Navistar is turning up the heat in its ongoing litigation against the U.S. Environmental Protection Agency, charging that the agency is trying to manipulate the record in the case to hide what Navistar calls EPA’s “secret collaboration” with truck and engine makers to advance selective catalytic reduction for 2010 emissions compliance. In a July 2 motion, Navistar asked that the U.S. Court of Appeals for the District of Columbia Circuit deny EPA’s attempt to amend its own record in the case.
EPA filed the “certified amended index to administrative record” – a list of documents the agency says are relevant to the case – on June 15, almost a month after it filed its original certified index. Navistar’s lawsuit relates specifically to EPA’s Feb. 18, 2009, certification standards for SCR-equipped engines. Navistar contends that EPA adopted the Feb. 18 guidance improperly without rulemaking procedures that were used in 2001 and 2007 to adopt the original 2010 requirements and earlier SCR guidance, respectively.
In its latest filing, Navistar argues that EPA’s new index improperly removes many documents from the original index, “including documents likely to reveal EPA’s own conclusions effectively confirming the merits” of the lawsuit. Navistar says the removed documents reveal the “inefficacy and environmental hazard” posed by SCR, which EPA had called infeasible in 2001 “but later authorized in secret collaboration with certain engine makers outside of rulemaking.” Specifically, Navistar charges that the driver inducements incorporated into the Feb. 18 guidance to encourage truck drivers to add diesel exhaust fluid (DEF) were drafted for EPA by the Engine Manufacturers Association.
Much of Navistar’s July 2 filing revolves around establishing that there was no public record surrounding EPA’s adoption of the Feb. 18 guidance – unlike the situation with the 2001 standard and the 2007 SCR guidance. What EPA submitted in May included documents the agency itself selected, many of which represented correspondence among EPA, the California Air Resources Board and EMA, Navistar said. In filing the initial index, “EPA had the choice of conceding the truth – namely, that there is no administrative record – or of creating a record on the spot. EPA chose the latter course.”
Documents that EPA did include in its amended certified index include correspondence between EPA and EMA regarding the language of the 2009 SCR guidance and between EPA and CARB referring in some cases to “the EMA guidance document.”
“EMA provided recommendations and comments regarding the development of additional guidance to supplement EPA’s original SCR guidance document prepared in March 2007,” says Joe Suchecki, EMA director of public affairs. During the development of the guidance, EMA provided EPA and CARB with written recommendations and suggested language, Suchecki says. Moreover, this type of interaction isn’t unusual, he adds. “EMA regularly works with EPA, CARB and a wide variety of interested stakeholders regarding issues affecting the industry. EMA typically provides comments and recommendations and often submits proposed regulatory language for the agency’s consideration.”
With less than six months before the new emissions regulations take effect, there has been no indication from the appeals court regarding when it might take further action regarding Navistar’s lawsuit. The court has yet to order any briefing or arguments in the case.