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EPA, Navistar Under Fire for Non-Compliant Engines

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By Brett Snider, Esq. on October 24, 2013 3:55 PM

Big rig diesel engines have the EPA and manufacturer Navistar frequently in front of the D.C. Circuit this October, with the court hearing arguments on Tuesday about the EPA's regulation of below-standard engines.

According to Overdrive, rival truck manufacturers Daimler, Mack, and Volvo argued before the Court that "the EPA wrongly granted Navistar permission to manufacture and sell non-compliant engines if they paid a fine."

This fine -- called a non-compliance penalty (NCP) -- allowed Navistar to put engines that didn't meet nitrogen emissions standards until the clean air act. What does the D.C. Circuit think of all this?

EPA Compliance Certificates are O.K.

The controversy centers around the EPA's 2012 decision to change its regulations to allow Navistar to continue to sell its engines -- which didn't conform to the Clean Air Act's emission standards for nitrogen oxides (NOx) -- so long as the company paid a maximum NCP of $1,919 per non-compliant engine.

The D.C. Circuit evaluated that new regulation in Mack Trucks Inc. v. EPA, and determined that the rule did not serve any public purpose -- and really no purpose other than to bail Navistar out -- and vacated the rule.

Quick on the follow-through, Daimler, Mack, and Volvo quickly filed a petition with the D.C. Circuit to have them review the four compliance certificates issued to Navistar under this now vacated EPA regulation, hoping the court would find them invalid.

Unfortunately for Navistar's competitors, the Court in Daimler Trucks v. EPA they lacked standing to challenge the EPA on the certificates, which would eventually be handled by the Agency's own revocation process.

Standing to Challenge Certificates

Appellate court petitioners -- and strangely their lawyers -- seem to get tripped up on this whole requirement of Article III standing. The last major case involving trucking regulation before the D.C. Circuit examined three different types of standing, but in Daimler, the petitioners lacked even one.

The problem here isn't that Daimler or its truck compadres lack interest in the outcome of this litigation, the problem is that the issue is already moot. The rule that allowed the certificates to be issued is vacated, and the 2012 model year is over, so the Daimler Court argued there's really nothing more than speculative redress that Daimler could hope to gain in this suit.

Cases where it's hard to see any actionable remedy -- like Nader's case involving past elections -- aren't exactly winners. The Daimler Court is willing to let the EPA's own revocation processes work out the issue of the 2012 certificates under the vacated regulation.

Not to mention that Daimler and friends have another case on the issue of the new EPA regulation that was in the D.C. Circuit's chambers for argument on Tuesday.

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