Establishing Standing in Citizen Suits Under the Clean Air Act: Breathing Polluted Air May Not Suffice

Earlier this month, Judge William Young dismissed for lack of standing claims brought by the Conservation Law Foundation alleging that bus companies violated anti-idling regulations.  The opinion is important, because it does not make life easy for citizen plaintiffs and it provides something of a roadmap for defendants to follow in challenging plaintiffs’ standing.

The Court addressed both the injury in fact and traceability requirements.  Because the Court found that plaintiffs could not establish an injury in fact that was traceable to defendants’ conduct, it did not need to reach the redressability criterion.

First, with respect to injury in fact, the Court noted the following:

  • The “particularity” requirement means that the harm suffered by the plaintiff must be specific and different in kind than that suffered by the general populace.
  • The Court declined to follow other cases in which courts have held that merely breathing contaminated air constitutes injury in fact.

This Court holds that the requirement of an actual injury — one that is concrete and particularized — necessitates more than just breathing in polluted air.  Without any associated physical side effects, recreational or aesthetic harm, or well-grounded fear of health effects, this Court is not satisfied that breathing may constitute an Article III injury.

  • The court did find that two CLF members had established injury in fact, through statements that they recreated less due to concerns about air pollution near the defendants’ bus stops.

The real nail in the plaintiffs’ standing coffin was the Court’s conclusion that CLF could not establish that any injuries that its members suffered were in fact traceable to pollution from defendants’ idling buses.

  • At bottom, the Court found that CLF had failed “to show a sufficiently direct causal connection between the challenged action and the identified harm.” The CLF members said that they were bothered by vehicle exhaust, but the declarations did not establish that the exhaust that bothered them came from illegally idling buses.

These connections between the members’ injuries and the Bus Companies’ conduct are just too attenuated to satisfy the second prong of the standing inquiry. In an urban environment, a span of a mile or two contains numerous vehicles and bus stops. In such an environment, the injuries alleged cannot be conclusively linked to the excessive idling by the Defendants. Allowing suit against the Defendants for anyone suffering the most minor of injuries who has occasionally traveled within two miles of any bus stop could mean that every resident of the greater Boston area has standing to sue the Bus companies. This Court cannot find that this aligns with the Supreme Court’s guidance on standing.

What’s the lesson here?  At a certain level, it may be simply that size matters. If the defendant is a major stationary source and there’s modeling information about concentrations resulting from the source that are likely impacting potential plaintiffs, it’s going to be easier to establish standing than it was in this case.  Either way, whether you are a potential plaintiff or a potential defendant, this case warrants careful reading.

One thought on “Establishing Standing in Citizen Suits Under the Clean Air Act: Breathing Polluted Air May Not Suffice

  1. Seems like a narrow reading of standing requirements where a)the idling regs were clearly violated, b)Boston in general has severe air pollution conditions, c)proof of causation should be relaxed since it would be nearly impossible to prove in an urban environment that a particular bus or bus company caused pollution that affected a pedestrian, but every idling bus contributes to the ambient pollution ,and d)citizens suits like this one should be encouraged where the regulators fail to step in to remedy what is clearly a city-wide problem as anyone can attest who has attended a concert, a Red Sox ballgarme or walked through the Christian Science plaza next to which idling busses frequently park.

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