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, NRC No.

Petitioners,  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
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 Alliance (collectively NIRS) challenge the Nuclear Regulatory

Commission’s (NRC) rulemaking, which revised regulations

governing the exemption standards for the transportation of

radioactive material. NIRS argues that NRC failed to comply

with its obligations under the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332, by not preparing an Environmental 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 therefore dismiss NIRS’s petition for review. 

I

NRC and the Department of Transportation (DOT) coregulate the transportation of radioactive material in the

United States. NRC is authorized to regulate the use and posNUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8209
session of nuclear materials, which it does by prescribing regulations 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 promulgated 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 Understanding (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 materials, including radioactive materials, whereas NRC is responsible 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 regulates its licensees; and DOT “issue[s] complete and comprehensive 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 international regulations for the safe transportation of radioactive

material. The IAEA regulations were published in Regulations for the Safe Transport of Radioactive Materials, IAEA

Safety Series No. 6 (SS-6). As a Member State, the United

States harmonized its domestic regulations with the IAEA

1DOT is the “Competent Authority (the official U.S. representative

organization)” to the IAEA. NRC Final Rule, 69 Fed. Reg. 3,698. 

8210 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
standards. The IAEA periodically has revised SS-6 with “substantial input” from DOT, and, following each revision, DOT

and NRC have amended domestic regulations to make them

compatible with the IAEA standards. The latest significant

revision to the SS-6 was published in December 1996, and

redesignated TS-R-1 in June 2000. The principal change from

the prior IAEA regulations to TS-R-1 at issue in this case

involves radionuclide exemption values. 

Following the IAEA revisions, NRC and DOT began the

rulemaking process for revising domestic regulations on

exemption values to make them compatible with the new

IAEA standards — DOT with its IAEA Compatibility

Amendments and NRC with conforming amendments to its

Part 71 Regulations. See Compatibility with IAEA Transportation Safety Standards (TS-R-1) and Other Transportation

Safety Amendments; Final Rule, 69 Fed. Reg. 3,698 (Jan. 26,

2004) (to be codified at 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 concentration” 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 provisions); 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 transportation of low-radioactivity material from regulation. “Activity

concentration” refers to the number of nuclear disintegrations

per second in a gram of material and is commonly measured

NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8211
in Becquerels. A Becquerel is one radioactive disintegration

per second. This prior NRC/DOT standard, which was also

the pre-1996 IAEA standard, established 70-Becquerels per

gram (Bq/g) as the uniform activity concentration standard;

radioactive material with fewer than 70 disintegrations per

second in a gram was exempted from NRC regulation during

transport. 

In 1996, the IAEA determined that there was no technical

justification for the single activity concentration value of 70

Bq/g and concluded that the technically sound approach was

a dose-based standard, which it adopted. Dose depends not

only on the number of disintegrations per second but also on

the type and energy of the radiation emitted by a nuclear disintegration. Dose limits are expressed in “rems” or “millirems” (mrem). To develop the dose-based approach, the

IAEA used safety standards from a 1996 IAEA study — the

“BSS” study, Safety Series No. 115, International Basic

Safety Standards for Protection against Ionizing Radiation

and for the Safety of Radiation Sources. The BSS study used

a dose-based approach in fixed facility exposure scenarios, as

opposed to transport scenarios, and it calculated for each

radionuclide an exemption threshold that would limit an

effective annual dose to 1 mrem or less per year.2 The IAEA

researchers performed calculations on a subset of BSS scenarios and calculated the activity concentration for each of

twenty radionuclides that would result in a dose of 1 mrem

per year to transport workers in transportation scenarios. They

concluded that “[d]ue to differences in radionuclide radiation

emissions, exposure pathways, etc., the resulting

radionuclide-specific activity concentrations varied widely.”

69 Fed. Reg. at 3711. In other words, to obtain the 1 mrem

per year dose level, the activity concentrations for radionu2Although there is significant variation, “it has been estimated that the

average annual dose in the United States from natural background radiation is . . . around . . . 300 mrems . . . .” In re TMI Litig., 193 F.3d 613,

644 n.50 (3rd Cir. 1999). 

8212 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
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 allowable activity concentrations for various, commonly shipped

radionuclides. 

The IAEA found that the activity concentrations required in

transportation scenarios to limit the effective annual dose to

1 mrem were less than the BSS fixed facility values but not

by more than one to two orders of magnitude. This meant that

to meet the 1 mrem criteria, the transportation specific levels

would have to be more protective than the generic BSS levels.

The IAEA determined that the difference in dose between

fixed-facility and transport scenarios did not justify imposing

a different set of standards for fixed facilities and transportation exemptions, so 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: Compatibility 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.

3NRC reports the average as 25 mrem/yr in its Proposed Rule and 23

mrem/yr in its Final Rule. 

NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8213
44,360, 44,360-61 (July 17, 2000). Among other things, commenters 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 scientific consensus that low-dose radiation may be more harmful 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 proposed rule and held two public meetings. It received about

twenty comment letters addressing the proposal to adopt the

IAEA methodology for calculating exemption thresholds,

most of which opposed the change. These commenters,

including NIRS, objected to the dose levels in the proposed

rule and to NRC’s reliance on “unchallenged assumptions”

from the International Commission on Radiological Protection (ICRP) on the health risks of exposure to low doses of

radiation. 

NRC received two comment letters regarding the draft EA,

and comments from two speakers during the public meetings

about the draft EA. One commenter objected to any exemption of radionuclides, and the others argued that the EA

should have developed more quantitative data, particularly

with respect to exempt shipping volumes. 

NRC issued a final EA that found no significant environmental impact, and on January 26, 2004, NRC published a

Final Rule adopting the IAEA exemption values. The final

EA was substantially identical to the draft EA with respect to

the radionuclide exemption values. The EA explained that

“[t]he nature of the change makes it difficult to quantify the

safety impacts or benefits.” Because NRC lacked data on

exempt shipments, the EA analyzed data pertaining to regulated shipments contained in a 1985 report by Sandia National

Laboratories, which estimated the number of regulated (i.e.,

8214 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
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 projected 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 values that are lower than the current limit, there could

be a decrease in the number of exempted shipments

and a commensurate slight increase in the level of

protection. For radionuclides with new exemption

values that are higher than the current limit, there

could be an increase in the number of exempted

shipments and a commensurate slight increase in

associated radiation exposures. However, IAEA has

judged that this change would not significantly

increase the risk to individuals. 

In its Final Rule, NRC similarly concluded: “Because the

annual doses estimated to result from the use of the

radionuclide-specific exemption values are low, and on average are lower than the dose estimates for the current 70-Bq/g

[ ] activity concentration, NRC staff believes that changing

from the 70-Bq/g [ ] value to the radionuclide-specific exempNUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8215
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 finding of no significant impact (§ 1508.13), if the agency determines 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 environment”). 

On the same day, DOT issued a final ruling adopting Compatibility Amendments to the HMR to harmonize the regulations with the IAEA standards. See DOT Final Rule, 69 Fed.

Reg. 3,632. As a result of the amendments, the HMR now

defines “radioactive material” to mean “any material containing radionuclides where both the activity concentration and

the total activity in the consignment exceed the values specified” in the new dose-based tables. 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.

8216 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction pursuant 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)). Accordingly, we begin by addressing NIRS’s claim that it has standing to challenge NRC’s alleged non-compliance with NEPA.

A

[1] To determine whether a litigant has standing, we undertake two distinct inquiries. First, a plaintiff must meet Article

III’s case-or-controversy requirement, which provides a fundamental limitation on a federal court’s authority to exercise

jurisdiction. See DaimlerChrysler, 126 S. Ct. at 1860-61

(emphasizing the critical importance of the case-orcontroversy 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)

NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8217
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 analysis of Article III standing is “not fundamentally changed” by

the fact that a petitioner asserts a “procedural,” rather than a

“substantive” injury. City of Sausalito v. O’Neill, 386 F.3d

1186, 1197 (9th Cir. 2004). In a “procedural injury” case: 

to show a cognizable injury in fact, [a plaintiff] must

allege . . . that (1) the [agency] violated certain procedural rules; (2) these rules protect [a plaintiff’s]

concrete interests; and (3) it is reasonably probable

that the challenged action will threaten their concrete

interests. 

Id. (quoting Citizens for Better Forestry v. U.S. Dept. of

Agric., 341 F.3d 961, 969-70 (9th Cir. 2003)) (alterations in

original). “[A] cognizable procedural injury exists when a

plaintiff alleges that a proper EIS has not been prepared under

[NEPA] when the plaintiff also alleges a ‘concrete’ interest —

such as an aesthetic or recreational interest — that is threatened by the proposed action.” Id. (citing Sierra Club v. Morton, 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)). 

8218 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
To establish Article III standing, a plaintiff must also show

causation and redressability; however, “[o]nce a plaintiff has

established injury in fact under NEPA, the causation and

redressability requirements are relaxed.” Cantrell, 241 F.3d at

682; see also Hall v. Norton, 266 F.3d 969, 975 (9th Cir.

2001) (holding that “a plaintiff ‘seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs,’ . . . can establish standing

‘without meeting all the normal standards for redressability

and immediacy.’ ” (quoting Lujan, 504 U.S. at 572 & n.7)).

Instead, they “need only establish ‘the “reasonable probability” of the challenged action’s threat to [their] concrete interest.’ ” Id. at 977 (quoting Churchill County v. Babbitt, 150

F.3d 1072, 1078 (9th Cir. 1998), amended by 158 F.3d 491

(9th Cir. 1998)). 

If NIRS’s members meet the three-part test for constitutional standing, NIRS has organizational standing to represent

their interests. Defenders of Wildlife v. EPA, 420 F.3d 946,

956 (9th Cir. 2005). “An association has standing to bring suit

on behalf of its members when its members would otherwise

have standing to sue in their own right, the interests at stake

are germane to the organization’s purpose, and neither the

claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Laidlaw, 528 U.S.

at 181 (citing Hunt v. Wash. State Apple Adver. Comm’n, 432

U.S. 333, 343 (1977)). 

[2] The second inquiry, if a plaintiff meets the constitutional standing requirements, is whether the plaintiff meets

the non-constitutional or prudential standing requirements;

this inquiry is “whether a particular plaintiff has been granted

a right to sue by the statute under which he or she brings suit.”

City of Sausalito, 386 F.3d at 1199. “Because NEPA does not

provide for a private right of action, plaintiffs challenging an

agency action based on NEPA must do so under the Administrative Procedure Act (‘APA’).” Ashley Creek, 420 F.3d at

939 (citation omitted). To meet the statutory requirements for

NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8219
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 protected by NEPA is environmental. Ashley Creek, 420 F.3d at

940. 

B

NRC argues that NIRS fails to meet the injury-in-fact

requirement of standing because NIRS complains in only the

most general terms that NRC’s new regulation may expose

members of the public to excessive radiation, but it points to

no concrete harm to particular persons. 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 briefing phase,” where standing was not at issue in earlier proceedings). 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 practices. 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 procedural injury because NRC failed to adhere to its NEPA obligations. 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

8220 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
U.S. at 561, and that “each element must be supported . . .

with the manner and degree of evidence required at the successive stages of the litigation,” id. NIRS submitted five brief

declarations in support of its standing. The first declaration

states in full:

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 regularly transported waste material from industrial sites

to disposal sites by truck. I have transported hazardous materials during the past six years. I have transported hazardous materials, including radioactive

materials, to disposal sites using public roads and

highways in the States of California and Nevada. 

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, Committee to Bridge the Gap, and Redwood Alliance. Each of these

declarations contains four initial paragraphs stating the declarant’s name, membership in one of the organizations, the organization’s purpose, and the fact that the organization

participated in the rulemaking at issue. The next paragraph of

each states something substantially similar to “I regularly use

public streets and highways in the State of California.” The

NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8221
final paragraphs are nearly identical: “I am concerned that

allowing the unregulated transportation of radioactive material may expose me to adverse health consequences without

my knowledge and without my ability to avoid or reduce

these consequences.” These five declarations are the only evidence NIRS offers in support of its standing.

C

[3] We turn first to the injury-in-fact inquiry, which is dispositive of this appeal. NIRS claims that NRC failed to follow

NEPA procedural rules that required it to prepare an EIS. This

type of procedural injury can form the basis of standing. Ashley Creek, 420 F.3d at 938 (recognizing that allegations that

an agency failed to comply with NEPA’s procedural requirement that an EIS consider alternatives could suffice as procedural 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 purposes, the plaintiff must assert “a ‘concrete’ interest — such

as an aesthetic or recreational interest — that is threatened by

the proposed action.” City of Sausalito, 386 F.3d at 1197; see

also Lujan, 504 U.S. at 562-63 (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

8222 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
plaintiffs must allege that they will suffer harm by virtue of

their geographic proximity to and use of areas that will be

affected by the [agency’s] policy.” 341 F.3d at 971 (emphasis

added). For example, in a case where the plaintiff averred that

his respiratory discomfort would be aggravated by emissions

from developments on former Bureau of Land Management

lands, we held that “evidence of a credible threat to the plaintiff’s physical well-being from airborne pollutants falls well

within the range of injuries to cognizable interests that may

confer standing.” Hall, 266 F.3d at 976 & n.6 (noting that

“credible threats” included “increased traffic, pollution, and

noise,” as well as “increased auto emissions” (internal quotation marks omitted)). 

[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 environmental impact will occur. We have defined the geographic

nexus requirement broadly to permit challenges to actions

with wide-reaching geographic effects where the petitioners

properly allege, and support with affidavits, that they use the

impacted area, even if the impacted area is vast. See Citizens

for Better Forestry, 341 F.3d at 971 (holding that “Citizens

need not assert that any specific injury will occur in any specific national forest that their members visit,” where they

“properly alleged, and supported with numerous affidavits”

their members’ use and enjoyment of a “vast range of national

forests”); see also Defenders of Wildlife, 420 F.3d at 957

(holding that the injury-in-fact requirements were met in a

Clean Water Act case affecting the state of Arizona where

petitioners mentioned “specific subareas within the state” and

noting that “alleging an injury-in-fact covering large areas

within the state simply reflects the relatively broad nature of

the potential harm”); Res. Ltd., Inc. v. Robertson, 35 F.3d

1300, 1303 (9th Cir. 1993) (holding that the plaintiffs had

standing to sue to challenge a “forest-wide” plan, despite their

“inability to point to the precise area of the park where their

injury will occur”).

NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8223
[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 nationwide. Nor have they alleged that they will be exposed to

increases in radiation or that they will curtail their use of public 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 established 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 established injury in fact where it alleged that its members lived

and worked in geographic areas most affected by increased

4Apart 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 evidence 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 evidence’ ” (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). 

8224 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
emissions, that they “will be exposed to such emissions, and

as a result may suffer adverse health effects,” and one member 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 former 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 testified that their “use has been curtailed because of their concerns about pollution, contaminated fish, and the like”). 

This is not a case like Public Citizen or Hall where the petitioner has shown that the regulation will lead to increased

exposure to pollutants and an adverse effect on health. NIRS

fails to explain why the new, on average more protective, regulation presents a credible threat to its members’ health. The

NIRS member who comes closest to establishing a concrete

injury is the truck driver who states that he transports waste

material from industrial sites to disposal sites and that he has

transported radioactive material in the past. We recognize the

possibility that this transport worker may be required to transport “unregulated” radioactive 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 generalized concern that “the unregulated transportation of radioactive 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 “unregulated transportation of radioactive material” in the

abstract. The declarations simply express undifferentiated

“concerns” — the same concerns about nuclear hazards

shared by the public at large — and speculate that unregulated

transportation of radioactive material in general — not this

NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8225
regulation in particular — may present unspecified threats to

their health. This is quite unlike the interest shown in cases

such as Salmon River Concerned Citizens v. Robertson, 32

F.3d 1346, 1352-53 (9th Cir. 1994), where the affidavits of

Salmon River Concerned Citizens (SRCC) members stated in

great detail how their health and ability to use national forests

would be adversely affected by pesticide use, and Citizens for

Better Forestry, 341 F.3d at 971, where Citizens had alleged

that they would suffer harm and properly supported the allegation “with numerous affidavits covering a vast range of

national forests around the country.” As the members here

have not shown that their interests are directly affected or

threatened, they are in the same position as plaintiffs “raising

only a generally available grievance about the government”

and “seeking relief that no more directly and tangibly benefits

[them] than it does the public at large” that Lujan indicates do

not satisfy Article III’s case or controversy requirement. See

Lujan, 504 U.S. at 573-74. In short, NIRS fails to meet the

constitutional minimum that a concrete interest — in its members’ health or freedom from increased exposure to radiation

— is threatened by the exemption regulations. 

NIRS’s interest (even if sufficiently concrete) in the health

of its members also appears to be served, not harmed, by the

enactment of the new regulations. Average radiation doses

under the new regulations are less than they were under the

prior 70 Bq/g scheme. In contrast, in cases where we have

found a “reasonable probability” of harm, the challenged rule

has been less protective of the environment than the regime

it replaced. See, e.g., Citizens for Better Forestry, 341 F.3d at

972 (holding that environmental plaintiffs had established reasonable probability where “the 2000 Plan Development Rule

decreases substantive environmental requirements (thus injuring their concrete interest in enjoying the national forests) as

compared to the 1982 Plan Development Rule”); Salmon

River, 32 F.3d at 1349-51 (explaining that the challenged policy permitted use of herbicides in regional forests for the first

time). 

8226 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
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 standing requirement mandates that a petitioner show at least reasonable 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 members 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

NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8227
basis for both NRC and DOT’s rulemakings, setting aside

NRC’s NEPA investigation would remedy NIRS’s substantive 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] decision 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 regulations 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 (holding 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 cannot see how an order remanding to NRC would remedy the

asserted injury from the IAEA exemption standards because

8228 NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC
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. 

NUCLEAR INFORMATION AND RESOURCE SERVICE v. NRC 8229