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
 3

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,”
 6

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.
 7

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.
 11

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.