In Conservation Law Foundation, Inc. v. Academy Express, LLC, the Conservation Law Foundation brought a private right of action under the Clean Air Act, alleging that Academy Express, LLC, a bus company, allowed its vehicles to sit idle for excessive periods of time across Massachusetts and Connecticut. No. 20-10032-WGY (D. Mass. 2023). On appeal, the First Circuit decided an interesting question regarding standing: whether smelling odor from vehicle fumes was sufficient to confer standing to sue a particular bus company. The First Circuit said it was and so allowed the case to proceed.

Before the Massachusetts District Court, the Foundation alleged violations of the State Implementation Plans of Massachusetts and Connecticut, which have provisions expressly prohibiting vehicle idle time longer than several minutes. The Foundation claimed its members suffered injuries-in-fact because they breathed in the vehicle emissions and because they became concerned about future health effects.

The District of Massachusetts dismissed the case for lack of standing. The Court held that the alleged injuries are too vague and conjectural to establish injury-in-fact. The members did not allege they suffer from associated medical illness, nor is their future concern tied to any specific illnesses. The Court further held that these injuries were not fairly traceable to Academy Express, whose buses are among the thousands of vehicles that all contribute to odors and emissions in the region.

On appeal, the First Circuit reversed, holding the standard applied by the District of Massachusetts was too stringent. The Court explained that breathing and smelling polluted air qualify as injury-in-fact even without documented medical issues. The Court reasoned that standing can be based on injuries recognized at common law, and courts have long held that mere exposure to pollutants can qualify as a nuisance. The Court noted that its holding is in accord with caselaw in other circuits—the Second, Fifth, Seventh, and Ninth—that have decided this issue. Moreover, fear of the impact of pollution also qualifies as injury in fact, so long as that fear is reasonable. Here, the Foundation’s members reasonably believed that excessive fume inhalation could cause future harm.

The Court also held that the injuries are fairly traceable to Academy Express, and the lower court’s holding otherwise contravened precedent. Although the buses of Academy Express are obviously not the only vehicles in Massachusetts and Connecticut to emit fumes and cause odors, they need not be. Traceability can be established if a defendant’s conduct is one of multiple causes of a plaintiff’s injury. The Court acknowledged that there must be some limits based on, among other things, geography and the dispersion of air pollution - a plaintiff hundreds of miles away from Academy Express operations could not plausibly allege injury. But the Court did not reach these issues, remanding the matter to the District Court to develop a more complete factual record.

This decision may have implications for establishing standing in environmental matters, particularly with respect to traceability. Indeed, the buses of Academy Express are one small sample of a vast array of sources (not just vehicles) that contribute to odors in Massachusetts and Connecticut, yet the First Circuit allowed the claims against the bus company to proceed. Although the First Circuit determined the lower court’s standard was too stringent, arguably the First Circuit’s standard is not stringent enough.

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