On September 14, 2023, in Conservation Law Foundation v. Academy Bus, a Massachusetts District Court held that the members of the Conservation Law Foundation (the “Foundation”) lacked standing to challenge the idling of buses under the Clean Air Act (“CAA”).  Conservation Law Found. v. Acad. Express, LLC., No. 20-10032-WGY, 2023 WL 5984517, at *1 (D. Mass. Sept. 14, 2023). Specifically, the court held that simply breathing in polluted air, without any concrete injury that is fairly traceable to the defendant, is not sufficient to prove an actual injury under the CAA.

The question arose in the context of a suit against three companies operating buses in Massachusetts and Connecticut in which the Foundation alleged  that the defendants excessively idled their buses in violation of the State Implementation Plans (“SIPs”) approved by the EPA under the CAA. The Massachusetts SIP prohibits any person from unnecessarily running the engine of a vehicle when it is stopped for a foreseeable time exceeding five minutes. Similarly, Connecticut’s SIP prohibits excessive idling of a vehicle for more than three minutes. On specific days from October 2019 to February 2020, an investigator for the Foundation found that the defendants’ buses idled at bus stops from six minutes to over two hours.

Several of the Foundation’s members stated in affidavits that they noted the smell of exhaust around the bus stops and were concerned about the effects of exhaust on their health. For example, one member allegedly worried about the potential effects on his young son, who had a higher risk of developing respiratory illnesses, such as asthma. Other members described coughing when breathing in exhaust fumes and changing their recreational activities in areas with high vehicle exhaust.

Relevant case law holds that for an organization to have standing under Article III of the U.S. Constitution, among other things one or more of its members must (1) have suffered an injury in fact that is concrete, particularized and actual or imminent (2) that was likely caused by the defendant and (3) that would likely be redressed by judicial relief. The defendants moved for summary judgment arguing that the Foundation failed to identify any member who suffered an injury-in-fact that was fairly traceable to the defendants’ conduct. 

To prove the first prong, the member must have personally suffered some actual or threatened injury. While noting that other courts have held that simply breathing and smelling polluted air is an injury in and of itself, the Massachusetts court held that the requirement of an actual injury necessitates more; that there must be “associated physical side effects, recreational harm, or well-grounded fear of health effects” for there to be an injury in fact.  When reviewing the evidence, the court found that the only theme present across the claims was a generalized concern regarding adverse health effects. There appeared to be no evidence that any particular member’s respiratory concerns were directly tied air pollution, much less the exhaust from defendants’ idling buses.

The court also rejected the argument that the recreational harms alleged by members were sufficient to confer standing.  Standing requires a plaintiff to show that there is a causal connection between the challenged action and the identified harm. Although members alleged they experienced coughing when breathing in exhaust, or reduced their outdoor activities, the members did not specify that they did so specifically in response to the exhaust emitted at the defendants’ bus stops. The court explained that the casual connection in the standing inquiry is especially important in urban environments where a mile radius contains numerous vehicles and bus stops. Allowing such suit against the defendants opened the door to anyone suffering the most minor injuries who occasionally travelled within two miles of any Boston bus stop to sue the defendants. Thus, the court held that the connection between the members injuries and the defendants’ conduct was too attenuated to satisfy the second prong of the standing inquiry.

This case tackles a consistently problematic issue of standing under the CAA since air pollution comes from many different sources. The Massachusetts District Court in this decision clarified that simply breathing in polluted air without proof of an actual injury, recreational harm or well-founded fear of a health effect does not meet the actual injury requirement. Further, a plaintiff must allege an actual injury that is fairly traceable to the actions of the defendant to satisfy the second prong of the standing inquiry.

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