The Nuclear Information and Resource Service, Committee to Bridge the Gap, Public Citizen, Inc, and Redwood Alliance (collectively NIRS) brought suit against the Nuclear Regulatory Commission (NRC) claiming that, when NRC issued regulations governing exemption standards for the transportation of radioactive material, it failed to comply with the rulemaking requirements of the National Environmental Policy Act (NEPA).[1] NIRS alleged that NRC violated NEPA by making a finding of no significant impact (FONSI) without basis and consequently not preparing an Environmental Impact Statement (EIS). The Ninth Circuit dismissed the case without addressing the merits because NIRS failed to satisfy the injury-in-fact and redressability elements of Article III standing.

In July 2000, NRC and the Department of Transportation (DOT) began a rulemaking process for amending domestic regulations for the transportation of radioactive material such that they would be consistent with the international regulations adopted by the International Atomic Energy Agency (IAEA). NRC is authorized to regulate the use and possession of radioactive material.[2] DOT is authorized to designate hazardous material and prescribe regulations for the transportation of such material.[3] The regulations that were the subject of this case dealt with "exemption values"-standards whereby material is deemed "exempt" from nuclear transportation regulations if it is below the value or regulated it if it is above the value. NIRS challenged the NRC's revision from an "activity-concentration" to a "dose-based" standard for determining exemption values.[4]

After publishing an Issues Paper, soliciting written comments, holding three public meetings, subsequently publishing a notice of a proposed rulemaking and a draft environmental assessment (EA), and allowing for further public comment, NRC issued a final EA. Then, on January 26, 2004, NRC published a Final Rule adopting the new dose-based IAEA exemption values and making a finding of no significant impact in stating that the new rules would "result in no adverse impact on public health and safety."[5] That same day, DOT issued a final ruling that harmonized its regulations with the IAEA standards.[6]

On March 26, 2004, NIRS filed for review of the NRC rulemaking in the Ninth Circuit as permitted by the Hobbs Act.[7] On November 9, 2004, NIRS filed an action in district court seeking review of the DOT rulemaking. The next day it also filed a motion to transfer the NRC proceedings from the Ninth Circuit to district court, but the Ninth Circuit denied the request without prejudice. On January 10, 2005, DOT filed, in district court, a motion to dismiss for lack of subject matter jurisdiction pursuant to 49 U.S.C. § 20114(c). The district court granted the motion and the Ninth Circuit granted NIRS's appeal, consolidating the DOT case with the NRC case for oral argument and issuing two separate opinions.[8] This opinion dealt only with NRC's petition.

The Ninth Circuit began by identifying two inquiries necessary to address NIRS's claim that it had standing to challenge NRC's regulations under NEPA: 1) whether NIRS met the "case-and-controversy" requirement of Article III of the United States Constitution;[9] and 2) whether the plaintiff met the non-constitutional or prudential standing requirements; in other words, whether the statute under which the plaintiff brought the suit granted the plaintiff a right to sue.[10]

In regards to the first inquiry, the court laid out the requirements of Article III standing:

[A] plaintiff must show (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent . . . ; (2) the injury is fairly traceable to the challenged action of the defendant[s]; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.[11]

The court stated that the fact that the injury that NIRS asserted was procedural did not fundamentally change the standing analysis.[12] To establish a procedural injury "[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."[13] A proper injury exists when a plaintiff asserts that a proper EIS has not been prepared and the proposed action threatens a concrete interest, e.g., aesthetic or recreational interests.[14] The concrete interest test requires a "geographic nexus" between the area affected and the individual asserting the claim.[15] Once injury in fact is established under NEPA, the requirements for causation and redressability are relaxed.[16] Plaintiffs "need only establish 'the "reasonable probability" of the challenged action's threat to [their] concrete interest.'"[17] An association such as NIRS has standing to sue 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."[18]

In regards to the second inquiry-whether NIRS had a right to sue under a statute-the court pointed out that NEPA did not provide a private right of action. NIRS was therefore forced to rely instead on the Administrative Procedures Act (APA).[19] In order to meet the requirements of APA standing, a plaintiff "must establish (1) that there has been 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."[20]

The Ninth Circuit then applied the injury-in-fact test and determined that NIRS failed to meet the requirement. The declarations from NIRS's members did not "explain in any way how their health may be affected by this regulation."[21] They did not allege specific geographic areas most likely to be affected, except for mention of "highways nationwide."[22] Nor did they allege that they would be exposed to increased amounts of radiation or use the highways less because of the regulation.[23] The court held that "NIRS fails to explain why the new, on average more protective, regulation presents a credible threat to its members' health."[24] A "general concern" of exposure to radioactive materials that may result in adverse health consequences was not enough.

Furthermore, the Ninth Circuit held that NIRS failed to demonstrate that its members' concrete interest was "threatened by the challenged regulation" rather than by the abstract risks of exposure to "unregulated transportation of radioactive material."[25] The court contrasted this case with Salmon River Concerned Citizens v. Robertson,[26] in which the plaintiffs submitted affidavits that stated in great detail how pesticide use would adversely affect their health and ability to use the national forest.[27] Instead, this case was similar to Lujan v. Defenders of Wildlife[28] in which the plaintiffs raised "only a generally available grievance about the government" and sought "relief that no more directly and tangibly benefit[ed] [them] than it d[id] the public at large."[29] The court concluded that NIRS failed to meet the minimum of demonstrating that the exemption standards threatened a concrete interest of its members.

The court noted that, even if NIRS's interest was sufficiently concrete, the evidence suggested that this interest was helped rather than harmed by the new regulations-the average exposure to radiation would be lower under the new regulations. The court distinguished cases in which the court found a "reasonable probability" of harm due to the adoption of a less environmentally protective rule, because the new regulations appeared to be generally more protective.[30]

The court rejected NIRS's argument that, because NEPA does not require environmental impacts to be negative in order to be "significant,"[31] it did not need to demonstrate a "reasonable probability of a threat to a concrete interest."[32] NIRS pointed to no authority and the court did not know of any authority that stated a government action would harm a concrete interest when the action was beneficial to the plaintiffs.

The Ninth Circuit also rejected NIRS's contention that the new regulations would expose some of the public to more radioactivity. The court pointed out that this contention could have been more successful if NIRS had alleged and submitted affidavits which demonstrated that its own members would be exposed to greater radioactivity as a result of the regulation. "[T]he fact that unindentified members of the public may be exposed to a higher risk . . . does not [by itself] establish an injury to NIRS members."[33]

The court then held that NIRS also failed to establish the standing requirement of redressability because the Ninth Circuit could not, in this case, require DOT to revisit its parallel exemption standards even if it required NIRS to. NIRS argued that it was only required to show that NRC's performance of an EIS could result in a different exemption rule and, furthermore, because NRC's environmental analysis was the foundation for both the NRC and DOT rules, setting aside NRC's NEPA investigation would remedy NRC's challenge to the DOT rule as well. The court agreed that in a normal NEPA case the plaintiff need only show that "the [agency's] decision could be influenced by the environmental considerations that [the relevant statute] requires an agency to study."[34] However, this was not a normal NEPA case because, even if the court remanded the rule to the NRC, there was nothing that required DOT to revisit its identical exemption standards.[35] The court thus concluded that since the DOT rule was not before the court, it could not redress NIRS's asserted injury.

In conclusion, the Ninth Circuit held that NIRS failed to establish the Article III standing requirements of injury in fact and redressability. Therefore, the court dismissed the petition for lack of standing.