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October 27, 1982

Drew LEWIS, et al., Defendants

The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge.

 In this action, the plaintiff, National Tank Truck Carriers, Inc. (NTTC), seeks to invalidate a rule promulgated by the Secretary of the Department of Transportation (Secretary) governing the level of insurance to be purchased by motor carriers of gasoline. Specifically, NTTC seeks the imposition of a rule requiring that carriers of gasoline purchase the higher of two statutorily prescribed levels of insurance, rather than the lower level mandated by the Secretary's current rule. The case is now before the Court on the Secretary's motion to dismiss for lack of standing.


 Section 30(b) of the Motor Carrier Act of 1980 (MCA), P.L. 96-296, reported as an amendment to 49 U.S.C. § 10927 (Supp. IV 1980), requires the Secretary to establish "minimal levels of financial responsibility" -- i.e. minimum insurance levels -- for motor carriers carrying certain hazardous substances. The section sets forth two levels: Under subsection (b) (2) a minimal level of $5,000,000 is required for items on a list of extraordinarily hazardous substances, while under subsection (b) (3) a lesser minimal level of $1,000,000 is required for any hazardous "material, oil, substance, or waste not subject to the provisions" of subsection (b) (2).

 Pursuant to the statute's command, the Secretary promulgated a rule, 49 C.F.R. § 387.9, establishing the two-tiered insurance requirements. He also defined with particularity, by referring to other Department of Transportation regulations, the items requiring the higher level of insurance under subsection (b) (2). Gasoline was not among the items requiring the higher insurance level. NTTC challenges the Secretary's decision to require the lower level of insurance, $1,000,000, rather than $5,000,000, for the carriers of gasoline.

 The key issue in the present motion is whether the imposition of the lower level of insurance will inflict upon NTTC and its members injury of a sort sufficient to confer standing to challenge the Secretary's regulation. In its amended complaint, NTTC outlined five forms of injury that it and its members will suffer. First, NTTC contends that the lower level of insurance will foster a poor safety record in the carrier industry, ultimately leading to higher insurance rates for all carriers, including NTTC's members. Second, because the lower level is inadequately low, the carriers who choose to insure at that level will be unable to adequately compensate potential victims in case of accident. The inability to adequately compensate will harm the reputation of all carriers in the industry, including NTTC's members, and, third, will eventually lead to a backlash of increased regulation burdening all carriers, including NTTC's members. Fourth, since NTTC's members share common loading racks, unloading facilities, roads, etc., with the minimally insured carriers, it is especially likely that NTTC's member-carriers will be the inadequately compensated victims in case of accident. Fifth, a lower level of insurance, by decreasing the cost of business, will increase competition, forcing NTTC's members to cut profits or insure at the lower level which NTTC feels is inadequate.

 The Secretary has moved to dismiss for lack of subject matter jurisdiction, asserting that none of the injuries alleged is sufficient to confer upon NTTC standing to sue. The Court grants the Secretary's motion.


 A succinct definition of the concept of standing has eluded the many courts that have wrestled with the problem over the years. Recently, the Supreme Court in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982), reviewed its prior cases, and enunciated the standards that are to guide the courts in resolving future challenges to standing. Those standards emanate from two distinct sources: from the "case and controversy" requirement of Article III of the U.S. Constitution, and from judicially formulated prudential considerations.

 The constitutionally mandated component of standing was summarized in Valley Forge as follows:

At an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S. Ct. 1601, 1608, 60 L. Ed. 2d 66 (1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S. Ct. 1917, 1924, 1925, 48 L. Ed. 2d 450 (1976).

 Valley Forge, 102 S. Ct. at 758.

 Beyond these three constitutional requirements of actual or threatened injury, traceable injury, and redressability, there exist the two prudential requirements imposed not by the constitution but by the courts. First, the plaintiff must assert his own legal rights, not those of a third party, Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975), and, second, the plaintiff's claim must fall within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data ...

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