Demonstrating standing can be challenging for plaintiffs in environmental cases. The issues are addressed in court decisions with some regularity – see here and here. A recent Tenth Circuit decision in UPHE v. Diesel Power Gear, LLC, involving Clean Air Act (CAA) allegations against modifications to vehicles – in CAA parlance, “mobile source” – provides interesting guidance into what plaintiffs need to allege to have standing, at least in the Tenth Circuit. The takeaway is that even though the impact of individual “defeat devices” on the environment might be small, courts may permit parties to bring claims about them in federal court.

In UPHE, Utah Physicians for Healthy Environment (UPHE), a non-profit based in Salt Lake City, alleged that “Diesel Brothers,” a conglomerate of Utah companies and individuals, were tampering with and removing required emission control devices and installing “defeat devices” on diesel trucks in violation of the CAA and Utah’s State Implementation Plan. Defeat devices are hardware or software changes that bypass or eliminate federally mandated pollution control equipment in vehicles. UPHE alleged that these modifications allowed for harmful pollutants to be released into the air in Utah’s Wasatch Front. UPHE’s lawsuit alleges that Diesel Brothers’ removal and tweaking of mandatory regulatory products have caused adverse health effects that include “impaired vision, reduced lung capacity, sinus irritation, and coughing spells.”

Diesel Brothers argued that they had not “meaningfully contributed” to the pollution, and therefore, UPHE did not have standing to bring claims against them in federal court because there was no “fairly traceable” link between the claimed harm and alleged conduct. Standing is granted when an individual has suffered an (1) ‘injury in fact’ that is both concrete and particularized and actual or imminent; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely as opposed to merely speculative, that the injury will be redressed by a favorable decision. Diesel Brothers’ argument was that UPHE could not show causation because the pollution from their diesel trucks was a minuscule percentage of the total pollution in this area. Specifically, Diesel Brothers stated that their trucks released just 0.02 tons of pollutants compared to the millions of tons of pollutants emitted from other sources like oil refineries and wildfires in the area.

The Court rejected Diesel Brothers’ “meaningful contribution” argument largely based on public policy concerns. If the Court adopted a “meaningful contribution” standard, this adoption would limit claims “against [only] the largest polluters,” which could have major effects on the CAA’s citizen-suit provision. Accordingly, the Court found standing because “those who reside in that area can fairly trace injuries they suffer from the polluted air to any contribution of prohibited emissions in the area.” This said, the Court imposed some important limits on standing in this context, specifically where claims arose in places geographically removed from the claimed harm. The Tenth Circuit stated that UPHE “does not have standing to bring its claims based on vehicles never driven in Utah or defeat devices sold to persons outside of Utah.”

We will keep an eye out for other Clean Air Act cases like Diesel Power Gear.