Clean Air Act Citizen Suits Are Going Mobile

Last week, for the first time, a court of appeals upheld Article III standing and statutory authority in a citizen suit under the Clean Air Act (CAA) related to mobile sources. The CAA citizen suit provision, Section 304, allows “any person” to file a lawsuit in federal court for violation of an “emission standard or limitation,” if certain conditions are satisfied. In the past, CAA citizen suits were generally only brought against stationary sources.

However, in UPHE v. Diesel Power Gear, LLC, the US Court of Appeals for the Tenth Circuit held mobile source violations could be brought under the citizen suit provision. The Tenth Circuit largely upheld the US District Court of Utah’s ruling, which found that citizens could sue aftermarket automotive parts companies for violations of the CAA and the Utah State Implementation Plan for tampering with emissions controls and installing defeat devices. This holding may give greater impetus to CAA citizen suits related to mobile sources.

On appeal, the Tenth Circuit rejected the defendant’s challenge to the plaintiff’s Article III standing. Article III standing refers to the Constitutional requirement that federal courts are limited to adjudicating cases or controversies. Standing requires an injury in fact, causation, and redressability. The Tenth Circuit held the limited emissions impacts from the violations in the local airshed were fairly traceable to the plaintiff’s injuries. Thus, the plaintiff had standing to assert a citizen suit claim for the alleged violations. Importantly, however, the court of appeals limited standing to alleged violations in the plaintiff’s local area, finding that violations elsewhere did not satisfy the causation requirement.

The court also rejected the defendant's challenge to the plaintiff’s statutory standing. The defendant argued the prohibitions on tampering with emission control devices and installing “defeat devices” are not emission standards within the definition of the CAA citizen suit provision. The Tenth Circuit reviewed that argument only for “clear error” due to failure of defendants to raise the argument below. Subject to that limitation, the court of appeals reasoned CAA Section 304 authorizes suits regarding “defeat devices” and “tampering” violations as “relating to the operation of maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice, or operational standard.”

In its opinion, the Tenth Circuit disagreed with the Ninth Circuit’s analysis in a similar citizen suit standing case, In re Volkswagen, 894 F.3d 1030 (9th Cir. 2018), in which the Ninth Circuit concluded Section 203 CAA violations, including installing unlawful “defeat devices,” were generic statutory prohibitions and did not constitute an “emission standard or limitation.” The Tenth Circuit concluded that, due to defendant’s failure to raise the issue below, the court did not need definitively to resolve the question because there was no plain error in the district court’s interpretation of the CAA’s citizen suit provision.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.