                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 NAVISTAR, INC.,

    Plaintiff,
                                                            Civil Action No. 11-769 (CKK)
      v.

 LISA P. JACKSON, Administrator, United
 States Environmental Protection Agency, et
 al.,

    Defendants.


                                 MEMORANDUM OPINION
                                    (January 17, 2012)

       Plaintiff Navistar, Inc., filed suit against Lisa P. Jackson, Administrator of the United

States Environmental Protection Agency, and the EPA itself (“Defendants” or “EPA”), seeking

to force the EPA to recall Model Year 2010 heavy-duty diesel engines equipped with liquid,

urea-based selective catalyst reduction (“SCR”) technology for failing to comply with emissions

standards promulgated under the Clean Air Act, 42 U.S.C. § 7401, et seq. The EPA moved for

summary judgment on the basis that Plaintiff’s Complaint fails to state a claim for relief. Defs.’

Mot. for Summ. J Dismissing Compl. for Failure to State a Claim upon which Relief may be

Granted, ECF No. [23]. Navistar moved for discovery pursuant to Federal Rule of Civil

Procedure 56(d). Pl.’s Mot. for Disc. Pursuant to Fed. R. Civ. P. 56(d), ECF No. [14]. Cummins

Inc., Daimler Trucks North America LLC, Detroit Diesel Corp., Mack Trucks, Inc., and Volvo

Group North America, LLC, which manufacture the engines in question and/or sell trucks

equipped with the engines, moved to intervene. Mot. to Intervene, ECF No. [13]. All three

motions have been fully briefed and are ripe for determination. For the reasons states below, the
Motion to Intervene shall be GRANTED. Navistar’s Motion for Discovery Pursuant to Federal

Rule of Civil Procedure 56(d) shall be DENIED, and Defendants’ Motion for Summary

Judgment Dismissing Complaint for Failure to State a Claim upon which Relief may be Granted

shall be GRANTED.1

                                        I. BACKGROUND

       A.        Statutory Framework

       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);2 Pl.’s Ex. 1 (Control

of Air Pollution from new Motor Vehicles: Heavy-Duty Engine and Vehicle Standards and

Highway Diesel Fuel Sulfur Control Requirements, 66 Fed. Reg. 5002). The Act further

requires the EPA to test all new motor vehicles and engines and issue certificates of conformity

with the applicable regulations. § 7525(a)(1); see 42 C.F.R. §§ 86.094.21-30 (regulating the

certification process); Pl.’s Ex. 2 (2/18/2009 Certification Requirements for Heavy-Duty Diesel

Engines Using Selective Catalyst Reduction (SCR) Technologies). All new engines and vehicles

must be certified by the EPA before they are sold, offered for sale, imported, or otherwise

introduced into commerce. § 7522(a)(1). Section 207(c)(1) provides a mechanism for the recall

of engines when the EPA finds previously certified engines do not conform to emissions

standards:


       1
         Although the Court’s conclusion is based on the record as a whole, the Court’s analysis
focused on the following documents, organized by the respective motion:
       •       [11] Defs.’ Mot. for Summ. J.; [21] Pl.’s Opp’n; and [23] Defs.’ Reply.
       •       [13] Mot. to Intervene; [18] Pl.’s Opp’n; and [20] Movant’s Reply.
       •       [14] Pl.’s Mot. for Disc.; [23] Defs.’ Opp’n; and [24] Pl.’s Reply.
       2
           Unless otherwise noted, all section references are to Title 42 of the United States Code.

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       If the Administrator determines that a substantial number of any class or category
       of vehicles or engines, although properly maintained and used, do not conform to
       the regulations prescribed under section 7521 of this title, when in actual use
       throughout their useful life (as determined under section 7521(d) of this title), he
       shall immediately notify the manufacturer thereof of such nonconformity, and he
       shall require the manufacturer to submit a plan for remedying the nonconformity
       of the vehicles or engines with respect to which such notification is given. The
       plan shall provide that the nonconformity of any such vehicles or engines which
       are properly used and maintained will be remedied at the expense of the
       manufacturer. If the manufacturer disagrees with such determination of
       nonconformity and so advises the Administrator, the Administrator shall afford
       the manufacturer and other interested persons an opportunity to present their
       views and evidence in support thereof at a public hearing. Unless, as a result of
       such hearing the Administrator withdraws such determination of nonconformity,
       he shall, within 60 days after the completion of such hearing, order the
       manufacturer to provide prompt notification of such nonconformity in accordance
       with paragraph (2).

§ 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.

       B.       Factual Background

       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.


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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.

                                     II. LEGAL STANDARD

“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).

         A party asserting that a fact cannot be or is genuinely disputed must support the
         assertion by:
         (A) citing to particular parts of materials in the record, including depositions,
         documents, electronically stored information, affidavits or declarations,
         stipulations (including those made for purposes of the motion only), admissions,
         interrogatory answers, or other materials); or
         (B) showing that the materials cited do not establish the absence or presence of a
         genuine dispute, or that an adverse party cannot produce admissible evidence to
         support the fact.

Fed. R. Civ. P. 56(c)(1). When considering a motion for summary judgment, the court may not

make credibility determinations or weigh the evidence; the evidence must be analyzed in the

                                                  4
light most favorable to the nonmoving party, with all justifiable inferences drawn in his favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “If material facts are at issue, or,

though undisputed, are susceptible to divergent inferences, summary judgment is not available.”

Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted).

                                III. MOTION TO INTERVENE

       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).

       A.      Timeliness

       Although the motion to intervene was filed nearly two and one half months after the


                                                  5
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.3

        B.       Interest

        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 movants have a sufficient interest to

support intervention as a matter of right.

        C.       Impairment of Interest and Standing

        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,



        3
            Although Plaintiff opposes the motion, Defendants take no position. Mot. to Intervene
at 2 n.2.

                                                  6
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.

        D.      Adequacy of Representation

        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


                                                   7
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.

               IV. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

       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 determination. Therefore,

Defendants are entitled to summary judgment.

       A.      Chevron Doctrine and EPA’s Interpretation of “Determination”

       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


                                                  8
“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 (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.

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. 91-1782, 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.

               1.      Reasonableness

       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


                                                   9
most reasonable.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 129 S.Ct. 1498, 1505

(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 significant

consequences, including potentially a recall of the offending engines. Finally, this construction

is consistent with the legislative history which indicates Congress expected that the

“determination” would be “based on” studies and inspections. Under Plaintiff’s interpretation,

possession of the studies themselves would amount to a “determination.” The EPA’s

requirement that the agency analyze the data and come to a written conclusion based on

information including studies, comports with what Congress envisioned.

               2.      Consistency with Statutory Purpose

       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


                                                 10
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.

       C.      Whether the EPA has Made the Relevant Determination

       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


                                                   11
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.

               1.     Whether the EPA has Made the Relevant Determination.

       Plaintiff contends that even under the standard articulated by the EPA, the agency has in

fact made a written determination that SCR equipped engines violate applicable emissions

regulations. Plaintiff specifically points to a public workshop and publication for comment of

revised certification requirements for SCR engines for subsequent model years. See Pl.’s Opp’n,

Ex. 5. Plaintiff argues in essence that by revising the certification requirements for new models

of SCR engines, the EPA necessarily admits that there are issues with the Model Year 2010

engines. The EPA explains in detail the flaws in Plaintiff’s argument in its Reply brief. See

Def.’s Reply at 5-10. The Court need not rehash Plaintiff’s assertions in detail, for this argument

is unpersuasive for two reasons. First, none of the documents cited by Plaintiff explicitly make

the finding required by section 207(c)(1). To the contrary, the proposal states that “current SCR

systems are highly effective in use.” Pl.’s Ex. 5 at 11-12. Moreover, the fact that the EPA has

developed new guidelines for the certification of future engines does not by definition mean that


                                                12
the prior guidelines were inadequate or that prior model year engines did not in fact meet the

requisite emissions standards. If new proposals necessarily meant prior engines had to be

recalled as Navistar would have the Court hold, the EPA would be forced to either (1) never

adapt its methodology to account for increased knowledge regarding emissions technology; or

(2) recall all existing engines whenever it made even modest revisions to certification

requirements. Second, as the EPA explains, the evidence provided by Navistar indicating the

SCR engines are non-conforming, reflect emissions from engines that were not “properly

maintained and used,” as section 207(c)(1) requires. See Pl.’s Opp’n at 7. Even if SCR engines

do not meet nitrous oxide emission standards when the system does not contain the proper

additive or when the system becomes disconnected, that does not mean the engines fail to meet

emissions standards when used properly. See Pl.’s Stmt. of Undisputed Facts ¶ 8. Plaintiff

provides no evidence that the EPA has determined that SCR equipped engines, when properly

maintained and properly used, do not meet nitrous oxide or other emission requirements.

               2.     Plaintiff’s Purported Need for Additional Discovery

       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,


                                                13
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 obligation to make. The EPA has not made the relevant determination, and the Court

cannot force it to do so. Any discovery “would be futile and would merely operate to require

[the EPA] to participate further in litigation in which it [has] been originally joined solely on the

basis of [Navistar’s] conjecture.” First Nat’l Bank of Ariz. V. Cities Serv. Co., 391 U.S. 253,

298-99 (1968).

                                       IV. CONCLUSION

       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 non-

conforming, 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


                                                 14
Plaintiff would be futile. Therefore this case is dismissed in its entirety.

       An appropriate Order accompanies this Memorandum Opinion.

Date: January 17, 2012

                                                             /s/
                                                       COLLEEN KOLLAR-KOTELLY
                                                       United States District Judge




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