COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiff Navistar, Inc., filed suit against Lisa P. Jackson, Administrator of the United States Environmental Protection
Under Section 202 of the Clean Air Act, the EPA is authorized to promulgate emissions standards for new motor vehicles and engines. See 42 U.S.C. § 7521(a)(1);
§ 7541(c)(1).
Section 304 of the Clean Air Act provides that private citizens can maintain a civil action "against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary." 42 U.S.C. § 7604(a)(2). This section further provides district courts with jurisdiction to "order the Administrator to perform such act or duty." Id.
Navistar, formally known as International Truck & Engine Company, manufactures and markets a variety of diesel engines, trucks, and service vehicles. Compl. ¶ 19. Putative Intervenors Cummins, Detroit Diesel, and Mack Trucks manufacture diesel engines. Putative Intervenors Daimler, Mack Trucks, and Volvo manufacture and sell heavy duty trucks outfitted with diesel engines. Mot. to Intervene at 3.
The dispute in this case centers around emissions control technology in diesel engines. Navistar uses exhaust gas recirculation ("EGR") technology to control emissions, particularly nitrogen oxide emissions. Compl. ¶ 89. The Putative Intervenors manufacture and sell diesel engines utilizing urea-based selective catalyst reduction ("SCR") technology. Mot. to Intervene at 3. Navistar alleges that Model Year 2010 SCR engines certified by the EPA as being compliant with applicable emissions standards actually violate emissions standards when in use on the road. Compl. ¶¶ 6-11. Navistar further alleges that the EPA has determined "that a substantial number of [Model Year] 2010 SCR-equipped engines are not designed consistent with their certificates of conformity, do not meet maintenance requirements, or otherwise `do not conform to the regulations prescribed under section 7521 [CAA § 202] ... when in actual use throughout their useful life.'" Id. at ¶ 13. Therefore, Navistar contends, under the Clean Air Act the EPA is required to order a recall of the relevant engines.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).
The Putative Intervenors move to intervene as of right under Rule 24(a)(2), or permissively under Rule 24(b)(1)(B). For purposes of this motion, the Court presumes the well-pleaded allegations in the Complaint are true. SEC v. Prudential Secs. Inc., 136 F.3d 153, 156 n. 4 (D.C.Cir.1998). In order to intervene as of right, the movant must demonstrate "an interest relating to the property or transaction that is the subject of the action," and that "disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest." Rule 24(a)(2). The Court of Appeals has identified four requirements for intervention as a matter of right: (1) the application to intervene must be timely; (2) the putative intervenors must have a "legally protected" interest in the action; (3) the action must threaten to impair the putative intervenors' interest in the action; and (4) no existing party to the action adequately represents the putative intervenors' interest. Karsner v. Lothian, 532 F.3d 876, 885 (D.C.Cir.2008). The putative intervenors must further establish that they have constitutional standing to participate in the action, United States v. Philip Morris USA Inc., 566 F.3d 1095, 1146 (D.C.Cir. 2009), although this inquiry is subsumed in the general inquiry under Rule 24(a). See Wildearth Guardians v. Salazar, 272 F.R.D. 4, 13 n. 5 (D.D.C.2010).
Although the motion to intervene was filed nearly two and one half months after the Complaint was initially filed, the motion was filed less than two weeks after Defendants filed their responsive pleadings, and before any discovery or substantive progress had been made in the case. Navistar does not dispute that the motion to intervene was filed in a timely manner.
Even though the disposition of this case ultimately turns on a question of statutory interpretation, the dispute has its roots in the EPA's certification of diesel engines utilizing SCR technology as compliant with emissions standards imposed under the Clean Air Act. Navistar commits the bulk of its Complaint to describing in detail the purported flaws in these engines. Navistar even seeks significant discovery relating to "the actual or potential non-conformance of [Model Year] 2010 or later SCR engines with their certificates of conformity," including "any emissions-related testing," "any mandatory or voluntary recall[s]," and "any other actual or proposed action to address any non-conformity, failure, problem, malfunction, production or design defect, or non-compliance." Pl.'s Mot. for Disc., Levine Decl. ¶ 12. Ultimately, Navistar's goal in this litigation is to obtain a court order requiring the EPA to recall the engines manufactured and sold by the putative intervenors, and the
Simply put, Navistar alleges that the EPA's certification and failure to recall the SCR based engines has been favorable to the putative intervenors. Navistar seeks to reverse what it views as illegal favoritism towards companies producing engines with SCR technology, including the putative intervenors. A decision in favor of the Plaintiff in this case would, at a minimum, force the movants to contest the EPA's determination that their engines do not conform to emissions standards. See § 7541(c)(1). In the worst case scenario, movants will be forced to recall all Model Year 2010 diesel engines utilizing SCR technology. See id. "[A]s a practical matter," an adverse decision would force movants to expend significant resources to try and keep their engines on the road. "Regardless of whether the [movants] could reverse an unfavorable ruling ... there is no question that the task of reestablishing the status quo if [Plaintiff] succeeds in this case will be difficult and burdensome." Fund for Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C.Cir.2003). Therefore the movants satisfy the third requirement for intervention as of right.
The only remaining question is whether the EPA adequately represents the putative intervenors' interests in this action. Courts have often concluded governmental entities do not adequately represent the interests of private parties seeking to intervene because the private parties have "a more narrow and `parochial' financial interest not shared" by the government. Fund for Animals, 322 F.3d at 737 (quoting Dimond v. District of Columbia, 792 F.2d 179, 192 (D.C.Cir.1986)). The EPA is unlikely to, and arguably should not, afford the movant's "discrete and particularized interests the same primacy" as movants would themselves. Wildearth Guardians, 272 F.R.D. at 15. Therefore, the putative intervenors are entitled to intervene in this action.
The putative intervenors have satisfied the four requirements for intervention as of right as set forth by the Court of Appeals and therefore their motion is granted. Given the Court's disposition of Defendants' summary judgment motion, the Court need not evaluate Plaintiff's proposed limitations on the intervenors' involvement in the case. Moreover, since the Intervenors indicated their intent to join Defendants' motion, which the Court is granting, Intervenors' request to submit additional briefing regarding summary judgment and Plaintiff's request for discovery is denied.
The parties agree that the fundamental dispute in this case is whether the EPA has made a determination that Model Year 2010 diesel engines using SCR technology "do not conform to the regulations prescribed under section 7521 [CAA § 202]... when in actual use throughout their useful life." Plaintiff argues this is a factual question that can only be resolved through discovery. Defendants contend that, according to the EPA's definition of "determination," such a determination has not been made, and summary judgment is appropriate. Contrary to Plaintiff's assertion, this is a legal, not a factual question. The Court finds that under the Chevron Doctrine, the Court must defer to the EPA's interpretation of "determination" for purposes of the relevant statutory section. Under this interpretation, the Plaintiff has failed to show a genuine dispute as to whether the EPA has in fact made that
The EPA contends that if it were to make a "determination" under section 207(c)(1) of the Clean Air Act, it would do so explicitly and in writing. Defs.' Mot. for Summ. J., Oge Decl. ¶ 5. For its part, the Plaintiff claims the "explicit" and "in writing" requirements are found nowhere in the Clean Air Act, and that discovery will show Defendants have de facto made the "determination." To resolve the parties' competing interpretations of the Clean Air Act, the Court reviews the EPA's interpretation under the approach articulated by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Sierra Club v. Browner, 130 F.Supp.2d 78, 90 (D.D.C.2001), aff'd, Sierra Club v. Whitman, 285 F.3d 63 (D.C.Cir.2002). Initially, the Court must ask whether "Congress has directly spoken to the precise question at issue;" and if so, "the court as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. However, if "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. As long as the agency's interpretation is "reasonable and consistent with the statute's purpose," the Court must defer to the agency's interpretation. Chemical Mfrs. Ass'n v. EPA, 217 F.3d 861, 866 (D.C.Cir. 2000).
The Clean Air Act is clear that if a determination is made under section 207(c)(1), the EPA must take certain steps. However, the Act is silent as to what qualifies as a determination. The legislative history does not provide any additional guidance. The Conference Report suggests the determination would be made "on the basis of inspections or studies," but does not elaborate further as to the format of the "determination." Conf. Rep. 91-1783, at 10 (1970), reprinted in 1970 U.S.C.C.A.N. 5374, 5384. Therefore, the Court must defer to the EPA's interpretation if it is (1) reasonable; and (2) consistent with the statute's purpose.
The agency's view of an ambiguous statute controls if "it is a reasonable interpretation of the statute — not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable." Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 129 S.Ct. 1498, 1505, 173 L.Ed.2d 369 (2009). The Court finds the EPA's interpretation of "determination" in section 207(c)(1) as requiring an explicit, written finding is reasonable primarily for three reasons. First, the text of the statute supports the EPA's interpretation. Section 207(c)(1) indicates that the manufacturer of non-conforming engines are afforded an opportunity to present evidence at a public hearing to rebut the EPA's determination. If the EPA does not subsequently "withdraw[]" the determination of nonconformity, the manufacturer must take certain steps. The fact that the EPA may "withdraw" a determination implies that the determination was formally made in the first place. It is unclear how the EPA would "withdraw" its determination if it was made by effect from a combination of various factual findings as Navistar suggests. Second, as Navistar's Complaint emphasizes, once the EPA makes a "determination," additional obligations on the part of the EPA and engine manufacturers are triggered. It is entirely plausible that the "determination" would have to be explicit and written in order to trigger such
The EPA's interpretation is also consistent with the purposes of the Clean Air Act. The stated purposes of the Act include "protect[ing] and enhanc[ing] the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population," and to "promote reasonable Federal, State, and local governmental actions" to achieve pollution prevention. § 7401(b)(1), (c) (emphasis added). Plaintiff argues that by failing to acknowledge its determination and recall the allegedly offending engines, the EPA's actions are counter to the statutory purpose and allow non-complying engines to remain on the road. The record indicates otherwise. The EPA publicly acknowledges that mandatory recalls ordered by the EPA are rare. See Overview of Vehicle Recalls, available at http://www. epa.gov/otaq/recall.htm ("Recalls and other remedies are usually conducted voluntarily by the manufacturer, although EPA has the authority to order a manufacturer to recall and fix non-complying vehicles. Most recalls are initiated voluntarily by manufacturers once a potential noncompliance is discovered."). Rather, the "EPA conducts emissions testing on randomly procured in-use vehicles ... [and][i]f problems are found, discussions begin with the manufacturer on possible remedies, which may include a recall of the affected vehicles." Id. Working cooperatively with manufacturers to fix issues with emissions systems is entirely consistent, rather than purely adversarial, with the goal of reducing air pollution. Cooperation between the EPA and engine manufacturers to solve potential emission issues is a reasonable action to help prevent further air pollution. As a reasonable solution, consistent with the purpose of the Clean Air Act, the EPA's interpretation of "determination" for purposes of section 207(c)(1) is entitled to this Court's deference.
Having established that the EPA's interpretation of determination is controlling, the remaining question is whether the EPA has in fact made an explicit, written determination that SCR diesel engines do not conform to the relevant emissions regulations. The EPA provided the declaration of Margo Tsirigotis Oge, the Director of the Office of Transportation and Air Quality, a division of the Office of Air and Radiation of the EPA, indicating that no authorized officer at the EPA has determined that "a substantial number of any class or category of model year 2010 selective catalytic reduction (SCR) equipped engines, `although properly maintained and used, do not conform to the regulations prescribed under section 202, when in actual use throughout their useful life.'" Oge Decl. ¶ 1, 6. Plaintiff makes two arguments: (1) the EPA has made the determination; and in the alternative, (2) additional discovery is necessary to verify Ms. Oge's claim. Neither argument is persuasive.
Plaintiff contends that even under the standard articulated by the EPA, the
Plaintiff devotes most of its pleadings to arguing that additional discovery is necessary before the Court can evaluate Defendants' motion. The Court will deny Plaintiff's request as any additional discovery would ultimately be futile. Navistar's counsel states Plaintiff seeks to "elicit testimony from Ms. Oge and other EPA personnel," and documents and materials regarding "the actual or potential non-conformance of [Model Year] 2010 or later SCR engines," "any mandatory or voluntary recall of [Model Year 2010] or later SCR engines (or any consideration thereof)," and "any other actual or proposed action to address any non-conformity, failure, problem, malfunction, or production or design defect." Levine Decl. ¶ 12. However, this case does not involve a factual dispute that documentary evidence might resolve. Rather, the sole issue in this case is whether the EPA has made a written, explicit determination that Model Year 2010 SCR engines, when properly maintained and used, do not conform to emissions regulations. The EPA submitted a declaration under oath, from the relevant official, indicating no such determination has been made. See Oge Decl. There is no reason to believe that any amount of discovery would reveal otherwise. The Court will not deny summary judgment and allow Navistar to go on a fishing expedition in the EPA's records simply because Navistar is dissatisfied with the fact that the EPA has not made a determination that the EPA is under no
For the foregoing reasons, the Putative Intervenors' [13] Motion to Intervene is GRANTED. Defendants' [11] Motion for Summary Judgment Dismissing Complaint for Failure to State a Claim upon which Relief can be Granted is GRANTED. Defendants' interpretation of "determination" as used in section 207(c)(1) of the Clean Air Act is reasonable and consistent with the purposes of the statute, and therefore entitled to deference by this Court. Given this interpretation, the EPA has yet to determine that Model Year 2010 SCR engines are nonconforming, requiring the EPA to recall the engines. Plaintiff's [14] Motion for Discovery Pursuant to Federal Rule of Civil Procedure 56(d) is DENIED. The discovery requested by Plaintiff would be futile. Therefore this case is dismissed in its entirety.
An appropriate Order accompanies this Memorandum Opinion.
