Rival truck and engine makers have joined forces in asking the U.S. Court of Appeals to revoke environmental compliance certificates granted to Navistar Inc. by the U.S. Environmental Protection Agency (EPA) for selling diesel engines that do not meet NOx standards.
The petitioners — which include Daimler Trucks North America, Detroit Diesel, Mack Trucks and Volvo Group North America — Wednesday formally asked the court to officially revoke the certificates, making Navistar potentially vulnerable to EPA enforcement actions and lawsuits.
The companies claim Navistar benefited from “certificates of conformity” at the expense its competitors, who pumped millions of dollars into the research, development and engineering of engines that met tightening emissions standards while Navistar was allowed to sell non-compliant engines and assessed a penalty of $1,919 per truck.
The EPA initially granted Navistar approval to sell the non-compliant engines but, in June 2012, the D.C. Circuit ruled the case did not satisfy the Administrative Procedure Act’s criteria for granting the waiver and that the process should have been open to public comment.
According to the court filing from June of last year, “NCPs (nonconformance penalties) are meant to be a temporary bridge to compliance for manufacturers that have ‘made every effort to comply.’ As EPA itself has explained, NCPs are not designed to bail out manufacturers that voluntarily choose, for whatever reason, not to adopt an existing, compliant technology.”
A key issue in the case – which dates back to 2001 – is whether revoking the certificates would right any alleged wrongs endured by Daimler, Mack and/or Volvo.
Petitioning attorney Christopher Handman declined to comment Friday.
EPA attorney Michele Walter did not return phone calls or messages.
According to Environment & Energy Publishing, the three-judge panel seemed skeptical that retroactively revoking the certificates would undo any perceived business damages since the trucks in question were already on the road.
However, E&E says the petitioners see potential remedies coming two-fold. If the certificates were voided, a citizen could file a lawsuit under the Clean Air Act challenging the engines for violating EPA’s standard. Additionally, the EPA could institute an enforcement action.
“…either of which would result in Navistar disgorging the competitive benefits it obtained through EPA’s unlawful certificates,” a brief dated Jan. 28, 2013 says.
Walter, according to E&E, says the petitioners’ challenge of the ruling is a business matter, and remedies could not properly be meted out through litigation.
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