American Chemistry Council v. Department of Transportation

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 20, 2006 Decided October 13, 2006

No. 03-1456

AMERICAN CHEMISTRY COUNCIL, ET AL.,

PETITIONERS

v.

DEPARTMENT OF TRANSPORTATION,

RESPONDENT

UTILITY SOLID WASTE ACTIVITIES GROUP, ET AL.,

INTERVENORS

Consolidated with

05-1191

On Petitions for Review of an Order of the

United States Department of Transportation

Paul M. Donovan argued the cause for petitioner. With him

on the briefs was Nicholas J. DiMichael.

William R. Weissman and Paul D. Ackerman were on the

brief for intervenors Utility Solid Waste Activities Group, et al.

Douglas H. Green entered an appearance.

2

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,” 49 U.S.C. § 5102(13),

which largely controls whether such materials will be subject to

federal regulation by the Department under the Hazardous

Materials Transportation Act, 49 U.S.C. § 5101, et seq. Because

the associations have not demonstrated Article III standing

under the United States Constitution to bring their challenge, we

dismiss their petitions for review.

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 Nation adequately against the risks to life and

property which are inherent in the transportation of hazardous

materials in commerce.” Pub. L. No. 93-633, § 102, 88 Stat.

2156, 2156 (1975) (codified as amended at 49 U.S.C. § 5101);

see generally id. §§ 101-115, 88 Stat. at 2156-64 (codified as

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amended at 49 U.S.C. §§ 5101-5128). A key feature of the Act

is its broad mandate providing that the Secretary of

Transportation (the “Secretary”) “shall prescribe regulations for

the safe transportation, including security, of hazardous

materials in intrastate, interstate, and foreign commerce.” 49

U.S.C. § 5103(b)(1). The Department has done so, resulting in

the Hazardous Materials Regulations (“HMR”), found at 49

C.F.R. parts 171-180. This case involves continued efforts by

the Department to comply with that mandate and develop

regulations seeking to ensure “safe transportation.” 49 U.S.C.

§ 5103(b)(1).

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

4

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.

Id. § 5103(b)(1) (emphasis added). Thus, as the name of the Act

suggests and the terms of the Act provide, the Department’s

regulatory authority under the Act often begins—and

ends—with the phrase “transportation in commerce.” See also

id. (“[t]he Secretary shall prescribe regulations for the safe

transportation . . . in . . . commerce”) (emphasis added). This

case focuses on the former term, transportation, as opposed to

commerce. The Act defines “transports” or “transportation” as

“the movement of property and loading, unloading, or storage

incidental to the movement.” Id. § 5102(13).

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.” Id. The Department requested

5

comments from the public in its Advanced Notice, held a series

of public meetings, [66 Fed. Reg. 32420, 32420] sought further

comments on approaches to defining “transportation,” see

Supplemental Advance Notice of Proposed Rulemaking,

Applicability of the Hazardous Materials Regulations to

Loading, Unloading, and Storage, 64 Fed. Reg. 22718, 22719-23

(Apr. 27, 1999), and then proposed “a list of specific functions

to which the HMR apply and . . . the types of persons or entities

responsible for compliance with the HMR,” Notice of Proposed

Rulemaking, Applicability of the Hazardous Materials

Regulations to Loading, Unloading, and Storage, 66 Fed. Reg.

32420, 32421 (June 14, 2001).

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, Pub. L. No.

107-296, § 1711(a), 116 Stat. 2135, 2319 (2002). Section

5103(b)(1) thus directs the Secretary to “prescribe regulations

for the safe transportation, including security, of hazardous

material,” id. (emphasis added), and to ensure that such

regulations “govern safety aspects, including security, of the

transportation of hazardous material the Secretary considers

appropriate,” id. § 5103(b)(1)(B) (emphasis added). The

Department first issued its long-coming rule on October 30,

2003. Final Rule, Applicability of the Hazardous Materials

Regulations to Loading, Unloading, and Storage, 68 Fed. Reg.

61906 (Oct. 30, 2003) (the “October 2003 Rule”). As relevant

here, the Department sought to interpret the meaning of the

statutory term “transportation,” see 49 U.S.C. § 5102(13)

(“‘transportation’ means the movement of property and loading,

unloading, or storage incidental to the movement”), by defining

four related terms: the “pre-transportation function,” “loading

incidental to movement,” “unloading incidental to movement,”

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and “storage incidental to movement.” 68 Fed. Reg at 61907.1

Several parties filed administrative appeals. The Department

denied several of the appeals, but made substantive revisions to

its rule in response to others. See Final Rule, Applicability of

the Hazardous Materials Regulations to Loading, Unloading,

and Storage, 70 Fed. Reg. 20018, 20020 (Apr. 15, 2005) (the

“Final Rule”).

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

1

The Act’s definition of “transportation” uses the phrase

“incidental to the movement” once, after the term “storage,” see 49

U.S.C. § 5102(13). The Department’s rule reads that phrase as

modifying, in addition to “storage,” both “loading” and “unloading.”

Thus, the Department sought to define “loading incidental to

movement,” “unloading incidental to movement,” and “storage

incidental to movement.” 68 Fed. Reg at 61907.

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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 unloaded immediately after movement is

completed is present during the unloading operation.

Id. at 20034 (codified at 49 C.F.R. § 171.8). The Department

defined “loading incidental to movement” to mean the “loading

by carrier personnel or in the presence of carrier personnel of . . .

hazardous material onto a transport vehicle . . . for the purpose

of transporting it.” 68 Fed. Reg. at 61940 (codified at 49 C.F.R.

§ 171.8). Finally, the Department determined “storage

incidental to movement” means

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

8

filed another petition for review of the Final Rule on June 8,

2005. We have jurisdiction to review petitioners’ timely

challenge pursuant to 49 U.S.C. §§ 5127(a), 20114(c) and 28

U.S.C. § 2342(7).2

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.

2

As noted, the Final Rule was issued in response to several

administrative appeals. Intervenor Utility Solid Waste Activities

Group brought one of those administrative appeals, see 70 Fed. Reg.

at 20020, while also intervening in the petition for review filed in No.

03-1456, which challenges the October 2003 Rule. “[O]ur cases treat

a petition for review filed during the pendency of a request for

administrative reconsideration as ‘incurably premature.’” Collins v.

Nat’l Transp. Safety Bd., 351 F.3d 1246, 1250 (D.C. Cir. 2003).

Because we conclude that no petitioner or intervenor has demonstrated

standing, a jurisdictional basis for dismissal, we need not reach a

holding on incurable prematurity. See, e.g., Hwang Geum Joo v.

Japan, 413 F.3d 45, 48 (D.C. Cir. 2005) (while “[t]he court must . . .

‘address questions pertaining to its or a lower court’s jurisdiction

before proceeding to the merits,’” the Supreme Court has “not

dictate[d] a sequencing of jurisdictional issues”) (quoting Tenet v.

Doe, 544 U.S. 1, 6 n.4 (2005), and discussing Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83 (1998)) (quotation marks omitted).

9

“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

(1892), a showing of standing ‘is an essential and unchanging’

predicate to any exercise of our jurisdiction.” Florida 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

(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 (1996) (quoting Hunt v. Wash.

State Apple Adver. Comm’n, 432 U.S. 333, 343 (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. “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

10

merely speculative, that the injury will be redressed by a

favorable decision.” Id. at 561 (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.

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A. The Department’s Alleged Failure to Preempt the Los

Angeles County Fire Code.

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

3

The declaration from Hasa states that the Violation Notice

“contained alleged violations 1 and 2, among others, which have all

now been corrected, requiring the construction of” the Barn. Id. ¶ 4.

The declaration does not explain why Hasa is still required to build the

Barn if “all” of the violations have “now been corrected.” Id. If all of

the violations at issue have since been corrected, Hasa’s injury might

be moot. We assume arguendo that the Los Angeles County Fire

Department is still requiring Hasa to build the Barn notwithstanding

the fact that all violations listed on the July 2, 2003 Violation Notice

have been corrected.

12

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)

13

(“[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

49 U.S.C. § 5102(13). Thus, even if that alleged injury were

otherwise sufficient to demonstrate Hasa’s standing, it would

not provide a basis for challenging the Department’s efforts to

define “pre-transportation function,” “loading,” and “storage.”

See 49 C.F.R. § 171.8.

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 (alterations and quotation marks

omitted). Petitioners have not demonstrated that the Department

is fairly responsible for Hasa’s injury and that if the Court sets

aside the Department’s Final Rule, it is likely that a future rule

promulgated by the Department would stop Los Angeles County

from requiring Hasa to build the Barn. Petitioners’ failure to do

so results from their failure to demonstrate that the local

regulations affecting Hasa would likely be subject to the Act’s

preemption provisions, set forth in 49 U.S.C. § 5125.

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]

14

political subdivision . . . and a . . . regulation prescribed under

this chapter . . . is not possible.” Id. (emphasis added).

Subsection (a)(1) also provides for preemption where “the

requirement of the State [or] political subdivision . . . , as

applied or enforced, is an obstacle to accomplishing and

carrying out . . . a regulation prescribed under this chapter.” Id.

(emphasis added). Subsection (b) calls for seemingly broader

preemption with respect to state or local efforts to regulate

specific, enumerated subjects. When subsection (b) applies,

state or local laws that are “not substantively the same,” id.

§ 5125(b)(1), as federal hazardous material law will be

preempted.4

4

Specifically, subsection (b)(1) applies to state or local

regulations that are “about any of the following subjects:”

(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.

15

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. 49 U.S.C. § 5125.” Petitioners’ Supp. Br. at 6. That

sentence, and another similar conclusory sentence, see id. at 4,

are petitioners’ only reference to the Act’s detailed preemption

provisions. Petitioners never explain how any of the preemption

provisions in § 5125 make it “likely,” see Defenders of Wildlife,

504 U.S. at 561, that Hasa would not have to construct the Barn

if the Court were to set aside the Department’s Final Rule.

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,” 49 U.S.C. § 5125(a)(1), to comply with

both Los Angeles’s requirement that Hasa build the Barn and the

Hazardous Materials Regulations. Nor have petitioners

developed a theory regarding why building the Barn would be

“an obstacle to . . . carrying out” the HMR. Id. § 5125(a)(2).

Petitioners similarly have not demonstrated that subsection (b)

would preempt Los Angeles’s ordinance, as none of the

enumerated subjects to which subsection (b) apply involve

unloading, see id. § 5125(b)(1) (reprinted in note 4), the subject

being regulated by Los Angeles County.

In any event, the Act provides that “the Secretary may

waive preemption” upon deciding that a state or local

49 U.S.C. § 5125(b)(1).

16

requirement “(1) provides the public at least as much protection”

as federal regulation and “(2) is not an unreasonable burden on

commerce.” Id. § 5125(e). The Secretary’s ability to waive

preemption constitutes yet another obstacle for petitioners to

overcome in demonstrating that preemption is likely. But

petitioners have made no argument or showing regarding the

likelihood of a waiver. Absent such a showing, petitioners’

broad assertion that these two provisions of the Los Angeles

County Fire Code would be preempted appears even more

“speculative.” Defenders of Wildlife, 504 U.S. at 561.

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, 292 F.3d

at 899), 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)).

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

17

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 then directed us to

comments in the record submitted to the Department by the

National Transportation Safety Board (“NTSB”) and suggest

that they demonstrate that the Department improperly

“assume[d] that the states and localities have regulations in

place that will provide the safety and security protections” that

petitioners seek. Id. But, not surprisingly since the NTSB’s

comments were not written for the purpose of demonstrating

petitioners’ standing, petitioners have not been able to show how

those comments evidence that at least one of their members has

suffered an “actual or imminent, not conjectural or hypothetical”

18

injury because of this alleged regulatory void. Defenders of

Wildlife, 504 U.S. at 560 (quotation marks omitted).

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

19

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,” must sufficiently establish the imminent nature of the

harm to one of petitioners’ members, we hold that petitioners

failed to “supplement the record to the extent necessary to

explain and substantiate its entitlement to judicial review.”

Sierra Club, 292 F.3d at 900.

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

20

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, 506 U.S. at 564 n.2, 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 (1970) (finding competitor standing for data

21

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 (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 already lessened); Defenders of

Wildlife, 504 U.S. at 573 n.7 (noting that since “procedural

rights” are special, a “person who has been accorded a

procedural right to protect his concrete interests can assert that

right without meeting all the normal standards for redressability

and immediacy”); Hazardous Waste Treatment Council v. EPA,

861 F.2d 277 (D.C. Cir. 1988) (finding associational standing

since certain members of the organization submitted affidavits

to establish past and future economic harm).

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 hodge-podge 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-in-

fact. Nor have intervenors introduced arguments and evidence

22

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.

5

Intervenors also note that in Association of American

Railroads v. Costle, 562 F.2d 1310, 1311 (D.C. Cir. 1977), we

concluded an agency acted contrary to law in adopting an “artificially

narrow definition” of a statutory term. Id. We do not doubt that, as

in Costle, we may set aside an agency’s “misinterpret[ation] [of a]

clear statutory mandate to regulate” and may “direct that the [agency]

. . . promulgate standards in accordance with the statutory mandate.”

Id. at 1321. In this case, the Act directs the Secretary to promulgate

regulations that “shall govern safety aspects, including security, of the

transportation of hazardous material the Secretary considers

appropriate,” 49 U.S.C. § 5103(b)(1)(B) (emphasis added), which

might make it more difficult to show that the Department has acted

contrary to a “clear statutory mandate,” 562 F.2d at 1321, and, in any

event, emphasizes the need for petitioners to have demonstrated how

they have standing to challenge the Secretary’s failure to develop such

regulations. But before a party is entitled to the relief discussed in

Costle, it undoubtedly must establish its standing to seek such relief.

See Laidlaw, 528 U.S. at 185. Costle contains no discussion of

standing and is thus of limited relevance in determining whether

petitioners and/or intervenors have demonstrated standing.

23

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 (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

1

The petitioners are the American Chemistry Council; the

American Petroleum Institute; American Trucking Associations, Inc.;

Chlorine Institute, Inc.; the Compressed Gas Association; the National

Association of Chemical Distributors; the National Industrial

Transportation League; the National Paint and Coating Association;

National Tank Truck Carriers, Inc.; and the Synthetic Organic

Chemical Manufacturers Association. The petitioners’ brief states

that “[e]ach is a continuing association of numerous individual

companies, and each is operated for the purpose of promoting the

general commercial, professional, legislative, or other interests of their

respective memberships.” Petitioners’ Br. at ii. The intervenors are

the Edison Electric Institute, which represents investor-owned electric

2

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; Motor & Equipment Mfrs. Ass’n v.

Nichols, 142 F.3d 449 (D.C. Cir. 1996). Here, petitioners

maintain that (1) the rule fails to conform with congressional

intent, and (2) the Secretary, in promulgating the final rule,

failed to address comments raising material concerns. See Op.

at 8.

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

utility companies; the American Gas Association, which represents

natural gas utilities; the National Rural Electric Cooperative

Association; the American Public Power Association; and the Utility

Solid Waste Activities Group, which represents “approximately 80

individual electrical utilities.” Intervenors’ Br. at ii-iii.

3

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 & Commercial

Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544,

553 (1996); Hunt v. Wash. State Apple Adver. Comm’n, 432

U.S. 333, 343 (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 11, 16. 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.

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

(2004); Hazardous Waste Treatment Council v. EPA, 861 F.2d

270, 280-87 (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

4

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,” Joint Appendix (“J.A.”) at 314, commented that

regulatory gaps would result in compromised safety because the

Department has considerable expertise as to loading and

unloading that states and localities have not demonstrated; yet,

the ACC noted, no effort has been made by the Department to

assess the safety consequences of the lack of federal regulation.

Id. at 319-20. Petitioner National Association of Chemical

Distributors (“NACD”), stating that it “is the leading association

of chemical distribution companies in the United States,” noted

a “serious risk of safety and compliance gaps,” expressing

concern about an “incomprehensible patchwork of requirements

[by state and local governments that will] diminish safety and

slow . . . shipments.” Id. at 236-37 (emphasis added). The

NACD warned: “The result will be over-handling of hazardous

materials and more opportunities of accidents, incidents, and

injuries.” Id. at 237 (emphasis added). Petitioner Utility Solid

Waste Activities Group (“USWAG”), stating that its members

represent 85% of the total electric generating capacity in the

United States and service more than 95% of the nation’s

consumers of electricity and 93% of consumers of natural gas,

5

id. at 325, commented on the high costs of additional training

needed in order to comply with state and local requirements for

unloading, id. at 327-28. USWAG commented further that, in

the absence of federal regulation, transportation risk cannot fully

be controlled by relying on fixed-facility unloaders (who may

lack complete knowledge of each transport vehicle) or drivers

(who may lack complete knowledge of local requirements). Id.

at 331. Detroit Edison, a shipper and carrier and member of

USWAG, expressed concern about both the operational impact

of the absence of a federal standard on unloading and the costs

associated with training employees to comply with state and

local regulations as well as the impact of such costs and the

consequential costs of potential liability on its competitive

position. Id. at 310-12.

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 16-20, 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 15, and that there is no evidence

that one of petitioners’ members has, in fact, suffered an actual

injury caused by the rule, Op. at 16-20. The evidence of injury

can be found in the administrative record. See Petitioners’ Supp.

6

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 American 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.

Moreover, the contents of the administrative record

establish injury-in-fact that is imminent and non-conjectural and

satisfies the requirements of causation and redressability.

“Actual” injury is not necessary to demonstrate injury-in-fact.

See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 183 (2000) (finding the desire to

canoe nearby a polluted wastewater discharge “adequately

documented injury in fact” without the need to be injured by the

pollution); Defenders of Wildlife, 504 U.S. at 573 n.7 (“[U]nder

our case law, one living adjacent to the site for proposed

construction of a federally licensed dam has standing to

challenge the licensing agency’s failure to prepare an

environmental impact statement, even though he cannot

establish with any certainty that the statement will cause the

license to be withheld or altered, and even though the dam will

not be completed for many years.”); Ass’n of Data Processing

Serv. Orgs. v. Camp, 397 U.S. 150, 152 (1970) (finding

“competitor standing” where a Comptroller’s ruling “might

entail some future loss of profits” for petitioners). Although the

court professes not to be requiring evidence of actual injury, see

Op. at 20, its analysis suggests otherwise, as the court is

unbothered by the logical inevitability of injury to petitioners’

7

members. Indeed, as this court held in Hazardous Waste, “a

national trade organization of firms engaged in the treatment of

hazardous waste and the manufacture of equipment for that

purpose . . . has standing insofar as it represents members on

whom regulatory laxity may inflict environmental injury.” 861

F.2d at 280 (emphasis added). This is precisely the concern

expressed by industry in the administrative record here.

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, 49

U.S.C. § 1111(g); 49 C.F.R. § 831.2(c); see, e.g., Louisville &

Nashville R.R. Co. v. Sullivan, 617 F.2d 793, 797 (D.C. Cir.

1980), and “evaluat[ing] the adequacy of safeguards and

procedures for the transportation of hazardous material.” 49

U.S.C. § 1116. Following investigations of “hazmat” accidents

in 1998 and 1999, the NTSB urged the Secretary to complete

rulemaking as to “safety requirements for loading and unloading

hazardous materials.” J.A. at 211-12. The NTSB subsequently

reiterated this request, twice in 2001, because its review of

accidents led it to consider national standards “an essential part”

of effective regulation. Id. at 212. The NTSB employs

reasoning similar to that of petitioners, thereby underscoring the

gravity of their claims.

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

(1982); Flast v. Cohen, 392 U.S. 83, 99 (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

8

(or lack thereof) of a third party, leading to enhanced

requirements of causation and redressability. 504 U.S. at 562;

see Op. at 9, 13, 15, 16, 17-18, 20, 21 (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. Additionally, the court’s attempt to limit

its holding by stating it does not presume that petitioners would

be unable to show their standing to challenge the rule, Op. at

19-20, fails. Contrary to precedent, its analysis of why

petitioners have failed to show injury-in-fact disregards the

administrative record and establishes a heightened evidentiary

threshold.

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;

Sierra Club, 292 F.3d at 899-900.

Accordingly, because the administrative record

demonstrates that petitioners have standing to challenge the final

9

rule, I respectfully dissent.