Diesel Brothers Fail to Overturn Clean Air Act Violations, Cited for “Flagrant Misconduct.”

Salt Lake City, UT – In a significant victory for cleaner air and the rule of law, the 10th Circuit Court of Appeals upheld federal Chief Judge Robert Shelby’s 2019 decision that Utah Physicians for a Healthy Environment properly sued – and prevailed against – the Diesel Brothers under the Clean Air Act. 

“We are a step closer to clean, healthy air in Utah thanks to this decision,” said Dr. Brian Moench, UPHE’s president.

The decision of the Appeals Court continues the prohibition against the Diesel Brothers from defeating emission control systems in diesel vehicles, and upholds in large part the penalties assessed against the Discovery Channel actors. 

“Specifically, the court upheld Judge Shelby’s previous decision that private citizens can use the provisions of the Clean Air Act to hold the Diesel Brothers accountable for adding to our community’s pollution burden by deliberately tampering with pollution control devices on cars and trucks,” said Dr. Moench. “But the appeals court’s ruling today has broad implications. It is a victory for public health protection, for preserving the rule of law, and for the right of citizens to pursue punishment of any company that might have a similar business practice that disregards the rights of citizens to breathe clean air.”

To the Diesel Brothers’ claim that their penalties were disproportionate to their violations, the appeals ruled, “In light of the flagrant misconduct by Defendants, we see no gross disproportion.”

“The decision of the Appeals Court is welcome news,” said UPHE attorney Reed Zars. “It represents a shot across the bow to those who traffic in the illegal modification of emission controls in cars and trucks,” Zars stated. 

BACKGROUND:

·      The appeals court rejected the argument of Diesel Brothers that they were protected from federal enforcement by selling their illegally-modified trucks “as-is.”  According to the appeals court:

Defendants’ argument is a nonstarter. The statute certainly does not explicitly provide an exception for as-is sales. Nor does anything in the CAA provide a rationale for such an exception. On the contrary, the as-is nature of a sale concerns only the relationship between the seller and the buyer, whereas the CAA’s concern is the relationship between the user of the vehicle and the public that must suffer from that vehicle’s emissions. 

·      The appeals court upheld the right of citizens to sue companies and individuals who, like the Diesel Brothers, harm the health of the public by tampering with emission controls on cars and trucks. 

·      The appeals court held that this right is supported by the U.S. Constitution, the federal Clean Air Act, and Utah’s air pollution regulations. 

·       According to the appeals court:  “We therefore hold that UPHE has standing to challenge Defendants’ violations that contributed to the unhealthy air in the Wasatch Front. The EPA has determined that the Salt Lake City area, which includes where Defendants conduct business, is a nonattainment area for 24-hour levels of fine particulate matter (PM2.5).12 See 40 C.F.R. § 81.345. Those who reside in that area can fairly trace injuries they suffer from the polluted air to any contributor of prohibited emissions in the area.”

·      The appeals court rejected Diesel Brothers’ argument that citizens could not enforce the prohibition against removing emission controls from vehicles.  According to the appeals court, “UPHE argues that ‘[a]n anti-tampering requirement prohibiting the removal or defeat of an emission control device, such as a catalytic converter, that is designed to reduce emissions on a continuous basis, is plainly a requirement that ensures the reduction of emissions on a continuous basis,’ and therefore satisfies the statutory definition of an emission standard or limitation. Aplee. Br. at 28–29. This argument has considerable force.”

·      The appeals court upheld Judge Shelby’s assessment of penalties in large part, only requiring a review of the penalties for those illegally modified trucks and parts that were sent out of state and did not directly pollute the air of Utah.  

·      The appeals court also rejected Diesel Brothers’ argument that the penalties they were assessed violated the U.S. Constitution.  According to the appeals court: “Finally, Defendants argue that the penalties imposed on them for violations of Utah’s SIP are “excessive and disproportionate to the gravity of the violations,” and therefore unconstitutional under the Eighth Amendment. Aplt. Br. at 47 . . .  The test for whether a fine is excessive under the Eighth Amendment is whether “it is grossly disproportional to the gravity of a defendant’s offense.” United States v. Bajakajian, 524 U.S. 321, 334 (1998). In light of the flagrant misconduct by Defendants, we see no gross disproportion.”


Click here to read more about the lawsuit.

🎉 Join us in celebration on Thursday, March 28th at the Utah State Capitol from 11-12 pm MT to kick off our campaign to save the Phalaropes - and the Great Salt Lake.

Featuring speakers like Phalarope scientist Ryan Carle, Terry Tempest Williams, Ben Abbott (@growtheflow), Patrick Donnelly (@centerforbiod), representatives from @uphe and UYES, and more. Plus, don't miss the Great Salt Lake Vigil bird puppets and signs expressing our love for the Lake.

🐦 What exactly is at stake for the Great Salt Lake if the Wilson’s Phalarope gains Endangered Species Act protection?

Protecting the Wilson’s Phalarope under the Endangered Species Act could mean crucial safeguards for the Great Salt Lake, including regulations on water levels and ecosystem preservation. Federal involvement might push leaders to prioritize water flow to the lake.

We can't wait to see you there ❗️RSVP: Link in Bio.

🎉 Join us in celebration on Thursday, March 28th at the Utah State Capitol from 11-12 pm MT to kick off our campaign to save the Phalaropes - and the Great Salt Lake.

Featuring speakers like Phalarope scientist Ryan Carle, Terry Tempest Williams, Ben Abbott (@growtheflow), Patrick Donnelly (@centerforbiod), representatives from @uphe and UYES, and more. Plus, don`t miss the Great Salt Lake Vigil bird puppets and signs expressing our love for the Lake.

🐦 What exactly is at stake for the Great Salt Lake if the Wilson’s Phalarope gains Endangered Species Act protection?

Protecting the Wilson’s Phalarope under the Endangered Species Act could mean crucial safeguards for the Great Salt Lake, including regulations on water levels and ecosystem preservation. Federal involvement might push leaders to prioritize water flow to the lake.

We can`t wait to see you there ❗️RSVP: Link in Bio.
...

20 1
Immigration at the southern border and inflation, especially food inflation, have been the top two political issues this year according to recent polls. Did you know that both are being affected, if not largely driven by, the climate crisis? 🌎
 
Agricultural stability hinges on consistent precipitation and temperatures. However, the climate crisis, marked by extreme temperatures, droughts, floods, hurricanes, and more, is significantly disrupting food production. Already, millions of people worldwide have been displaced from their homes as a result. In 2022, over 30 million people became climate or earthquake refugees. Not surprisingly, a new study directly connected the climate crisis with food inflation throughout the world. 📈
 
Central America, the origin of much the immigration surge at the southern border, contributes hardly any greenhouse gases to the global atmosphere, but is especially at risk from the climate crisis. Honduras is pummeled with hurricanes, rising seas and storm surges, and coastal erosion. In Western Mexico it’s drought. In Guatemala and El Salvador its hurricanes, drought, floods, and malnutrition from crop failure.
 
By 2050, weather extremes and ecosystem destruction, and the ensuing societal collapse, will create as many as 1.2 billion climate refugees and risk the lives of even more. Food inflation that we’re seeing now is just the beginning of this dangerous trend. It is in our own self-interest and our moral obligation for Utah and the United States to end our dependency on greenhouse gas emitting dirty energy. Taking care of our local environment helps us take care of our shared world. 💚

Immigration at the southern border and inflation, especially food inflation, have been the top two political issues this year according to recent polls. Did you know that both are being affected, if not largely driven by, the climate crisis? 🌎

Agricultural stability hinges on consistent precipitation and temperatures. However, the climate crisis, marked by extreme temperatures, droughts, floods, hurricanes, and more, is significantly disrupting food production. Already, millions of people worldwide have been displaced from their homes as a result. In 2022, over 30 million people became climate or earthquake refugees. Not surprisingly, a new study directly connected the climate crisis with food inflation throughout the world. 📈

Central America, the origin of much the immigration surge at the southern border, contributes hardly any greenhouse gases to the global atmosphere, but is especially at risk from the climate crisis. Honduras is pummeled with hurricanes, rising seas and storm surges, and coastal erosion. In Western Mexico it’s drought. In Guatemala and El Salvador its hurricanes, drought, floods, and malnutrition from crop failure.

By 2050, weather extremes and ecosystem destruction, and the ensuing societal collapse, will create as many as 1.2 billion climate refugees and risk the lives of even more. Food inflation that we’re seeing now is just the beginning of this dangerous trend. It is in our own self-interest and our moral obligation for Utah and the United States to end our dependency on greenhouse gas emitting dirty energy. Taking care of our local environment helps us take care of our shared world. 💚
...

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🤔 What does enacting the Endangered Species Act for the Wilson’s Phalarope mean for the Great Salt Lake? 

If we’re successful in achieving this status, an Endangered Species Act listing of the Wilson’s Phalarope would trigger a full range of protections that would likely include mandates around 💧water levels and ecosystem protections at the lake. The potential for federal involvement is a lever we hope will push our leaders to get serious about sending water to Great Salt Lake. 

💪 Help us make this launch as powerful as it can be so that we can address the great public health and ecological crises we face due to the drying Great Salt Lake. 

🎉 Join us on Thursday, March 28th at the Utah State Capitol from 11-12 pm MT for the campaign launch and celebration. 

Speakers will include Phalarope scientist Ryan Carle, Terry Tempest Williams, Ben Abbott (@growtheflow) Patrick Donnelly (@centerforbiod), representatives from @uphe and UYES and more. We’ll also have the Great Salt Lake Vigil bird puppets and signs showing our love for the lake.

❗️RSVP Link in Bio.

🤔 What does enacting the Endangered Species Act for the Wilson’s Phalarope mean for the Great Salt Lake?

If we’re successful in achieving this status, an Endangered Species Act listing of the Wilson’s Phalarope would trigger a full range of protections that would likely include mandates around 💧water levels and ecosystem protections at the lake. The potential for federal involvement is a lever we hope will push our leaders to get serious about sending water to Great Salt Lake.

💪 Help us make this launch as powerful as it can be so that we can address the great public health and ecological crises we face due to the drying Great Salt Lake.

🎉 Join us on Thursday, March 28th at the Utah State Capitol from 11-12 pm MT for the campaign launch and celebration.

Speakers will include Phalarope scientist Ryan Carle, Terry Tempest Williams, Ben Abbott (@growtheflow) Patrick Donnelly (@centerforbiod), representatives from @uphe and UYES and more. We’ll also have the Great Salt Lake Vigil bird puppets and signs showing our love for the lake.

❗️RSVP Link in Bio.
...

22 0
SAVE THE DATE to SAVE THE PHALAROPES! 🐦
March 28th (Thursday), 11am @ Utah State Capitol. 

Protecting wildlife is not our agenda, that is the worthy focus of many other groups. But in this case protecting this endangered bird that depends on the lake overlaps completely with protecting public health on the Wasatch Front.  If we allow the lake to continue to shrivel up we will have allowed a pollution nightmare (toxic dust storms) to unfold.  Wherever you have a pollution nightmare you find a public health nightmare if you look hard enough or wait long enough.

❗️RSVP Link in Bio.

SAVE THE DATE to SAVE THE PHALAROPES! 🐦
March 28th (Thursday), 11am @ Utah State Capitol.

Protecting wildlife is not our agenda, that is the worthy focus of many other groups. But in this case protecting this endangered bird that depends on the lake overlaps completely with protecting public health on the Wasatch Front. If we allow the lake to continue to shrivel up we will have allowed a pollution nightmare (toxic dust storms) to unfold. Wherever you have a pollution nightmare you find a public health nightmare if you look hard enough or wait long enough.

❗️RSVP Link in Bio.
...

31 0