Utah Physicians for a Healthy Env't, Inc. v. TAP Worldwide, LLC
| Decision Date | 25 January 2022 |
| Docket Number | Case No. 2:19-cv-00628-DBB |
| Citation | 582 F.Supp.3d 881 |
| Parties | UTAH PHYSICIANS FOR A HEALTHY ENVIRONMENT, INC., Plaintiff, v. TAP WORLDWIDE, LLC (d/b/a 4 Wheel Drive Hardware, Transamerican Auto Parts, United Web Sales, 4 Wheel Parts, 4 Wheel Parts Performance Center, and Transamerican Wholesale), Defendant. |
| Court | U.S. District Court — District of Utah |
Reed Zars, Pro Hac Vice, Attorney at Law, Laramie, WY, Michelle Amelia Newman, Park City, UT, for Plaintiff.
Brian Stansbury, Pro Hac Vice, Granta Y. Nakayama, Pro Hac Vice, King & Spalding LLP, Washington, DC, Erik A. Olson, Trevor C. Lang, Marshall Olson & Hull PC, Salt Lake City, UT, Logan S. MacCuish, Pro Hac Vice, King & Spalding LLP, Los Angeles, CA, for Defendant.
Utah Physicians for a Healthy Environment ("UPHE") brings this action against TAP Worldwide, LLC ("TAP") for violations of the Clean Air Act and Utah's corresponding State Implementation Plan ("the Utah SIP").1 TAP now moves to dismiss the action.2 Because the court has jurisdiction and TAP has not demonstrated that UPHE's Complaint is legally insufficient to state a claim, TAP's motion to dismiss is DENIED.
TAP is a company that does business in Utah; it allegedly sells and installs "aftermarket defeat parts" and removes emission control devices from vehicles.3 An "aftermarket defeat part" is a vehicle part that bypasses, defeats, or renders inoperative an emission control device in a motor vehicle.4
UPHE is an organization whose members are "particularly concerned with the significant contribution of motor vehicle exhaust to elevated levels of respirable particulate matter and ozone in the airshed of the Wasatch Front, and the negative impact that these pollutants have on the public's health."5 UPHE brought this citizen suit under the Clean Air Act and the Utah SIP to challenge TAP's alleged practice of selling and installing aftermarket defeat parts and removing emission control devices from vehicles.6 TAP now moves to dismiss the action because it argues that the Clean Air Act does not authorize this type of citizen suit, that UPHE does not have standing, and that UPHE has failed to state a claim for relief.7
Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when the complaint, standing alone, is legally insufficient to state a claim on which relief may be granted.8 Each cause of action must be supported by sufficient, well-pled facts to be plausible on its face.9 In reviewing a complaint on a Rule 12(b)(6) motion to dismiss, the court accepts all facts pleaded by the nonmoving party as true and makes all reasonable inferences from the pleadings in favor of the nonmoving party.10 But the court disregards "assertions devoid of factual allegations" that are nothing more than "conclusory" or "formulaic recitation[s]" of the law.11
Additionally, a motion to dismiss that asserts lack of standing is a challenge to this court's jurisdiction and is thus a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1).12 When a motion to dismiss actually implicates a court's jurisdiction, "the burden is on the party claiming jurisdiction to show it by a preponderance of the evidence."13
TAP offers three bases for dismissal: that the Clean Air Act does not authorize UPHE to bring a citizen suit to enforce its anti-tampering provisions, that UPHE does not have Article III standing to bring the suit, and that UPHE does not allege sufficient facts to sustain a cause of action. 14
The court will address these arguments in turn.
TAP's first argument for dismissal is that the Clean Air Act ("CAA") does not permit citizen suits to enforce the anti-tampering prohibitions of 42 U.S.C. § 7522.15 TAP contends that this means the court lacks subject matter jurisdiction over the case.16 In considering this same argument previously, the Tenth Circuit has noted that the issue is actually one of statutory standing and that "statutory standing is not jurisdictional."17 As such, this question does not implicate this court's subject matter jurisdiction, and UPHE does not bear a burden to demonstrate that the court has jurisdiction.18
Turning to the statute itself, the citizen-suit provision of the CAA, § 7604, permits "any person" to:
commence a civil action on his own behalf ... against any person ... who is alleged to have violated ... or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation.19
The Complaint does not allege that TAP violated an order issued by the Administrator or the State, but rather that TAP violated "an emission standard or limitation."20 So the question becomes, what is an "emission standard or limitation"?
Section 7604 defines "Emission standard or limitation under [the CAA]" to include, among other things, an "emission limitation, standard of performance or emission standard" and "any other standard [or] limitation ... established ... under any applicable State implementation plan approved by the [EPA] Administrator."21 In short, § 7604 does not define more granularly the specific terms "emission limitation" and "emission standard," but it does clarify that the overarching concepts include any "standard of performance" and also indicates that "any other standard [or] limitation" under an approved SIP would qualify.
Section 7602 provides further elaboration, defining an "emission limitation" and "emission standard" as:
[A] requirement established by the State or the [EPA] Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under [the CAA].22
And the same section defines a "standard of performance" to mean "a requirement of continuous emission reduction, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction."23
Finally, § 7522 prohibits the following:
"Element of design" is defined by the relevant regulation as "any control system (i.e., computer software, electronic control system, emission control system , computer logic) ... and/or hardware items on a motor vehicle or motor vehicle engine."25 Finally, "emission control system" is defined as "emission control devices, auxiliary emission control devices, engine modifications and strategies, and other elements of design designated by the Administrator used to control exhaust emissions of a vehicle."26
In sum, § 7522 and related regulations prohibit, among other things, "any person" from selling or installing any part or component that defeats or renders inoperative any device, hardware, or software "used to control exhaust emissions of a vehicle." They also prohibit any person from removing or rendering inoperative any device, hardware, or software "used to control exhaust emissions of a vehicle." The Complaint contains numerous fact allegations that TAP has removed emissions control devices, as well as sold and installed aftermarket emissions defeat parts.27
TAP argues that its alleged actions cannot give rise to a citizen suit under the CAA because "an ‘emission standard’ is unequivocally defined to mean a specific, non-discretionary legal limit on release of pollutants," that the definition is "narrow," and that there is a "clear distinction" between "emissions standards and limitations" and the content of § 7522.28
The Tenth Circuit recently considered the question of whether the CAA authorized citizen suits to enforce § 7522 in Diesel Power .29 Although the Tenth Circuit was analyzing the district court's decision for plain error and did not definitively decide the question, the Tenth Circuit's opinion is persuasive and this court defers to it.
As is the case here, the defendants in Diesel Power contended that § 7522 and Utah SIP Regulation R307-201-2 "do not implicate any ‘emission standard or limitation’ because both § 7522(a) and R-307-202-2 merely prohibit various acts related to emission-control and defeat devices, rather than imposing numerical limits on emissions."30 The Tenth Circuit found that "[d]efinitions within the CAA itself, however, refute this argument."31
The court then reviewed the relevant statutory language and concluded that:
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.... This argument has considerable force.32
Next, the Tenth Circuit noted the Supreme Court's expansive interpretation of "any standard relating to the control of emissions" in a different provision of the CAA in Engine Manufacturer's Ass'n v. South Coast Air Quality Management...
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