A recent federal court decision in Utah renews the question of whether defeat device and tampering prohibitions constitute “an emission standard or limitation”.
A non-profit citizen group, Utah Physicians for a Healthy Environment, is seeking nearly US$1.5 million in costs and attorneys’ fees after successfully prosecuting a citizen action in Utah federal court for violations of the defeat device and tampering provisions of the Clean Air Act (CAA, or the Act).[i] Section 304 of the CAA authorizes persons to enforce compliance with “an emission standard or limitation” or an “order” issued by the US Environmental Protection Agency (EPA) or a state with respect thereto, after notice is provided and so long as the EPA or state is not already litigating an action to require compliance with the standard, limitation, or order.[ii]
Utah Physicians brought suit in 2017 against the hosts of Discovery Channel’s “Diesel Brothers” TV show and others, claiming the defendants violated the CAA and Utah’s State Implementation Plan (SIP) by illegally modifying and selling diesel trucks and selling aftermarket parts designed to evade emissions standards.[iii] After trial, the district court imposed collective civil penalties of more than US$850,000 on the defendants and permanently enjoined them from, inter alia, tampering with or defeating federally required emission control systems in diesel trucks and selling defeat parts.[iv] The court’s bench trial order approved a fee award and now the only remaining question is the reasonableness of the amount sought.[v]
The Utah Physicians case is one of the first to use Section 304 to enforce the defeat device and tampering prohibitions in the Act. Most non-government litigation that has arisen to date regarding alleged tampering or the alleged use of defeat devices has been pursued against OEMs under state consumer protection laws and/or the federal RICO statute. Utah Physicians presents the question whether there is a viable alternative path for pursuing alleged violations of defeat device and tampering prohibitions. Despite the outcome in Utah, there are legal and practical reasons to believe the holding will not have legs.
CAA § 203(a)(3) makes it unlawful for any person “to remove or render inoperative” any federally required emissions control device or design element or to install, sell, or offer to sell any part “where a principal effect … is to bypass, defeat, or render inoperative” a federally required emission control device or design element.[vi] A necessary threshold question for the viability of any CAA citizen suit is whether Section 203(a)(3)’s prohibitions qualify as “an emission standard or limitation” such that a person has the statutory right to sue.
The Utah federal district court answered that question in the affirmative, stating that Section 203(a)(3)’s defeat device and tampering prohibitions do constitute “an emission standard or limitation” to support a Section 304 citizen action.[vii] However, the district court provided little analysis for its finding and expressly acknowledged that while the defendants had challenged the plaintiff’s constitutional standing, they “did not challenge UPHE’s statutory standing to enforce Utah’s SIP or § 7522(a)(3).”[viii]
The Utah district court’s finding, however, conflicts with at least one other court. Specifically, the US Court of Appeals for the Ninth Circuit recently determined that none of Section 203’s prohibitions, including the defeat device and tampering prohibitions of Section 203(a)(3), constitute “an emission standard or limitation” that would support a Section 304 citizen action.[ix] Section 304(f) provides that for purposes of a citizen suit, the terms “emission standard or limitation” cover several categories, including inter alia, “a schedule or timetable of compliance,” and also in circular fashion, an “emission limitation, standard of performance or emissions standard.”[x] Section 302, which provides definitions for CAA terms more generally, defines the terms to mean “a requirement … which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under this chapter.”[xi]
According to the Ninth Circuit, neither the definition in Section 304’s citizen suit provision nor the statute-wide definition provided in Section 302(k) encompass “the generic statutory prohibitions in § .”[xii] According to at least the Ninth Circuit, Section 203(a)(3)’s defeat device and tampering prohibitions are not requirements that limit the quantity, rate, or concentration of emissions, and thus, are not standards, limitations, or orders within the meaning of the citizen suit provisions.[xiii]
The defendants in Utah Physicians are appealing to the US Court of Appeals for the Tenth Circuit but whether the statutory standing question will be raised and/or ruled upon is not known. Nevertheless, it would seem difficult for a district court decision, which admittedly did not analyze the statutory standing question, to gain much if any traction given the contradictory authority at the Circuit level. Moreover, as a practical matter, it seems unlikely the CAA’s citizen suit provision will become a significant source of private party litigation on defeat device or tampering matters given the inherent limitations on monetary recovery.
[i] See Pl.’s Mot. for Costs & Fees at 9, Utah Physicians for a Healthy Env’t v. Diesel Power Gear LLC, et al., Case No. 2:17-cv-32-RJS-DBP (D. Utah) (Dkt. #176, filed May 8, 2020).
[ii] 42 U.S.C. § 7604.
[iii] See Utah Physicians for a Healthy Env’t v. Diesel Power Gear LLC, et al., 374 F. Supp. 3d 1124, 1131 (D. Utah 2019).
[iv] See Bench Trial Order at 57-58, Utah Physicians for a Healthy Env’t v. Diesel Power Gear LLC, et al., Case No. 2:17-cv-32-RJS-DBP (D. Utah) (Dkt. #168, filed March 6, 2020).
[v] Id. at 56.
[vi] 42 U.S.C. § 7522(a)(3)(A), (B).
[vii] Bench Trial Order at 32, Utah Physicians for a Healthy Env’t v. Diesel Power Gear LLC, et al., Case No. 2:17-cv-32-RJS-DBP (D. Utah) (Dkt. #168, filed March 6, 2020).
[viii] Id. at 33 n.168.
[ix] In re Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liab. Litig., 894 F.3d 1030, 1041-1043 (9th Cir. 2018).
[x] 42 U.S.C. § 7604(f)(1).
[xi] 42 U.S.C. § 7602(k).
[xii] See In re Volkswagen 894 F.3d at 1041.
[xiii] See id. at 1042 (“[T]he United States sued VW for violations of statutory provisions that are not, and do not incorporate, “standard[s], limitation[s], or order[s]” within the meaning of § 7604(a)(1).”). Cf. Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., 541 U.S. 246, 253-254 (2004) (delineating differences between CAA “standards” and “means of enforcing standards” such as those encompassed within Section 203 for purposes of CAA preemption).