Dellums v. U.S. Nuclear Regulatory Com'n, 87-1531

• Decision Date: 16 December 1988
• Docket Number: No. 87-1531,87-1531
• Citation: 274 U.S.App.D.C. 279,863 F.2d 968
• Parties: Congressman Ronald V. DELLUMS, et al., Petitioners, v. U.S. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Advanced Nuclear Fuels Corporation, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 968

863 F.2d 968

274 U.S.App.D.C. 279

Congressman Ronald V. DELLUMS, et al., Petitioners, v. U.S. NUCLEAR REGULATORY COMMISSION and United States of

America, Respondents,

Advanced Nuclear Fuels Corporation, Intervenors.

No. 87-1531.

United States Court of Appeals,

District of Columbia Circuit.

Argued Oct. 3, 1988.

Decided Dec. 16, 1988.

Duane K. Thompson, with whom Stuart J. Land, Evan T. Bloom, Jonathan S. Berck, William L. Robinson and Eldon V.C. Greenberg, Washington, D.C., were on the brief, for petitioners.

John F. Daly, Atty., Dept. of Justice, and Rochelle M. Gunner, Atty., U.S. Nuclear Regulatory Com'n, with whom John R. Bolton, Asst. Atty. Gen., William H. Briggs, Jr., Sol., U.S. Nuclear Regulatory Com'n, E. Leo Slaggie, Deputy Sol., U.S. Nuclear Regulatory Com'n, and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the joint brief for respondents. Richard K. Willard, Asst. Atty. Gen., ^* William Kanter, Atty., Dept. of Justice, and C. Sebastian Aloot, Atty., Nuclear Regulatory Com'n, Washington, D.C., also entered appearances for respondents.

Harry H. Voigt, Leonard M. Trosten, Mindy A. Buren and Paul H. Falon, Washington, D.C., were on the brief for intervenor Advanced Nuclear Fuels Corp.

Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and MILTON POLLACK, ^** Senior District Judge, United States District Court for the Southern District of New York.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Concurring opinion filed by Senior District Judge MILTON POLLACK.

Opinion dissenting as to standing filed by Circuit Judge RUTH BADER GINSBURG.

SILBERMAN, Circuit Judge:

This is a petition for review of two final orders of the United States Nuclear Regulatory Commission ("NRC" or "Commission") that grant and decline to revoke, respectively, licenses to import uranium hexafluoride from South Africa. Petitioners, which include several members of Congress, ¹ three organizations opposed to apartheid and one concerned with nuclear proliferation, ² an exiled black South African anti-apartheid activist named Henry Isaacs, and an unemployed American uranium miner named Robert Chavez, ³ contend that these orders are contrary to provisions of the Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C. Sec. 5001, et seq. (Supp. IV 1986), and, therefore, not in accordance with law. 5 U.S.C. Sec. 706(2)(A) (1982). We conclude, however, that none of the petitioners has standing to maintain this suit, and we therefore dismiss the petition for review.

I.

On October 2, 1986, Congress passed the Comprehensive Anti-Apartheid Act of 1986 over the President's veto. The stated purpose of the Act is "to set forth a comprehensive and complete framework to guide the efforts of the United States in helping to bring an end to apartheid in South Africa and lead to the establishment of a non-racial, democratic form of government." 22 U.S.C. Sec. 5002. In order to register the United States' disapproval with the South African government and to pressure that government to negotiate about the dismantlement of apartheid, Congress included in the Act a series of economic sanctions against South Africa. Congress rejected a total trade embargo and instead imposed limited sanctions that, inter alia, minimized the potential adverse impacts on the United States economy. At issue in this case is one such provision, section 309 of the Act, 22 U.S.C. Sec. 5059, which prohibits the importation of uranium, coal, and textiles from South Africa. That section states:

Notwithstanding any other provision of law, no--

(1) uranium ore,

(2) uranium oxide,

(3) coal, or

(4) textiles,

that are produced or manufactured in South Africa may be imported into the United States.

22 U.S.C. Sec. 5059(a).

All parties wishing to import uranium must receive a license from the NRC. 42 U.S.C. Sec. 2092. In June 1987, the Commission granted petitioners leave to intervene in eight license proceedings before the NRC involving applications to import South African uranium hexafluoride. Petitioners also filed a separate petition seeking the revocation of eleven licenses to import uranium hexafluoride, which had been granted prior to the effective date of the Anti-Apartheid Act. The NRC issued two final orders on September 21, 1987, one covering the license application proceeding and the other covering the license revocation proceeding. 26 N.R.C. 109 (1987); 26 N.R.C. 123 (1987). The Commission determined that while section 309 prohibits the importation of uranium ore and uranium oxide, it does not extend the ban to other forms of uranium, such as uranium hexafluoride. ⁴

II.

Three standing requirements are derived from Article III of the Constitution. A plaintiff or petitioner must show that he has personally suffered a "distinct and palpable" harm that constitutes injury in fact, Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), that the injury "fairly can be traced to the challenged action," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976), and that the injury is "likely to be redressed by a favorable decision." Id. at 38, 96 S.Ct. at 1924. The latter two requirements of "causation" and "redressability" are often treated interchangeably by the Supreme Court, and we have recognized that they tend to merge in cases such as this one where the relief sought is only the cessation of the allegedly illegal conduct. D.C. Common Cause v. District of Columbia, 858 F.2d 1, 5 (D.C.Cir.1988); National Wildlife Fed'n v. Hodel, 839 F.2d 694, 705 (D.C.Cir.1988).

Despite this analytical framework, the guidance discernible from decisions of the Supreme Court on standing is less than pellucid. The Court has often imposed a heavy burden on plaintiffs to show a "substantial likelihood" that the relief sought would redress the alleged injury, see, e.g., Simon, 426 U.S. at 44-46, 96 S.Ct. at 1927-28, but on other occasions it has appeared to think that standing could be based on assertions of what one might consider an attenuated line of causation. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688-89, 93 S.Ct. 2405, 2416-17, 37 L.Ed.2d 254 (1973). ⁵ Cf. Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 77, 98 S.Ct. 2620, 2632, 57 L.Ed.2d 595 (1978) (affirming conclusion that there was "substantial likelihood" of indirect causation because district court was not clearly erroneous). The Court has declared that widely-held, non-quantifiable aesthetic and environmental injuries are sufficient to satisfy the Article III minimum,Sierra Club v. Morton, 405 U.S. 727, 734-41, 92 S.Ct. 1361, 1365-69, 31 L.Ed.2d 636 (1972), United States v. SCRAP, 412 U.S. at 687-89, 93 S.Ct. at 2415-17,Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230 n. 4, 106 S.Ct. 2860, 2866 n. 4, 92 L.Ed.2d 166 (1986), but it has found no standing when the only injury alleged is widely-held, non-quantifiable and of a political or ideological nature. United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216-27, 94 S.Ct. 2925, 2929-35, 41 L.Ed.2d 706 (1974). Although the Court has said that "standing concepts have gained considerable definition from developing case law," Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3323, 82 L.Ed.2d 556 (1984), we still struggle to interpret this puzzling--if not irreconcilable--precedent.

III.

A. The Organizational Petitioners

The four organizational petitioners in this case allege that they have standing to maintain this appeal because they represent members who are adversely affected by any weakening of the enforcement of the Anti-Apartheid Act. To satisfy standing requirements, an organization must show that "(a) its members would otherwise have standing to sue in their own right, (b) the interests that 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." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977).

Three of the four organizational petitioners make no attempt, however, to describe an individualized injury of the members of the organizations. It is clear that mere "interest in a problem" coupled with unfavorable government action is not sufficient to meet the injury in fact requirement of Article III. Capital Legal Foundation v. Commodity Credit Corp., 711 F.2d 253, 258 (D.C.Cir.1983); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972). Petitioner Nuclear Control Institute has alleged no particularized injury to its members. The interest of both the organization and its members in this litigation is only the generalized goal of "opposing nuclear proliferation and ensuring proper safeguards for nuclear energy." Even assuming the NRC's orders would adversely affect the Institute's general interest, this court has consistently held that harm to an interest in " 'seeing' the law obeyed or a social goal furthered" does not constitute injury in fact. See, e.g., American Legal Found. v. FCC, 808 F.2d 84, 92 (D.C.Cir.1987).

Two other organizational petitioners--the American Committee on Africa and The Washington Office on Africa--are interested primarily in promoting change in the racial policies of the South African government. Again, while all of the members of these organizations have a "sincere, vigorous interest in the action challenged," Capital Legal Foundation, 711 F.2d at 258, they have not alleged a "distinct and palpable harm" that will satisfy the injury-in-fact requirement. Petitioners allege that the members have suffered injury "at least equivalent" to those found sufficient in Japan Whaling Ass'n, 478 U.S. at 230 n. 4, 106 S.Ct. at 2866 n. 4...