Diesel Brothers warn court loss will spawn wave of litigation against truck owners
A Utah environmental group’s victory over the Diesel Brothers in a Clean Air Act case will spur lawsuits against even individual owners of polluting vehicles, an attorney representing the reality TV stars contended Wednesday.
The 10th U.S. Circuit Court of Appeals in Denver heard arguments in the Diesel Brothers’ appeal of an $848,000 judgment for more than 400 violations of clean air laws.
Attorney Cole Cannon told a three-judge panel the citizen suit brought against the Diesel Brothers by Utah Physicians for a Healthy Environment opens the door for a wave of Clean Air Act cases against “mobile source” polluters.
“If we allow scientifically insignificant, untraceable standards, can you just sue anyone who drives a truck?” Cannon asked. “If this court upholds (the suit) these doctors, or quite literally anybody, could sue anyone. And what’s worse, get attorneys’ fees.”
He said state and federal agencies “are much better suited to enforce these sorts of things.”
The doctors group filed its suit in 2016 under Clean Air Act provisions that allow citizens to seek penalties against polluters. They often result when state or federal authorities do not act.
Reed Zars, the doctors’ attorney, told the circuit court the record of violations is clear, as evidenced by the decision in their favor last year by U.S. District Judge Robert Shelby in Salt Lake City.
“Under the Constitution, to establish injury one needs to show concrete injury or concrete threatened injury,” Zars said. “That, we believe, is sufficient to support a penalization of those sales (of trucks with devices that cheat emissions tests) to deter that practice.”
The Diesel Brothers, stars of a Discovery Channel show now in its seventh season, caught the doctors group’s attention for giving away smoke-spewing trucks in sweepstakes. The suit documented how the Diesel Brothers bought or equipped pickups with devices installed to defeat pollution controls and they sold defeat devices to private buyers nationwide.
Zars said in court Wednesday — arguments were made in a Zoom hearing and an audio stream was made available to the public — the doctors tested one of the modified trucks, finding it emitted 36 times more pollution than a stock diesel pickup.
The Diesel Brothers’ televised display of the “super spreader” trucks was “informing others how to do it,” he said.
Zars also said Cannon’s projection of a wave of suits is possible only “in theory.”
“These are heavy lifts that take a lot of time,” said Zars, whose firm recently was awarded almost $1 million in legal fees for the volume of work required to build its case against the Diesel Brothers.
Cannon said the Diesel Brothers do not want to “gut” the citizen suit option of the Clean Air Act, but he said it should be restricted to point and area sources, such as power plants.
The circuit judges seemed interested in the mobile-source issue and the questions of geography that influence pollution impact and define sources.
Zars said under questioning that the doctors group focused on the impact of the Diesel Brothers’ trucks on the Wasatch Front airshed and did not try to make a case against their trucks that ended up elsewhere.
Cannon had told the judges that more than a dozen trucks with defeat devices ended up outside Utah and therefore had no impact on Wasatch Front air. He said the three trucks that stayed in Utah were driven only 4,200 miles over five years and produced just 40 pounds of pollutants.
Zars said geographic factors “sort of balkanize” the practice of applying the law to mobile sources.
“You can move up to Wyoming and sell all your parts to Utah,” Zars said. “It’s problematic.”
One of the circuit judges said he saw inconsistency when considering the pollution in the distinct Wasatch airshed versus the nationwide impact of the Diesel Brothers’ actions.
“If we expand it (to consider the nationwide impact), you have no case,” the judge said.
“You can’t particularize your harm, but at the same time you want to recover penalties for harms that are occurring elsewhere,” he said. “How are we supposed to get through that? It seems deluded to me.”
The defendants are David Sparks, known as “Heavy D” on the TV show, Joshua Stuart and three corporate entities owned by Sparks. One of the Diesel Brothers, Keaton Hoskins, recently settled out of court with the doctors group.
The circuit court took the case under consideration. A ruling is expected within a few months.