Utah Physicians for a Healthy Env't v. Diesel Power Gear LLC

• Citation: 374 F.Supp.3d 1124
• Decision Date: 12 March 2019
• Docket Number: Case No. 2:17-cv-32
• Parties: UTAH PHYSICIANS FOR A HEALTHY ENVIRONMENT, Plaintiff, v. DIESEL POWER GEAR LLC, 4x4 Anything LLC, Sparks Motors LLC, David W. Sparks, David Kiley, Joshua Stuart, and Keaton Hoskins, Defendants.
• Court: U.S. District Court — District of Utah

374 F.Supp.3d 1124

UTAH PHYSICIANS FOR A HEALTHY ENVIRONMENT, Plaintiff,

v.DIESEL POWER GEAR LLC, 4x4 Anything LLC, Sparks Motors LLC, David W. Sparks, David Kiley, Joshua Stuart, and Keaton Hoskins, Defendants.

Case No. 2:17-cv-32

United States District Court, D. Utah.

Signed March 12, 2019

Reed Zars, Attorney At Law, Laramie, WY, for Plaintiff.

Cole S. Cannon, The Cannon Law Group PLLC, Janet M. Conway, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION AND ORDER

ROBERT J. SHELBY, United States Chief District Judge

Plaintiff Utah Physicians for a Healthy Environment (UPHE) brought this citizen enforcement action under the Clean Air Act (CAA). UPHE claims Defendants—three businesses and four individuals—violated the CAA and federally-enforceable Utah State Implementation Plan Regulations relating to the installation, removal, operation, and sale of emission control devices on diesel vehicles.¹ UPHE filed four Partial Motions for Summary Judgment.² Defendants also moved collectively for summary judgment.³ As explained below, Defendants' motion is denied. One of UPHE's motions is granted, one is denied, and two are granted in part and denied in part.

BACKGROUND

Defendant B&W Auto is a used automobile dealership that sells and repairs trucks, with a focus on custom built diesel trucks.⁴ Defendant David Sparks is owner and CEO of B&W Auto.⁵ Sparks also started and is CEO of Defendant Diesel Power Gear (DPG), a "lifestyle brand company" which sells "apparel and accessories for the diesel truck lifestyle."⁶ Defendant Joshua Stuart is CFO and COO of DPG.⁷ 4x4 Anything, a division of DPG, is a "drop shipment fulfillment online retailer."⁸

DieselSellerz.com is an online diesel truck marketplace that was previously dismissed from this case. Stuart is CFO and COO of DieselSeller.com. Defendant Keaton Hoskins was employed to provide sales and marketing services for DieselSellerz.com from 2013 through 2015.⁹

UPHE, a Utah-based non-profit organization, brought this suit asserting various CAA and Utah SIP claims against Defendants. UPHE claims Defendants modified diesel trucks in violation of emissions limitation standards, sold parts designed to evade emissions standards, and sold illegally-modified trucks. According to UPHE, Defendants' violations contribute pollution to air in the Wasatch Front, causing UPHE's members harm.¹⁰

As redress for these violations, UPHE seeks injunctive relief and civil penalties. On June 8, 2018, the court entered a stipulated preliminary injunction enjoining B&W Auto and Sparks from violating several provisions of the CAA.¹¹

LEGAL STANDARD

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."¹² A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."¹³ A fact is material if, under the governing substantive law, it could "affect the outcome of the suit."¹⁴ When applying this standard, the court is to "view the evidence and make all reasonable inferences in the light most favorable to the nonmoving party."¹⁵ "Cross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another."¹⁶

ANALYSIS

Defendants admit to conduct that violates the CAA but nevertheless move for summary judgment on all of UPHE's claims. They primarily argue UPHE lacks constitutional standing and that the individual Defendants cannot be held liable as "responsible corporate officers." UPHE moves for summary judgment on various claims in four separate Partial Motions for Summary Judgment. The court takes up the threshold issues raised in Defendants' Motion before turning to UPHE's Motions.

I. Standing

Defendants argue UPHE lacks standing to bring its claims. To satisfy Article III of the Constitution, a plaintiff must have standing to bring a claim in federal court.¹⁷ When the plaintiff is an association bringing suit on behalf of its members, it must show "[1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization's purposes, and [3] neither the claim asserted nor the relief requested required the participation of individual members in the lawsuit."¹⁸ Only the first element is in dispute here.¹⁹

To satisfy the first element, UPHE must show (1) at least one of its members has suffered an injury in fact that is "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to [Defendants' illegal conduct]; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."²⁰ For the reasons that follow, the court concludes UPHE meets this standard.²¹

A. Injury in Fact

At the summary judgment stage, a plaintiff must "set forth by affidavit or other evidence specific facts [demonstrating injury in fact], which for purposes of the summary judgment motion will be taken to be true."²² The relevant showing is "not injury to the environment but injury to the plaintiff."²³ And while "generalized harm" to the environment does not alone support standing, "if that harm in fact affects the recreational or even the mere [a]esthetic interest of the plaintiff, that will suffice."²⁴ A person who has "reasonable concerns" about pollution suffers injury in fact when their concerns directly affect their recreational, aesthetic, or economic interests.²⁵

UPHE provides affidavits from four of its members asserting various injuries relating to air pollution, including health and recreational harms.²⁶ Each of the members suffers adverse health effects from elevated air pollution in the Wasatch Front or exposure to diesel exhaust.²⁷ Some members are deterred from engaging in outdoor recreational activities due their concerns about fine particulate matter pollution.²⁸ For example, member Howie Garber states "when outdoor air pollution levels exceed 30 ug/m3 of PM2.5 I am forced to avoid all outdoor activities, including riding my road bike, due to health concerns ... The additional diesel exhaust emitted by [Defendants'] modified vehicles only exacerbates the health risks to me and anyone else breathing the air in the Wasatch Front."²⁹

These and other statements in UPHE's members' affidavits establish injury in fact.³⁰

B. Causation

To satisfy the second requirement of standing, a plaintiff must show its members' injuries are fairly traceable to the defendant's alleged violations and not "the result of the independent action of some third party not before the court."³¹ A plaintiff's burden on causation is "something less than the concept of ‘proximate cause,’ " but requires proof of at least a "substantial likelihood that the defendant's conduct caused plaintiff's injury in fact."³²

Although Defendants do not dispute their emissions contribute to air pollution in the Wasatch Front, they strenuously argue any pollution attributable to their violations is negligible in comparison to other sources of pollution. For that reason, Defendants maintain UPHE cannot fairly trace its members' injuries to Defendants' violations. Although both sides present compelling arguments, the court ultimately concludes UPHE has satisfied its burden to establish causation.

The Tenth Circuit has not adopted a standard for evaluating causation when many sources contribute to injury-causing air pollution. Previously, this court applied a standard proposed by UPHE³³ under which a plaintiff must "merely show that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged in the specific geographic area of concern."³⁴ Several circuits and district courts, including a district court in this Circuit,³⁵ have applied similar standards in environmental suits.³⁶

This standard was first applied in Clean Water Act cases, with good reason; when multiple parties discharge pollution into a single waterway, "the pollution of any one may be shown to cause some part of the injury suffered."³⁷ The standard accommodates the contributory nature of pollution in a specific location, and relieves plaintiffs of the burden to show "to a scientific certainty that the defendant's emissions, and only the defendant's emissions, are the source of the [harm]."³⁸ Were the rule otherwise, a defendant who polluted a lake could defeat standing merely by pointing to other sources of pollution in the lake.³⁹

Defendants urge a different "meaningful contribution" approach in this Clean Air Act case, drawing on a series of cases involving greenhouse gas (GHG) emissions starting with Massachusetts v. EPA .⁴⁰ In that case, the Supreme Court concluded Massachusetts had standing to challenge the EPA's refusal to regulate GHG emissions.⁴¹ Massachusetts asserted global warming-related injuries, including loss of coastal property due to rising sea levels. The EPA argued causation was not met because any GHG emissions from new motor vehicles "contributes so insignificantly to petitioners' injuries that the [EPA] cannot be haled into federal court to answer for them."⁴² The Court disagreed, noting that U.S. motor vehicle emissions amounted to more than 6% of worldwide carbon dioxide emissions—"a meaningful contribution to greenhouse gas concentrations and hence ... to global warming."⁴³

Absent that level of "meaningful contribution" to global warming, plaintiffs have struggled to meet the causation requirement in other GHG cases. For example, the Ninth Circuit found too attenuated an environmental group's claim that state agencies' failure to set emissions standards at oil refineries in Washington "contribute[d] to climate-related changes that result in [plaintiffs'] purported injuries."⁴⁴ Although the oil refineries were responsible for almost 6% of GHG emissions in Washington, the effect of those emissions on global climate change was "scientifically indiscernible."⁴⁵ The court noted a "natural...