for its decision
were not publicly available, and that there was a growing sci-
entific consensus that low-dose radiation may be more harm-
ful than previously thought.
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 pro-
posed 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 Protec-
tion (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 exemp-
tion 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 environ-
mental 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 regu-
lated shipments contained in a 1985 report by Sandia National
Laboratories, which estimated the number of regulated (i.e.,
NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8215
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 more strictly regulated. The EA also
addressed isotopes with exemption levels that were much
higher under the new rule, and concluded that only two of
those isotopes “contribute 0.01 percent or more of the total
curie amount transported” and that those two were unlikely to
be shipped in exempt packages. The EA addressed plutonium
and neptunium — commonly transported isotopes affected by
the rule change — and noted that the new exemption levels
for both were 1 Bq/g or lower, making previously exempt
packages subject to regulation. The EA summarized the pro-
jected effect of the new exemption values as follows:
[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 val-
ues 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 aver-
age 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 exemp-
8216 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
tion 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 40 C.F.R.
§ 1501.4(e) (providing that the agency shall “[p]repare a find-
ing of no significant impact (§ 1508.13), if the agency deter-
mines on the basis of the environmental assessment not to
prepare a statement”); 40 C.F.R. § 1508.13 (defining a FONSI
as a document “briefly presenting the reasons why an action
. . . will not have a significant effect on the human environ-
ment”).
On the same day, DOT issued a final ruling adopting Com-
patibility Amendments to the HMR to harmonize the regula-
tions 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 contain-
ing radionuclides where both the activity concentration and
the total activity in the consignment exceed the values speci-
fied” in the new dose-based tables. 49 C.F.R. § 173.403. In
preparing its final amendment to the HMR, DOT relied on the
EA/FONSI issued by NRC. DOT Final Rule, 69 Fed. Reg. at
3,664; see 40 C.F.R. § 1501.5(a)(2) (permitting a lead agency
to supervise preparation of an EIS if multiple agencies are
involved in “a group of actions directly related to each other
because of their functional interdependence”).
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 28 U.S.C. § 2342(4) (providing for direct
review in the court of appeals).
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 April 13, 2005, without prejudice. On
January 10, 2005, DOT filed a motion to dismiss under Fed.
NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8217
Rawle Civ. P. 12(b)(1) for lack of subject matter jurisdiction pur-
suant to 49 U.S.C. § 20114(c), which the district court
granted. NIRS’s appeal from the district court’s dismissal was
consolidated with this case for purposes of oral argument and
is resolved in a separate opinion, Nuclear Information &
Resource Service v. Department of Transportation, ___ F.3d
___, No. 05-16327 (9th Cir. 2006).
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, 126 S. Ct. 1854,
1860 (2006) (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)). Accord-
ingly, we begin by addressing NIRS’s claim that it has stand-
ing to challenge NRC’s alleged non-compliance with NEPA.
A
[1] To determine whether a litigant has standing, we under-
take two distinct inquiries. First, a plaintiff must meet Article
III’s case-or-controversy requirement, which provides a fun-
damental 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 (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 (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)
8218 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
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 (citing Lujan, 504 U.S. at 560-
61); see also Allen v. Wright, 468 U.S. 737, 751 (1984).
The injury NIRS asserts is NRC’s failure to comply with
the requirements of NEPA. We have recognized that our anal-
ysis 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 pro-
cedural 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] when the plaintiff also alleges a ‘concrete’ interest —
such as an aesthetic or recreational interest — that is threat-
ened by the proposed action.” Id. (citing Sierra Club v. Mor-
ton, 405 U.S. 727, 738 (1972)). The “concrete interest” test
has been described “as requiring a ‘geographic nexus’
between the individual asserting the claim and the location
suffering an environmental impact.” Ashley Creek Phosphate
Co. v. Norton, 420 F.3d 934, 938 (9th Cir. 2005), petition for
cert. filed, 74 U.S.L.W. 3545 (U.S. Jan. 19, 2006) (No. 05-
1209) (quoting Cantrell v. City of Long Beach, 241 F.3d 674,
679 (9th Cir. 2001)).
NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8219
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 proce-
dural requirement the disregard of which could impair a sepa-
rate 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)).
Instead, they “need only establish ‘the “reasonable probabili-
ty” of the challenged action’s threat to [their] concrete inter-
est.’ ” Id. at 977 (quoting Churchill County v. Babbitt, 150
F.3d 1072, 1078 (9th Cir. 1998), amended by 158 F.3d 491
(9th Cir. 1998)).
If NIRS’s members meet the three-part test for constitu-
tional 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 participa-
tion of individual members in the lawsuit.” Laidlaw, 528 U.S.
at 181 (citing Hunt v. Wash. State Apple Adver. Comm’n, 432
U.S. 333, 343 (1977)).
[2] The second inquiry, if a plaintiff meets the constitu-
tional 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 Adminis-
trative Procedure Act (‘APA’).” Ashley Creek, 420 F.3d at
939 (citation omitted). To meet the statutory requirements for
8220 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
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 (1990)). It is well settled that the zone of interests pro-
tected 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. In response to NRC’s
challenge, NIRS addressed standing for the first time in its
reply brief. Nw. Envtl. Def. Ctr. v. Bonneville Power Admin.,
117 F.3d 1520, 1528 (9th Cir. 1997) (holding that petitioners
“were entitled to establish standing anytime during the brief-
ing phase,” where standing was not at issue in earlier proceed-
ings). NIRS’s members claim standing by virtue of their
status as members of the public with a common interest in
protecting public health from radioactive sources and prac-
tices. This interest, NIRS argues, gives rise to concerns that
the public, including transport workers, will be exposed to
excessive levels of radiation as a result of NRC’s rulemaking
proceeding, which relied upon NRC’s faulty environmental
investigation. NIRS contends that it asserts a cognizable pro-
cedural injury because NRC failed to adhere to its NEPA obli-
gations. Further, NIRS asserts that it has established a
geographic nexus because the exemption rules authorize
unregulated transport of radioactive waste on public roads
nationwide.
Lujan holds that “[t]he party invoking federal jurisdiction
bears the burden of establishing [the standing] elements,” 504
NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8221
U.S. at 561, and that “each element must be supported . . .
with the manner and degree of evidence required at the suc-
cessive stages of the litigation,” id. NIRS submitted five brief
declarations in support of its standing. The first declaration
states in full:
1. 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.
2. I am a member of Nuclear Information and
Resource Service.
3. In the course of my employment, I have regu-
larly transported waste material from industrial sites
to disposal sites by truck. I have transported hazard-
ous materials during the past six years. I have trans-
ported hazardous materials, including radioactive
materials, to disposal sites using public roads and
highways in the States of California and Nevada.
4. 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, Commit-
tee to Bridge the Gap, and Redwood Alliance. Each of these
declarations contains four initial paragraphs stating the declar-
ant’s name, membership in one of the organizations, the orga-
nization’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
8222 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
final paragraphs are nearly identical: “I am concerned that
allowing the unregulated transportation of radioactive mate-
rial 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 evi-
dence NIRS offers in support of its standing.
C
[3] We turn first to the injury-in-fact inquiry, which is dis-
positive 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. Ash-
ley Creek, 420 F.3d at 938 (recognizing that allegations that
an agency failed to comply with NEPA’s procedural require-
ment that an EIS consider alternatives could suffice as proce-
dural injury); Citizens for Better Forestry, 341 F.3d at 971
(holding that standing may hinge on the failure of an agency
to allow public input into the EA/FONSI process) (citing West
v. Sec’y of Dep’t of Transp., 206 F.3d 920, 930 n.14 (9th Cir.
2000)); see also Lujan, 504 U.S. at 573 n.8 (noting that a
plaintiff “assuredly can” enforce procedural rights).
[4] In addition to a procedural violation, for Article III pur-
poses, 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 (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).
“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. As we
explained in Citizens for Better Forestry, “environmental
NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8223
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 plain-
tiff’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 quota-
tion marks omitted)).
[5] 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 envi-
ronmental 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 spe-
cific 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”).
8224 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
[6] None of declarations submitted by members of NIRS,
Committee to Bridge the Gap, Public Citizen, or Redwood
Alliance explain in any way how their health may be affected
by this regulation.4 They have not alleged with any specificity
what geographic areas are most likely to be affected, other
than to assert that the regulations impact highways nation-
wide. Nor have they alleged that they will be exposed to
increases in radiation or that they will curtail their use of pub-
lic highways as a result of the regulation. Compare Laidlaw,
528 U.S. at 181-83 (holding that evidence that the plaintiff
avoided a river because of concerns about discharges estab-
lished injury in fact); Public Citizen v. Dep’t of Transp., 316
F.3d 1002, 1015-16 (9th Cir. 2003), rev’d on other grounds,
541 U.S. 752 (2004) (holding that Public Citizen had estab-
lished injury in fact where it alleged that its members lived
and worked in geographic areas most affected by increased
4
Apart from the members’ declarations, which we do consider, NIRS
presented extra-record evidence in support of its position on the merits
consisting of expert declarations, notices of proposals by other federal
agencies to deregulate radioactive materials, and radiation dose standards
of independent organizations. To the extent that it seeks to rely on this evi-
dence to show that radiation doses allowed under the rule are adverse to
public health and thus, that permitting these doses demonstrates injury in
fact, we decline to consider it because it was not presented to the agency.
In its brief on the merits NIRS relies on cases that address whether district
courts may properly consider extra-record evidence. Unlike a district
court, we cannot hold a hearing on new evidence or assess the credibility
of the experts. Cf. INS v. Ventura, 537 U.S. 12, 17 (2002) (per curiam)
(holding that remand to allow the agency to decide changed circumstances
in the first instance was required in part because the agency “can evaluate
the evidence” in light of its expertise); Kamara v. Attorney General, 420
F.3d 202, 218 (3rd Cir. 2005) (noting that taking judicial notice of new
country conditions not in the administrative record “ ‘not only carries with
it the potential for wholesale relitigation of many immigration-law claims,
but the Courts of Appeals are ill-equipped to receive supplementary evi-
dence’ ” (quoting Berishaj v. Ashcroft, 378 F.3d 314, 330 (3d Cir. 2004)));
Johnson v. United States, 426 F.2d 651, 656 n.8 (D.C. Cir. 1970) (en
banc) (per curiam), cert. granted, 400 U.S. 864 (1970), dismissed, 401
U.S. 846 (1971) (striking portion of appellate brief that included matter
outside the record).
NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8225
emissions, that they “will be exposed to such emissions, and
as a result may suffer adverse health effects,” and one mem-
ber stated that he monitored smog levels and “limit[ed] his
family’s outdoor recreational activity when such alerts occur”
(internal quotation marks omitted)); Hall, 266 F.3d at 976
(noting that Hall “averr[ed] that his respiratory discomfort
will be aggravated by emissions from developments on for-
mer BLM lands”), and Natural Res. Def. Council v. Sw.
Marine, Inc., 236 F.3d 985, 994 (9th Cir. 2000) (holding that
the plaintiffs had established injury in fact where they testi-
fied that their “use has been curtailed because of their con-
cerns about pollution, contaminated fish, and the like”).
This is not a case like Public Citizen or Hall where the peti-
tioner 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, reg-
ulation 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 trans-
port “unregulated” radioactive material, but he may have been
required to do the same under the old regulation. Further, he
does not specify the threat to his health from the change in
exemption standards at issue here; he simply states his gener-
alized concern that “the unregulated transportation of radioac-
tive materials may expose [him], as well as other members of
the public, to adverse health consequences.”
[7] NIRS fails to show that its members’ concrete interest
is threatened by the challenged regulation, rather than by “un-
regulated 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
8226 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
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 alle-
gation “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
Lujan, 504 U.S. at 573-74. In short, NIRS fails to meet the
constitutional minimum that a concrete interest — in its mem-
bers’ 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 rea-
sonable probability where “the 2000 Plan Development Rule
decreases substantive environmental requirements (thus injur-
ing 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 pol-
icy permitted use of herbicides in regional forests for the first
time).
NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8227
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, 40
C.F.R. §§ 1508.8(b), 1508.27(b)(1), the constitutional stand-
ing requirement mandates that a petitioner show at least rea-
sonable probability of a threat to a concrete interest. NIRS
points to no authority, and we have found none, holding that
there was a reasonable probability that government action
would harm a concrete interest when the action led to a result
that was beneficial to the petitioners.
NIRS’s contention that some discrete radioactive isotopes
will expose the public to higher risk under the new regulations
would have more force if NIRS had alleged, and submitted
affidavits demonstrating, that some of its members might be
exposed to those isotopes. But the fact that unidentified mem-
bers of the public may be exposed to a higher risk from the
few isotopes that are now less regulated does not establish an
injury to NIRS members where they have neither alleged nor
shown that they are at risk of being exposed to those isotopes.
[8] 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
8228 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
basis for both NRC and DOT’s rulemakings, setting aside
NRC’s NEPA investigation would remedy NIRS’s substan-
tive challenge to the DOT rule.
[9] 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] deci-
sion could be influenced by the environmental considerations
that [the relevant statute] requires an agency to study.” Id. at
977 (emphasis added) (citation omitted).
[10] 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. 10 C.F.R. § 71.5(a) (“Each licensee who transports
licensed material outside the site of usage, as specified in the
NRC license, or where transport is on public highways, or
who delivers licensed material to a carrier for transport, shall
comply with the applicable requirements of the DOT regula-
tions in 49 CFR parts 107, 171 through 180, and 390 through
397, appropriate to the mode of transport.”). Thus, even if we
were to set aside the current NRC rule and remand to NRC
with instructions that it prepare an EIS, nothing requires DOT
to revisit its identical exemption standards, which govern the
universe of NRC licensees. See Lujan, 504 U.S. at 568 (hold-
ing there was no redressability because the Secretary could be
ordered to revise his regulation “[b]ut this would not remedy
respondents’ alleged injury unless the funding agencies were
bound by the Secretary’s regulation, which is very much an
open question”). As NRC pointed out at oral argument, the
DOT rule would control even if the NRC rule was wiped off
the books. And the DOT regulation is not before us. We can-
not see how an order remanding to NRC would remedy the
asserted injury from the IAEA exemption standards because
NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8229
DOT would be under no obligation to reconsider its own,
identical rule.
[11] As neither injury in fact nor redressability has been
established, we dismiss NIRS’s petition for lack of standing.
PETITION DISMISSED.