United States: Diesel Litigation And Rulemaking

On January 1, Jones Day opened a new office in Houston with substantial environmental capabilities. Among other matters, the Houston Office is closely monitoring diesel issues and continues to help industry and municipalities stay in compliance and succeed in litigation. Our Houston attorneys prepared this Jones Day Commentaries.

December 2000 saw a flurry of diesel developments. EPA adopted more final diesel rules. The publication of a decade-long study by the New England Journal of Medicine on the health effects of fine particulate matters garnered national press coverage. States like Texas, Arizona, and California pressed forward with new emissions rules affecting those who operate, manufacture or lease diesel vehicles.

The EPA’s Final Rule. The EPA's rule on diesel engines and diesel fuel sulfur control was adopted with great federal fanfare. It establishes for the first time a list of 21 compounds classified as "mobile source air toxics," including diesel particulate matter ("PM") and diesel emission organic gases. In the December 21 announcement of the diesel rule package, President Clinton included references to respiratory illnesses and premature deaths, while EPA head Carol Browner focused on "coughing and irritation" from diesel exhaust.

A coalition of environmentalist and industry groups endorsed the sulfur content cuts from diesel fuel. Addressing that 95 percent reduction, the groups wrote to President Clinton: "While our organizations may not always agree on every issue, we agree on this." The Natural Resources Defense Council, the American Lung Association, and the Alliance of Automobile Manufacturers were among those signing the letter. Some trade groups, including the National Petrochemical & Refiners Association, opposed the speed of the adoption of a final rule. The Department of Energy had suggested that a longer-term phase-in could save fuel producers and consumers billions of dollars.

The Samet Study. The New England Journal of Medicine (NEJM) published a study led by Dr. J. Samet of Johns Hopkins University School of Public Health: "Fine Particulate Air Pollution and Mortality in 20 U.S. Cities, 1987 – 1994," followed by an editorial by Dr. J. Ware of Harvard’s School of Public Health. We should see both cited by plaintiffs and defendants in litigation focused on exposure to fine PM or diesel exhaust.

The Samet study concludes that there is "consistent evidence that the levels of fine [PM] in the air are associated with the risk of death from all causes and from cardiovascular and respiratory illnesses. These findings strengthen the rationale for controlling the levels of respirable particles." Concluding that PM₁₀ and PM_2.5 and even smaller PM negatively affects human health, summarizing and assessing epidemiological and public hygiene studies, the authors also remind us that concentrations of particulate air pollution have steadily declined since the early 1970s. Ware points out that since the scientific community does not know precisely how and why the fine PM negatively affects our health, it would now be prohibitively expensive and impractical to prevent such PM from entering our daily environment. Policy makers and industry are in a terrible position: While the scientific community claims to know the results of exposure to PM_2.5 and even smaller particles, it does not possess the sophistication to develop a solution.

State Developments. The TNRCC in Texas adopted a package of Houston-area SIP rules, including several affecting the use of diesel engines or diesel fuel. At the public meeting for the adoption of the rules, one trade organization protested the rule that would hold the owners of diesel fleets liable for lessee’s violating the idling limitations. While the TNRCC Commissioners expressed some willingness to add an amendment exempting such owners and placing responsibility on the lessees, the trade organization had prepared no substitute language, and the rule was ultimately adopted as written.

California adopted a tougher emission standards rule for 2005/2006 model diesel engines. Shortly after that adoption, Arizona’s Governor recommended that Arizona adopt similar standards, requiring diesel engines to switch to cleaner-burning fuel approved by the California Air Resources Boards ("CARB diesel"). Arizona reportedly hopes to use the CARB diesel to reduce haze in the greater Phoenix area.

The NEJM publication is a double-edged sword for the regulated industry. Its historically credible name carrying alarming language invites courtroom dramatics in toxic tort litigation. Advocates must be on alert and thoroughly anticipate the use and misuse of the study. The editorial conclusion that it is currently a mystery as to what can be done to prevent ill health effects from tiny PM should assist the defense response but should be carefully presented. National Public Radio, among others, covered the NEJM study. Samet and Ware spoke on NPR, agreeing that government should be concerned and should "look at strategies to control exposures to particles." Ware emphasized that fine PM less than 2.5 are increasingly believed to carry the important health component. Those, he said, seem extremely difficult to control or regulate.

Owners of leased fleets of vehicles could be held liable for idling emissions by vehicle operators in Texas. The owners lack control over the parking, delivery, and operating habits of those who lease such vehicles. Owners have even less control over the actions of the employees of commercially leased fleets. Regulatory noncompliance can cause both immediate and long-term financial damage to companies placed in such a position.

Delayed compliance with new EPA regulations is rarely a safe option, even when difficult to implement. The timing of compliance deadlines under the new rules can be difficult to understand, much less implement.