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Utah Physicians for a Healthy Environment v. Diesel Power Gear LLC

United States District Court, D. Utah

March 12, 2019


          Dustin B. Pead Magistrate Judge



         Plaintiff Utah Physicians for a Healthy Environment (UPHE) brought this citizen enforcement action under the Clean Air Act (CAA). UPHE claims Defendants-three businesses and four individuals-violated the CAA and federally-enforceable Utah State Implementation Plan Regulations relating to the installation, removal, operation, and sale of emission control devices on diesel vehicles.[1] UPHE filed four Partial Motions for Summary Judgment.[2] Defendants also moved collectively for summary judgment.[3] As explained below, Defendants' motion is denied. One of UPHE's motions is granted, one is denied, and two are granted in part and denied in part.


         Defendant B&W Auto is a used automobile dealership that sells and repairs trucks, with a focus on custom built diesel trucks.[4] Defendant David Sparks is owner and CEO of B&W Auto.[5]Sparks also started and is CEO of Defendant Diesel Power Gear (DPG), a “lifestyle brand company” which sells “apparel and accessories for the diesel truck lifestyle.”[6] Defendant Joshua Stuart is CFO and COO of DPG.[7] 4x4 Anything, a division of DPG, is a “drop shipment fulfillment online retailer.”[8] is an online diesel truck marketplace that was previously dismissed from this case. Stuart is CFO and COO of Defendant Keaton Hoskins was employed to provide sales and marketing services for from 2013 through 2015.[9]

         UPHE, a Utah-based non-profit organization, brought this suit asserting various CAA and Utah SIP claims against Defendants. UPHE claims Defendants modified diesel trucks in violation of emissions limitation standards, sold parts designed to evade emissions standards, and sold illegally-modified trucks. According to UPHE, Defendants' violations contribute pollution to air in the Wasatch Front, causing UPHE's members harm.[10]

         As redress for these violations, UPHE seeks injunctive relief and civil penalties. On June 8, 2018, the court entered a stipulated preliminary injunction enjoining B&W Auto and Sparks from violating several provisions of the CAA.[11]


         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[12] A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[13] A fact is material if, under the governing substantive law, it could “affect the outcome of the suit.”[14]When applying this standard, the court is to “view the evidence and make all reasonable inferences in the light most favorable to the nonmoving party.”[15] “Cross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.”[16]


         Defendants admit to conduct that violates the CAA but nevertheless move for summary judgment on all of UPHE's claims. They primarily argue UPHE lacks constitutional standing and that the individual Defendants cannot be held liable as “responsible corporate officers.” UPHE moves for summary judgment on various claims in four separate Partial Motions for Summary Judgment. The court takes up the threshold issues raised in Defendants' Motion before turning to UPHE's Motions.

         I. Standing

         Defendants argue UPHE lacks standing to bring its claims. To satisfy Article III of the Constitution, a plaintiff must have standing to bring a claim in federal court.[17] When the plaintiff is an association bringing suit on behalf of its members, it must show “[1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization's purposes, and [3] neither the claim asserted nor the relief requested required the participation of individual members in the lawsuit.”[18] Only the first element is in dispute here.[19]

         To satisfy the first element, UPHE must show (1) at least one of its members has suffered an injury in fact that is “(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to [Defendants' illegal conduct]; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”[20] For the reasons that follow, the court concludes UPHE meets this standard.[21]

         A. Injury in Fact

         At the summary judgment stage, a plaintiff must “set forth by affidavit or other evidence specific facts [demonstrating injury in fact], which for purposes of the summary judgment motion will be taken to be true.”[22] The relevant showing is “not injury to the environment but injury to the plaintiff.”[23] And while “generalized harm” to the environment does not alone support standing, “if that harm in fact affects the recreational or even the mere [a]esthetic interest of the plaintiff, that will suffice.”[24] A person who has “reasonable concerns” about pollution suffers injury in fact when their concerns directly affect their recreational, aesthetic, or economic interests.[25]

         UPHE provides affidavits from four of its members asserting various injuries relating to air pollution, including health and recreational harms.[26] Each of the members suffers adverse health effects from elevated air pollution in the Wasatch Front or exposure to diesel exhaust.[27]Some members are deterred from engaging in outdoor recreational activities due their concerns about fine particulate matter pollution.[28] For example, member Howie Garber states “when outdoor air pollution levels exceed 30 ug/m3 of PM2.5 I am forced to avoid all outdoor activities, including riding my road bike, due to health concerns . . . The additional diesel exhaust emitted by [Defendants'] modified vehicles only exacerbates the health risks to me and anyone else breathing the air in the Wasatch Front.”[29]

         These and other statements in UPHE's members' affidavits establish injury in fact.[30]

         B. Causation

         To satisfy the second requirement of standing, a plaintiff must show its members' injuries are fairly traceable to the defendant's alleged violations and not “the result of the independent action of some third party not before the court.”[31] A plaintiff's burden on causation is “something less than the concept of ‘proximate cause, '” but requires proof of at least a “substantial likelihood that the defendant's conduct caused plaintiff's injury in fact.”[32]

         Although Defendants do not dispute their emissions contribute to air pollution in the Wasatch Front, they strenuously argue any pollution attributable to their violations is negligible in comparison to other sources of pollution. For that reason, Defendants maintain UPHE cannot fairly trace its members' injuries to Defendants' violations. Although both sides present compelling arguments, the court ultimately concludes UPHE has satisfied its burden to establish causation.

         The Tenth Circuit has not adopted a standard for evaluating causation when many sources contribute to injury-causing air pollution. Previously, this court applied a standard proposed by UPHE[33] under which a plaintiff must “merely show that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged in the specific geographic area of concern.”[34] Several circuits and district courts, including a district court in this Circuit, [35] have applied similar standards in environmental suits.[36]

         This standard was first applied in Clean Water Act cases, with good reason; when multiple parties discharge pollution into a single waterway, “the pollution of any one may be shown to cause some part of the injury suffered.”[37] The standard accommodates the contributory nature of pollution in a specific location, and relieves plaintiffs of the burden to show “to a scientific certainty that the defendant's emissions, and only the defendant's emissions, are the source of the [harm].”[38] Were the rule otherwise, a defendant who polluted a lake could defeat standing merely by pointing to other sources of pollution in the lake.[39]

         Defendants urge a different “meaningful contribution” approach in this Clean Air Act case, drawing on a series of cases involving greenhouse gas (GHG) emissions starting with Massachusetts v. EPA.[40] In that case, the Supreme Court concluded Massachusetts had standing to challenge the EPA's refusal to regulate GHG emissions.[41] Massachusetts asserted global warming-related injuries, including loss of coastal property due to rising sea levels. The EPA argued causation was not met because any GHG emissions from new motor vehicles “contributes so insignificantly to petitioners' injuries that the [EPA] cannot be haled into federal court to answer for them.”[42] The Court disagreed, noting that U.S. motor vehicle emissions amounted to more than 6% of worldwide carbon dioxide emissions-“a meaningful contribution to greenhouse gas concentrations and hence . . . to global warming.”[43]

         Absent that level of “meaningful contribution” to global warming, plaintiffs have struggled to meet the causation requirement in other GHG cases. For example, the Ninth Circuit found too attenuated an environmental group's claim that state agencies' failure to set emissions standards at oil refineries in Washington “contribute[d] to climate-related changes that result in [plaintiffs'] purported injuries.”[44] Although the oil refineries were responsible for almost 6% of GHG emissions in Washington, the effect of those emissions on global climate change was “scientifically indiscernible.”[45] The court noted a “natural disjunction” between climate change and the plaintiffs' localized injuries, finding the “multitude of independent third parties . . . responsible for the changes contributing to Plaintiffs' injuries” defeated causation.[46] Similarly, the District of New Mexico found GHG emissions amounting to 0.0009% of global emissions was not a “meaningful contribution” to global GHG levels, and could not therefore be fairly traced to the plaintiffs' climate change-related injuries.[47]

         Defendants argue this case is more like a global warming case than a waterway pollution case, and that a “meaningful contribution” or alternative threshold standard should therefore apply. It is true that this case lies somewhere between the two lines of cases. By its nature, air is less contained than water, so it can be more difficult to trace air pollution back to its sources in a given location relative to water pollution. And Defendants persuasively highlight the many sources contributing to air pollution in the Wasatch Front, including on-road mobile sources, wildfires, and oil refineries.[48]

         But the direct relationship between UPHE's injuries and Defendants' pollution makes this case more analogous to a waterway case than a GHG case. Unlike plaintiffs in a GHG case, UPHE need not trace Defendants' emissions from a point source to global climate change and then back to the Wasatch Front. Rather, UPHE complains that Defendants' emissions in the Wasatch Front directly and immediately contribute to air pollution in the Wasatch Front, and that the air pollution causes its members harm.[49]

         To be sure, Defendants' emissions are a small fraction of total emissions in the Wasatch Front. But aside from the “meaningful contribution” language used in GHG cases, Defendants do not articulate a principled threshold requirement for causation. Further, a causation standard that precludes citizens from suing for CAA violations directly contributing pollution to the air they breathe would seriously undermine the CAA's citizen enforcement provision.

         For these reasons, the court will apply the standard articulated above: to meet its burden on causation, UPHE must show Defendants discharged a pollutant that causes or contributes to the kinds of injuries suffered by UPHE's members in the Wasatch Front. UPHE meets this burden by showing Defendants' violations contribute nitrous oxides (NOx) and particulate matter (PM) to air in the Wasatch Front, [50] and providing evidence NOx and PM pollution contributes to the types of injuries suffered by its members in the Wasatch Front.[51]

         C. Redressability

         For the third standing requirement, redressability, a plaintiff must show “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”[52] The plaintiff does not need to show a favorable decision will completely relieve an injury or relieve its every injury.[53] In a citizen enforcement suit, a plaintiff must show the relief it seeks will specifically redress its members' injuries, “as opposed to merely advancing generalized environmental interests.”[54] Because UPHE must have standing to pursue each form of relief it seeks, it must show its members' injuries can be redressed by declaratory and injunctive relief, civil penalties, and a beneficial mitigation project.[55]

         Civil penalties, if awarded, would redress UPHE's injuries by deterring future violations.[56] Declaratory and injunctive relief could also provide redress by curbing ongoing violations and halting Defendants' continued contribution to Plaintiff's members' pollution- related injuries.[57]

         UPHE also seeks mandatory injunctive relief in the form of an injunction ordering Defendants to “recall and either repair or destroy all of the illegal parts and vehicles they have conveyed to third-parties that continue to pollute.”[58] This request is overbroad because it is not tied to the geographic area in which UPHE's members' suffer cognizable injury. UPHE has not shown how its members' injuries would be specifically redressed if Defendants were ordered to repair or destroy parts and vehicles located outside the Wasatch Front. UPHE therefore lacks standing to pursue this form of relief.

         Finally, UPHE asks that up to $100, 000 of any civil penalty be earmarked for use in a beneficial mitigation project as provided by 42 U.S.C. 7604(g)(2).[59] A mitigation project structured to reduce air pollution in the Wasatch Front could redress UPHE's members' injuries by improving the quality of the air they breathe. It could also deter Defendants from future violations.[60]

         Defendants argue UPHE's claims are not redressable for the same reason they fail to show causation: because Defendants' violations are but a “drop in the ocean” of total air pollution in the Wasatch Front. According to Defendants, UPHE members' pollution-related injuries cannot be redressed by a favorable outcome in this action because even if UPHE is successful, other sources of emissions will continue to exist in the Wasatch Front and cause harm to the members. This argument fails for the same reasons articulated above. UPHE demonstrates Defendants' violations contribute to the pollution harming its members. Were Defendants' contributions to cease, that pollution would no longer pose a risk to the members. That is enough to satisfy the redressability requirement.[61]

         Having shown its members suffer redressable injuries in fact fairly traceable to Defendant's violations, UPHE has standing to pursue each of its claims except for mandatory injunctive relief.

         II. The Responsible Corporate Officer Doctrine

         Defendants argue many of UPHE's claims against the individual Defendants are legally barred because the CAA does not authorize civil enforcement suits against “responsible corporate officers.” The court disagrees.

         The CAA authorizes citizen suits against “any person” for violations of “an emission standard or limitation” under the Act.[62] Some of UPHE's claims against the individual Defendants center on their personal participation in conduct violating the CAA.[63] For other claims, however, UPHE seeks to hold individual Defendants joint and severally liable for the conduct of B&W Auto and/or DPG under the responsible corporate officer doctrine.

         The criminal enforcement provision of the CAA was amended in 1977 to add “any responsible corporate officer” to the definition of “person.”[64] That is, Congress explicitly adopted the “responsible corporate officer doctrine” in the CAA criminal enforcement context, making a corporate officer liable if, “by reason of his position in the corporation, [he or she had] responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and . . . failed to do so.”[65] Congress did not make the same changes to the civil enforcement provision of the Act. According to Defendants, “the deliberate omission of responsible corporate officers from the definition of ‘person' contained in [§ 7602(d)] evinces Congress' intent not to allow corporate officers to be named defendants in suits of this type.”[66]

         Although the Tenth Circuit has not spoken on this issue, a number of other courts have held responsible corporate officers can be held liable in CAA and Clean Water Act[67] civil enforcement actions, despite the absence of specific language to that effect in the citizen enforcement provisions.[68] Defendants cite two cases concluding otherwise, but those cases appear to be outlier decisions.[69] And holding corporate agents liable in civil suits, under appropriate circumstances, gives effect to Congress's intent as evinced in the Act's legislative history:

The committee's decision with respect to the civil penalty provisions of the act is intended to assure that the rationale of the Park case (for food and drug law) will apply to enforcement of the Clean Air Act. The committee thus intends [t]hat in providing sanctions which reach and touch the individuals who execute the corporate mission . . . the act imposes not only a positive duty to seek out and remedy violations when they occur but also, and primarily, a duty to implement measures that will insure violations will not occur. The requirement of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being of the public that supports them.[70]

         In light of these cases and the legislative history, it is the court's best judgment that the responsible corporate officer doctrine applies in CAA citizen enforcement suits. The individual Defendants in this case can therefore be held liable if they had authority to prevent or correct CAA violations and failed to exercise that authority, provided they had knowledge of the facts giving rise to the violation.[71]

         In a parallel argument, Defendants argue the individual Defendants cannot be held personally liable unless UPHE pierces the corporate veil. But the responsible corporate officer and corporate veil doctrines are conceptually distinct. The former assigns personal liability based on a corporate officer's failure to exercise his authority to prevent or correct violations, whereas the latter is a mechanism for disregarding a business entity and holding a principal liable for the acts of a business. Plaintiff does not seek to disregard B&W Auto or DPG's corporate formalities and hold individual Defendants liable for the businesses' obligations. The corporate veil doctrine therefore does not apply.

         III. UPHE's Partial Motions for Summary Judgment

         Having resolved the preceding threshold questions, the court turns to UPHE's four Partial Motions for Summary Judgment. Additional arguments raised in Defendants' Motion for Summary Judgment relating to specific claims are addressed in the following analyses.

         A. UPHE's Motion to Establish B&W Auto and Sparks' Liability

         UPHE moves to establish Defendants B&W Auto and Sparks' liability for violations of the CAA and Utah SIP relating to (a) the removal of pollution control devices from federally-certified vehicles, (b) the installation of aftermarket emission control defeat parts in federally-certified vehicles, and (c) the sale of aftermarket emission control defeat parts as part of vehicles.[72] UPHE moves on these claims with respect to seventeen vehicles, reserving for trial the claims as to other vehicles listed in the Complaint.

         Defendants admit B&W Auto and Sparks violated the cited CAA and SIP provisions in question, [73] but argue B&W Auto and Sparks are not liable for these violations because (1) UPHE lacks standing, (2) UPHE has not shown irreparable harm, and (3) Sparks cannot be held liable under the responsible corporate officer doctrine. As explained above, UPHE has standing to bring its claims. Defendants' second argument fails because UPHE has not yet moved for injunctive (or other) relief and is not required to show irreparable harm to succeed on a motion to establish liability. UPHE's Motion is therefore granted as to its first, fifth, thirteenth, and seventeenth causes of action against B&W Auto.

         As for Defendants' third argument, Sparks can be held personally liable as a responsible corporate officer if he knew of the facts underlying the violations, had the ability to prevent or correct the violations, and failed to do so. Although UPHE shows Sparks had the ability to prevent and correct the violations, there remains a question of fact whether he had sufficient knowledge of the facts underlying the violations.

         As CEO, manager, and owner of B&W Auto, Sparks was in a position to prevent B&W Auto from removing pollution control devices, installing emission control defeat parts, and selling defeat parts as part of vehicles.[74] But UPHE fails to provide evidence demonstrating as a matter of law that Sparks knew of the facts underlying the violations, i.e. that he knew about the removal/installation work or the vehicle sales. UPHE relies on Sparks' deposition, in which he agreed he was akin to “the general” of B&W Auto[75] and “kn[e]w every vehicle” on a list of vehicles from which pollution control devices had been removed.[76] Based on those statements and Sparks' relationship to B&W Auto, UPHE maintains Sparks must have known about the removal/installation work and sales. But UPHE's argument requires the court draw inferences in its favor, which it cannot do in deciding UPHE's Summary Judgment Motion. Furthermore, a reasonable jury could find Sparks did not have the requisite knowledge. UPHE's Motion is therefore denied as to its second, sixth, fourteenth, and nineteenth causes of action against Sparks.

         1. Pass-Through Sale of “As Is” Vehicles

         In their Motion for Summary Judgment, Defendants argue they cannot be held liable for the “pass-through sale” of modified trucks purchased by B&W Auto with emissions defeat parts already installed.[77]

         Under 42 U.S.C. § 7522(a)(3)(B), it is a CAA violation:

for any person to manufacture or sell, or offer to sell, or install, any part or component intended for use with, or as part of, any motor vehicle or motor vehicle engine, where a principal effect of the part or component is to bypass, defeat, or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under this subchapter, and where the person knows or should know that such part or component is being offered for sale or installed for such use or put to such use.

         Defendants contend this provision prohibits only the ‘“sale or installation' of ‘parts or components' meant to defeat emissions, ” and that when a truck is acquired and sold as-is, “the emissions part is not being sold.”[78]

         Defendants' reading of the statute and application to the facts here is untenable. Section 7522(a)(3)(B) prohibits by its plain language the sale of an emissions defeat part “as part of” a vehicle where the seller knows or should know the part is being “put to such use.” This language plainly encompasses B&W Auto's “as is” sale of modified vehicles it knew or should have known to contain defeat emission parts. Insofar as Defendants move for summary judgment on UPHE's seventeenth, eighteenth, and nineteenth causes of action on this basis, the motion is denied.

         B. UPHE's Motion to Establish DPG, Sparks, and Stuart's Liability for Selling Defeat Parts[79]

         UPHE next moves to establish DPG, Sparks', and Stuart's liability for selling aftermarket emission control defeat parts in violation of the CAA.[80] In response to this Motion, Defendants primarily reassert their rejected arguments that UPHE lacks standing, fails to show it is entitled to a permanent injunction, and that the claims against Stuart cannot stand under the responsible corporate officer doctrine. Each of these arguments fails for reasons already stated.

         There is no genuine dispute of material fact as to DPG, Sparks', and Stuart's liability for these claims, for some of the identified defeat parts. Defendants admit DPG sold “at least 88 exhaust gas recirculation delete kits to customers, including [to] customers in Utah, that have the principal effect of bypassing, defeating, or rendering inoperative pollution control devices on federally-certified motor vehicles.” Defendants raise no dispute of fact as to these defeat parts.

         But UPHE also claims DPG sold “at least 18 aftermarket exhaust pipes, ” “at least 49 delete pipes, ” and “at least 26 delete pipes and EGR delete kits [sold] to Defendant B&W.”[81]Defendants argue UPHE fails to provide evidence that any of these specific parts violate the CAA by having the “principal effect . . . to bypass, defeat, or render inoperative” pollution control devices.[82] UPHE responds by claiming the names of these parts are self-explanatory and suffice to establish their primary purpose. Defendants also argue UPHE misstates the number of parts sold, by counting parts purchased by B&W Auto twice.

         UPHE's evidence falls short. To succeed on summary judgment, UPHE must demonstrate each element of its claim, and it cannot do so here without evidence-or an admission-showing the parts DPG sold had a “principle effect” that violated the CAA. UPHE's Motion is therefore granted as to its ninth cause of action against DPG, but only for the 88 ...

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