Utah Physic. for Healthy Env't v. Diesel Power Gear ( 2021 )

Appellate Case: 20-4043 Document: 010110624784 Date Filed: 12/28/2021 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 28, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UTAH PHYSICIANS FOR A HEALTHY
ENVIRONMENT,
Plaintiff - Appellee,
v. No. 20-4043
DIESEL POWER GEAR, LLC; B&W
AUTO, LLC d/b/a Sparks Motors, LLC;
DAVID W. SPARKS; and JOSHUA
STUART,
Defendants - Appellants,
and
4x4 ANYTHING LLC,
Defendants.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:17-CV-00032-RJS)
_________________________________
Cole S. Cannon (Janet M. Conway, on the briefs), Cannon Law Group, Salt Lake City,
Utah, for Defendants-Appellants.
Reed Zars (George E. Hays, Bellevue, Washington, with him on the brief), Laramie,
Wyoming, for Plaintiff-Appellee.
_________________________________
Before HARTZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Appellate Case: 20-4043 Document: 010110624784 Date Filed: 12/28/2021 Page: 2
HARTZ, Circuit Judge.
_________________________________
Defendants’ businesses focus on large diesel trucks and related parts,
merchandise, and media. In 2017 Defendants were sued by Plaintiff Utah Physicians
for a Healthy Environment (UPHE), a nonprofit organization that alleged, among
other things, that Defendants were tampering with required emission-control devices
and installing so-called “defeat devices” in violation of the Clean Air Act (CAA) and
Utah’s State Implementation Plan. After a bench trial the court entered judgment in
favor of UPHE, finding Defendants collectively liable for hundreds of violations of
the CAA and Utah’s plan and assessing over $760,000 in civil penalties. On appeal
Defendants challenge UPHE’s Article III and statutory standing, the district court’s
inclusion of certain kinds of transactions in its tabulation of violations, and the
court’s penalty analysis. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in
part and reverse in part. Although we reject most of Defendants’ arguments, we must
remand to the district court for additional proceedings because (1) UPHE lacks
Article III standing to complain of conduct by Defendants that has not contributed to
air pollution in Utah’s Wasatch Front and (2) the district court needs to reevaluate the
seriousness of Defendants’ violations of the Utah plan’s anti-tampering provision.
I. STATUTORY FRAMEWORK
The CAA distributes responsibilities among the States and the federal
Environmental Protection Agency (EPA) in what has been called a “cooperative-
federalism approach.” US Magnesium, LLC v. EPA, 690 F.3d 1157, 1159 (10th Cir.
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2012). The EPA promulgates National Ambient Air Quality Standards (NAAQS),
which set limits on maximum concentrations of various pollutants. See Nat’l Parks
Conservation Ass’n, Inc. v. TVA, 480 F.3d 410, 412 (6th Cir. 2007); 42 U.S.C.
§ 7409. To date, the EPA has established NAAQS for six pollutants: carbon
monoxide, lead, oxides of nitrogen, ozone, sulfur oxides, and particulate matter (with
separate standards for PM10 (particles with a diameter less than 10 micrometers) and
PM2.5 (particles with a diameter less than 2.5 micrometers)). See 40 C.F.R. §§ 50.4–
12.
The States have the primary responsibility to ensure that those limits are
satisfied. See 42 U.S.C. § 7407(a). Each State must submit to the EPA a state
implementation plan (SIP) that “provides for implementation, maintenance, and
enforcement of [NAAQS].” Id. § 7410(a)(1). The SIP is subject to approval by the
EPA Administrator. See id. § 7410(k).
State SIP submissions must include “a list of all areas (or portions thereof) in
the State, designating [them] as” (1) nonattainment (areas that fail to meet, or
contribute to another area failing to meet, the NAAQS); (2) attainment (areas that
meet, and do not contribute to another area not meeting, the NAAQS); or
(3) unclassifiable (areas that cannot be classified on the basis of available
information). See id. § 7407(d). The EPA may modify a State’s proposed
designations (including boundaries) as necessary but must first give the State an
opportunity to respond. See id. § 7407(d)(1)(B)(ii). The consequences of being a
nonattainment area are significant. The State must submit a corrective plan, see id.
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§ 7502(c) (setting out requirements for nonattainment plan provisions); Ukeiley v.
EPA, 896 F.3d 1158, 1161 (10th Cir. 2018), and federal assistance is unavailable for
any activity that does not conform to the implementation plan, see 42 U.S.C.
§ 7506(c)(1), (5). Nonattainment areas may encompass territory in multiple states.
See id. § 7407(d)(1)(A)(i) (defining nonattainment area as “any area that does not
meet (or that contributes to ambient air quality in a nearby area that does not meet)
the national primary or secondary air quality standard for the pollutant” (emphasis
added)). For example, several PM2.5 nonattainment areas cross state boundaries.1
As a general rule, the States’ principal responsibility is stationary sources like
factories and power plants (governed by Title I of the CAA), while the EPA has
primary responsibility over mobile sources (governed by Title II of the Act).2 In
particular, SIPs must provide for administration and enforcement of the permitting
programs described in Title V of the CAA. See id. §§ 7410(a)(2)(C), 7661a(d). The
1
See Air Quality Designations for the 2006 24-Hour Fine Particle (PM2.5), 74
Fed. Reg. 58688, 58696 (Nov. 13, 2009) (identifying 24-hour PM2.5 nonattainment
areas in, for instance, (1) “Logan, UT-ID,” (2) “New York-N. New Jersey-Long
Island, NY-NJ-CT,” and (3) “Philadelphia-Wilmington, PA-NJ-DE”).
2
See Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1078–79 (D.C. Cir. 1996)
(“The CAA contemplated that the states would carry out their responsibility chiefly
by regulating stationary sources, such as factories and power plants.”); Approval and
Promulgation of Implementation Plans; California; California Mobile Source
Regulations, 83 Fed. Reg. 8403, 8403 (proposed Feb. 27, 2018) (“Emissions sources
contributing to ambient air pollution levels can be divided into two basic categories:
Stationary emissions sources and mobile emissions sources. As a general matter, the
CAA assigns stationary source regulation and SIP development responsibilities to the
states through title I of the Act and assigns mobile source regulation to the EPA
through title II of the Act.”).
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permit programs contained in SIP proposals must cover “[a]ny major source.” 40
C.F.R. § 70.3(a). “The general definition of ‘major source’ . . . includes any source
that emits or has the potential to emit 100 tons per year of any air pollutant. Lower
thresholds apply to emissions of hazardous air pollutants and to sources located in
certain nonattainment areas.” David R. Wooley & Elizabeth M. Morss, Clean Air Act
Handbook, § 8:7 n.1 (Sept. 2021 update); see 42 U.S.C. § 7602(j); 40 C.F.R.
§§ 70.2, 70.3(a). “Because EPA and the states have taken steps to exclude smaller
sources from the Title V permitting program, most Title V permits are issued to
‘major sources.’” Wooley & Morss, Clean Air Act Handbook § 8:7.
In contrast, mobile pollution sources, such as motor vehicles, are primarily
subject to EPA regulation under Title II of the CAA. “Th[is] regulatory difference”
between stationary and mobile sources has been attributed to “the difficulty of
subjecting motor vehicles, which readily move across state boundaries, to control by
individual states,” as well as Congress’s concern that allowing each State to fashion
its own regulations for motor vehicles would give rise to “an anarchic patchwork of
federal and state regulatory programs, a prospect which threatened to create
nightmares for the manufacturers.” Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1079
(D.C. Cir. 1996) (internal quotation marks omitted). In fact, the CAA explicitly
prohibits States and localities from “adopt[ing] or attempt[ing] to enforce any
standard relating to the control of emissions from new motor vehicles or new motor
vehicle engines subject to [Title II Motor Vehicle Emission and Fuel Standards].” 42
U.S.C. § 7543(a). The EPA has exempted only California from the prohibition
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against state or local emission standards for new motor vehicles. See Comm. for a
Better Arvin v. EPA, 786 F.3d 1169, 1174 (9th Cir. 2015); 42 U.S.C. § 7543(a),
(b)(1).
Of particular relevance to this litigation, Title II has two provisions to make
sure that emission-control devices required for new vehicles will be effective after
retail sale. One prohibits tampering with such devices. It makes it unlawful:
for any person to remove or render inoperative any device or element of
design installed on or in a motor vehicle or motor vehicle engine in
compliance with regulations under this subchapter prior to its sale and
delivery to the ultimate purchaser, or for any person knowingly to
remove or render inoperative any such device or element of design after
such sale and delivery to the ultimate purchaser[.]
42 U.S.C. § 7522(a)(3)(A). The other prohibits “defeat devices” that prevent the
original devices from performing as intended. It makes it unlawful:
for any person to manufacture or sell, or offer to sell, or install, any part
or component intended for use with, or as part of, any motor vehicle or
motor vehicle engine, where a principal effect of the part or component
is to bypass, defeat, or render inoperative any device or element of
design installed on or in a motor vehicle or motor vehicle engine in
compliance with regulations under this subchapter, and where the
person knows or should know that such part or component is being
offered for sale or installed for such use or put to such use[.]
Id. § 7522(a)(3)(B).
States may, however, “control, regulate, or restrict the use, operation, or
movement of registered or licensed motor vehicles.” Id. § 7543(d). This “preserves
state and local governments’ authority over post-sale motor vehicles.” In re
Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prods. Liab. Litig., 959 F.3d
1201, 1216 (9th Cir. 2020), cert denied sub nom. Volkswagen Grp. v. EPC of
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Hillsborough Cnty., No. 20-994, 2021 WL 5284826 (U.S. Nov. 15, 2021) [hereinafter
Counties] (emphasis added). In some circumstances a State SIP may be required to
include regulations on post-sale motor vehicles, such as by providing for an
emission-control inspection and maintenance program in certain ozone nonattainment
areas. See 42 U.S.C. § 7511a. Otherwise, SIP regulation of post-sale vehicles, such as
Utah’s anti-tampering provisions, is voluntary. See Counties, 959 F.3d at 1219–21
(counties’ post-sale anti-tampering rules neither expressly nor impliedly preempted
by CAA); 42 U.S.C. § 7410 (specifying what must be included in a SIP); id. § 7509
(penalties for state noncompliance). As the EPA stated in disapproving the anti-
tampering provisions in Texas’s SIP: “Texas’ statewide tampering prohibitions are
part of the state SIP but are not required under [42 U.S.C. § 7509(a)]. . . . Since State
tampering rules are not required by the [CAA], this final disapproval action does not
impose sanctions for failure to meet the Act requirements.” Approval &
Promulgation of Air Quality State Implementation Plans (SIP); Texas; Disapproval of
Revisions to the State Implementation Plan, 63 Fed. Reg. 6651, 6652 (Feb. 10, 1998)
(emphasis added).
Enforcement of clean-air law is also a joint federal-state responsibility,
although with some assistance from private citizens. An approved SIP “has the force
and effect of federal law,” and, like the CAA itself, can be enforced in federal court.
Espinosa v. Roswell Tower, Inc., 32 F.3d 491, 492 (10th Cir. 1994); see 42 U.S.C.
§ 7413(a)–(b). The CAA empowers the EPA to seek civil and administrative
penalties, issue orders requiring compliance, seek judicial injunctive relief, and even
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request the Attorney General to pursue criminal sanctions for violations of the CAA.
See 42 U.S.C. § 7413. The maximum civil penalty for violation of a SIP was
originally set at $25,000 per day per violation, see id. § 7413(b), and has since been
adjusted upward for inflation to more than $100,000.3 (Recall that the typical SIP
violation concerns a major source, such as a factory or power plant.) But enforcement
of Title II of the CAA (which concerns mobile sources such as cars and trucks),
subject to “certain limited exceptions,” is not covered “by the general enforcement
provisions of [42 U.S.C. § 7413].” Wooley & Morss, Clean Air Act Handbook,
§ 11:25. Instead, enforcement of the vehicle-related provisions in Title II is addressed
in 42 U.S.C. § 7524, which provides that “[a]ny person other than a manufacturer or
dealer who violates [42 U.S.C.] section 7522(a)(3)(A) [the CAA anti-tampering
provision] . . . or any person who violates section 7522(a)(3)(B) [the CAA defeat-
device provision] . . . shall be subject to a civil penalty of not more than $2,500 [now
about $5,000].”4 Further, violations of the CAA anti-tampering provision
3
Under the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L.
No. 101-410, 104 Stat. 890, and the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015, Pub. L. No. 114-74, § 701, 129 Stat. 584, 599, the EPA
has substantially increased the CAA statutory penalty amounts. See Civil Monetary
Penalty Inflation Adjustment, 85 Fed. Reg. 1751 (Jan. 13, 2020). For SIP violations
that occurred after November 2, 2015 and for which the penalties are assessed on or
after December 23, 2020, the maximum allowable penalty is $102,638 per day for
each violation. See 40 C.F.R. § 19.4 tbl.1.
4
40 C.F.R. § 19.4 sets forth inflation-adjusted penalty amounts for this
section, too. For tampering or defeat-device violations that occur after November 2,
2015 and for which the penalties are assessed on or after December 23, 2020, the
maximum allowable penalty is $4,876 for each violation. See 40 C.F.R. § 19.4 tbl.1.
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(§ 7522(a)(3)(A)) “shall constitute a separate offense with respect to each motor
vehicle or motor vehicle engine” (as opposed to making each act of tampering a
separate offense), while violations of the CAA defeat-device provision
(§ 7522(a)(3)(B)) “shall constitute a separate offense with respect to each part or
component.” Id. § 7524(a).
Private citizens may sue for any “violation of . . . an emission standard or
limitation under [the CAA].” 42 U.S.C. § 7604(a)(1). And the court may apply civil
penalties. See id.; US Magnesium, 690 F.3d at 1159. A State, however, is confined to
seeking only state-law remedies for violation of a SIP.5
Utah’s SIP was officially submitted in 1972. See 40 C.F.R. § 52.2324. That
submission and a number of proposed revisions have been approved by the EPA. See
5
See Espinosa, 32 F.3d at 493 (“There is no language in the [CAA] that
authorizes a state to bring a federal enforcement action.”); 40 C.F.R. § 70.11(establishing minimum requirements for state enforcement programs); Train v. Nat.
Res. Def. Council, Inc., 421 U.S. 60, 92 n.27 (1975) (noting availability, in addition
to federal enforcement by EPA and citizens, of “whatever state [enforcement]
procedures are available under the [SIP]”); W. Richard Bidstrup, Gale F. Hoffnagle,
& David Patrick, Clean Air Permits: Manager’s Guide to the 1990 Clean Air Act, §
915 (2011) (“Each state has its own laws authorizing civil and criminal enforcement
of its air pollution control laws and regulations.”).
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id. Relevant here, Utah SIP Regulation R307-201-26 prohibits tampering with
federally mandated emission-control devices.7
In addition to the substantive anti-tampering rules included in R307-201-2,
Utah state law also provides for penalties of up to $5,000 per day for any violation of
the State’s Environmental Quality Code or the lawful orders or rules adopted
thereunder. See Utah Code Ann. § 19-1-303.
II. BACKGROUND
Defendant Diesel Power Gear, LLC (DPG) is a “lifestyle brand company” that
sells apparel and other accessories that cater to “the diesel truck lifestyle.” Sparks
affidavit, Aplt. App., Vol. 3 at 50. Defendant B&W Auto, LLC—which also goes by
the trade name “Sparks Motors”—is a used-car dealership and repair shop in
Bountiful, Utah, which specializes in buying and making custom modifications to
large diesel trucks for resale. Defendant David Sparks is the manager and sole owner
of B&W and the chief executive officer and principal owner of DPG. Defendant
Joshua Stuart is a part-owner of DPG and its chief financial officer and chief
6
Although the version of the rule available on the EPA’s website (and
incorporated by reference into Utah’s SIP in 40 C.F.R. § 52.2324) is labeled R307-
201-2, it appears that a slightly different version of the rule labeled R307-201-4 has
since been adopted by the State of Utah, see Utah Admin. Code R307-201-4.
Although the differences between the two rules seem irrelevant to the issues on
appeal, R307-201-4 does not appear to have been approved yet by the EPA, so we
refer throughout the opinion to R307-201-2.
7
See Utah SIP: Table c, R307-201. Emission Standards: General Emission
Standards, EPA, https://www.epa.gov/sips-ut/utah-sip-table-c-r307-201-emission-
standards-general-emission-standards (last visited Nov. 1, 2021); 40 C.F.R.
§ 52.2324(c)(59)(i)(A).
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operating officer. Keaton Hoskins, named as a defendant in the original complaint,
has performed marketing for DieselSellerz.com, an online truck-classifieds website
affiliated with B&W and DPG. Original defendant 4x4 Anything is merely a d/b/a of
DPG.
B&W and DPG began to grow rapidly in 2013, “quickly bec[oming]
established names in the diesel truck community.” Id. at 52. This growth was partly
fueled by promotional videos posted to the internet and social-media platforms. The
business was also promoted through a sweepstakes which awarded B&W custom-
built trucks to the winners. In 2016 the Discovery Channel premiered “Diesel
Brothers,” a reality television show starring Sparks, Stuart, Hoskins, and David
Kiley, another part-owner and employee of DPG. The show “feature[d] diesel trucks
being custom built for off-road recreational use,” Sparks affidavit II, Aplt. App., Vol.
10 at 94, and averaged over two million viewers per episode in its first season.
UPHE is a nonprofit organization of Utah healthcare professionals and
concerned citizens. In July 2016 it provided written notice of its intent to sue DPG,
B&W, Sparks, and Stuart under the citizen-suit provision of the CAA, 42 U.S.C.
§ 7604.8 The notice alleged repeated and ongoing violations of the Act, including the
removal and circumvention of emission-control systems, as well as the advertisement
8
It also provided notice to and sued Kiley, DieselSellerz.com, 4x4 Anything,
LLC, and Hoskins, which are not named appellants because Kiley and
DieselSellerz.com were dismissed in district court; 4x4 Anything is merely a d/b/a of
DPG; and, after filing a notice of appeal, Hoskins settled with UPHE and the United
States and we dismissed his appeal.
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and sale of so-called “aftermarket defeat parts”—parts “that have the principal effect
of bypassing, defeating, or rendering inoperative emission control devices on
certified diesel vehicles,” Aplt. App., Vol. 1 at 76–77. UPHE also gave notice to the
Administrator of the EPA and the State of Utah, as required by 42 U.S.C.
§ 7604(b)(1). In October 2016 UPHE sent a supplemental letter to the same persons
and entities, identifying additional violations of regulations included in Utah’s SIP.
In January 2017 UPHE filed suit in the United States District Court for the
District of Utah. Its amended complaint asserted 25 claims under the CAA and
Utah’s SIP. The relevant claims can be grouped into five categories: (1) allegations
that B&W and Sparks removed existing emission-control devices from at least 17
diesel vehicles; (2) allegations that DPG, Sparks, and Stuart sold or offered to sell
aftermarket defeat parts; (3) allegations that B&W and Sparks installed aftermarket
defeat parts; (4) allegations that B&W, DPG, Sparks, and Stuart sold or offered to
sell vehicles with aftermarket defeat parts; and (5) allegations that B&W, DPG, and
Sparks owned and operated Utah-registered vehicles “without maintaining all
emission control systems and devices in operable condition,” id. at 146, in violation
of Utah SIP Regulation R307-201-2. UPHE alleged that these violations resulted in
“the excessive emission of harmful pollutants from diesel vehicles” into the airshed
of the Wasatch Front, id. at 29, an area in northern Utah home to more than three-
fourths of the State’s population. It said that these emissions “contribute to the[]
adverse [health] effects” experienced by its members, including impaired vision,
reduced lung capacity, sinus irritation, and coughing spells, and that they “suffer
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from a reduced enjoyment of life when they are forced to avoid [recreational]
activities . . ., or are unable to see with clarity the beautiful scenery that once was
visible, due to high pollution levels.” Id. at 33. UPHE sought declaratory and
injunctive relief, as well as civil monetary penalties available for violations of both
the CAA and Utah’s SIP.
The parties filed cross-motions for full or partial summary judgment.
Defendants sought summary judgment on each of UPHE’s 25 claims, arguing that
UPHE “lack[ed] standing to maintain this citizen suit under the [CAA]” because
“Defendants’ minimal contribution of increased emissions cannot be fairly traced to
[UPHE’s] injuries.” Aplt. App., Vol. 8 at 92. Alternatively, Defendants maintained
that even if UPHE did have standing, summary judgment on most of the claims
would still be appropriate on the merits. The district court denied Defendants’
motion. See Utah Physicians for a Healthy Env’t v. Diesel Power Gear LLC (UPHE
I), 374 F. Supp. 3d 1124, 1145 (D. Utah 2019). For its part, UPHE submitted
summary-judgment motions on many of its claims. Some of the motions were
successful, and the court then held a three-day bench trial to resolve the remaining
liability issues and to assess civil penalties. See Utah Physicians for a Healthy Env’t
v. Diesel Power Gear LLC (UPHE II), No. 2:17-cv-00032-RJS-DBP, 2020 WL
4282148, at *1 (D. Utah Mar. 6, 2020). The court determined that it could impose
statutory penalties totaling $117,290,620 against Defendants, but applying the seven
factors set forth in 42 U.S.C. § 7413(e)(1), see id. at *20, it imposed much smaller
penalties than the maximum permitted, and ultimately ordered B&W to pay
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$114,426; B&W and Sparks (jointly and severally) to pay $333,700; B&W, Sparks,
and DPG (jointly and severally) to pay $90,000; and DPG, Sparks, and Stuart (jointly
and severally) to pay $227,218. See id. at *27. It also granted injunctive relief,
permanently enjoining Defendants “from: (1) removing or rendering inoperative
federally-required emission control systems in diesel trucks; (2) installing parts or
components in diesel trucks that bypass, defeat, or render inoperative federally-
required emission control systems; (3) offering to sell or selling defeat parts;
(4) removing or making inoperable a federally-required emission control system,
device, or any part thereof; and (5) owning or operating vehicles with disabled
emission-control systems.” Id. Finally, the district court awarded UPHE its litigation
costs, including reasonable attorney fees. See id. at *28.
On appeal Defendants raise five challenges to the judgment. They argue
(1) that UPHE lacked Article III standing to bring any of the claims; (2) that the court
committed plain error in ruling that UPHE had statutory standing to pursue its claims
under the CAA; (3) that Defendants were not liable for CAA violations with respect
to vehicles awarded as sweepstakes prizes; (4) that Defendants were not liable for
CAA violations with respect to vehicles sold “as is”; and (5) that the court made
various errors in calculating the penalties.
We largely affirm the judgment of the district court. But we must remand for
further factual findings on one issue. We hold that UPHE lacks standing to seek
penalties for violations that did not cause the emission of pollutants in the Wasatch
Front, but the record needs further development to determine what adjustment, if any,
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must be made to the penalty assessment. Remand is also required because we hold
that the district court abused its discretion in weighing one of the penalty-assessment
criteria (namely, seriousness of the violation) in imposing penalties for tampering
under the SIP penalty provision.
III. DISCUSSION
A. Article III Standing
Article III of the Constitution limits the jurisdiction of the federal courts to
“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. An essential component
of a Case or Controversy is that the party bringing the action have standing. See
Habecker v. Town of Estes Park, 518 F.3d 1217, 1223 (10th Cir. 2008). Because
Defendants have raised serious questions about UPHE’s Article III standing to pursue
the claims against them, we address the matter at some length. We review de novo
the district court’s determination at summary judgment that UPHE has Article III
standing to pursue all its claims under the CAA and Utah’s SIP. See id.In general, a plaintiff has standing when “(1) it 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 the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Env’t
Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). “We refer to these three familiar
requirements as injury in fact, causation, and redressability.” Habecker, 518 F.3d at
1224. Additional requirements must be satisfied when the plaintiff is an organization
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suing on behalf of its members, such as UPHE in this case. The organization has
standing only “[1] when its members would otherwise have standing to sue in their
own right, [2] the interests at stake are germane to the organization’s purpose, and
[3] neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Laidlaw, 528 U.S. at 181. Because the second
and third conditions are unquestionably satisfied here (protecting the environment is
a core purpose of UPHE and the relief it seeks does not require the participation of
individual members, cf. Warth v. Seldin, 422 U.S. 490, 515–16 (1975) (homebuilders
association lacked standing to seek damages on behalf of its members when injuries
were “peculiar to the individual member[s] concerned, and both the fact and extent of
injury would require individualized proof”)), we focus solely on whether members of
UPHE would have standing in their own right.9
As for the standing of the individual members of UPHE, the first and third
requirements are not in serious doubt. Defendants do not dispute (nor do we see a
basis for them to do so) the district court’s determination that UPHE members
suffered injury in fact because of “adverse health effects from elevated air pollution
in the Wasatch Front or exposure to diesel exhaust” and reduced participation “in
outdoor recreational activities due [to] their concerns about fine particulate matter
9
The Supreme Court in United Food & Commercial Workers Union Local 751
v. Brown Group, Inc., 517 U.S. 544, 554–56 (1996), concluded that the first two
prongs of the organizational-standing test have an Article III element, although the
third does not and is solely a matter of prudential standing.
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pollution.” UPHE I, 374 F. Supp. 3d at 1132. Also, the members’ injuries are
redressable through both injunctive relief and the imposition of penalties on
wrongdoers whose violations were ongoing at the time UPHE filed suit. See Laidlaw,
528 U.S. at 186 (Environmental group had standing to seek not only injunctive relief,
but also civil penalties because by “encourag[ing] defendants to discontinue current
violations [of the Clean Water Act (CWA)] and deter[ring] them from committing
future ones, [civil penalties] afford redress to citizen plaintiffs who are injured or
threatened with injury as a consequence of ongoing unlawful conduct.”); Benham v.
Ozark Materials River Rock, LLC, 885 F.3d 1267, 1273 (10th Cir. 2018)
(“redressability element . . . handily met” in CWA citizen suit, since “the injunctive
relief and civil penalties sought by [the plaintiff] and ordered by the district court
w[ould] restore the unlawfully filled wetlands and deter future violations”).
There remains the question of causation: Are the injuries of the UPHE
members “fairly traceable to the challenged action[s]” of Defendants? Laidlaw, 528
U.S. at 180. Although “Article III does at least require proof of a substantial
likelihood that the defendant’s conduct caused plaintiff’s injury in fact,” it “demands
something less than the concept of proximate cause” found in tort law. Nova Health
Sys. v. Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005) (internal quotation marks
omitted); see Pub. Int. Rsch. Grp. of N.J., Inc. v. Powell Duffryn Terminals Inc., 913
F.2d 64, 72 (3d Cir. 1990) (“A plaintiff need not prove causation with absolute
scientific rigor to defeat a motion for summary judgment. The ‘fairly traceable’
requirement . . . is not equivalent to a requirement of tort causation.”).
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Defendants’ attack on UPHE’s standing has a factual component and a legal
component. Factually, they contend that their contribution to pollution in the
Wasatch Front is a negligible fraction of the total pollution that comes from a myriad
of sources. They assert: “The undisputed evidence at trial established the total
combined miles driven within the State of Utah for all B&W trucks is less than 4,285
miles. The maximum total excess emissions as a result of all B&W violations over
five years is less than .02 tons of NOx and .0004 tons of PM, compared to the
millions of tons of the same pollutants from other sources.” Aplt. Br. at 8–9 (citation
omitted); see also UPHE I, 374 F. Supp. 3d at 1134 (“[M]any sources contribut[e] to
air pollution in the Wasatch Front, including on-road mobile sources, wildfires, and
oil refineries.”). Legally, they claim that the fairly-traceable test for causation in the
standing context has been replaced by the meaningful-contribution test in the context
of air pollution. We begin with the legal component of Defendants’ argument.
The term meaningful contribution in the standing context first appeared in the
Supreme Court decision in Massachusetts v. EPA, 549 U.S. 497 (2007). The Court
determined that the Commonwealth of Massachusetts had standing to challenge the
EPA’s rejection of a petition for rulemaking to regulate greenhouse-gas emissions
from new motor vehicles. See id. at 510–11, 517, 526. In the course of the discussion
the Court observed that “[j]udged by any standard, U.S. motor-vehicle emissions
make a meaningful contribution to greenhouse gas concentrations and hence,
according to petitioners, to global warming.” Id. at 525 (emphasis added). But it is
far from clear how, if at all, the “meaningful contribution” language should affect our
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analysis here because Massachusetts arose in a context much different from that of
the present litigation. The alleged injury to Massachusetts was the loss of coastal
property. See id. at 522–23. The loss would be caused by rising sea levels (resulting
from the melting of ice and snow on land) that in turn resulted from a warming
climate. See id. at 521. The climate change would result from an increased
concentration of carbon dioxide in the world’s atmosphere. See id. at 523. The United
States transportation sector “account[ed] for more than 6% of worldwide carbon
dioxide emissions.” Id. at 524. The regulation sought by Massachusetts would apply
only to new vehicles, and the Court did not dispute that “predicted increases in
greenhouse gas emissions from developing nations, particularly China and India, are
likely to offset any marginal domestic decrease.” Id. at 523–24. But in light of the
significant percentage of worldwide carbon dioxide emissions arising from this
country’s transportation sector (a “meaningful contribution to greenhouse gas
concentrations”), the Court said that “reducing domestic automobile emissions is
hardly a tentative step.” Id. at 524–25 (emphasis added). It appears to us that the
Court’s use of the term meaningful contribution was to emphasize that despite the
length of the causal chain from regulation of new motor vehicles to the loss of coastal
property, the causal connection was a substantial one, not mere speculation. We
doubt that the Court was instituting a general meaningful-contribution requirement
that would apply even when the causal link is merely between the emission of
noxious gases and harm to those who breathe the air into which the gases are emitted.
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In addition, to adopt Defendants’ requirement that standing be granted only for
claims against the largest polluters would amount to major surgery on the CAA’s
citizen-suit provision. The purpose of citizen-suit provisions is to increase
enforcement of public law when the government lacks the resources or will to handle
the entire task. Without such provisions only the worst offenders are likely to fear
sanctions. Uncommon would be the case in which mobile sources of air pollution,
particularly a few motor vehicles, would be the target. This is an appropriate
circumstance in which to heed the admonition that “[c]ourts must afford due respect
to Congress’s decision to impose a statutory prohibition or obligation on a defendant,
and to grant a plaintiff a cause of action to sue over the defendant’s violation of that
statutory prohibition or obligation.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190,
2204 (2021); cf. id. at 2204–05 (“Congress may elevate to the status of legally
cognizable injuries concrete, de facto injuries that were previously inadequate in
law.”).10
10
This admonition has particular force when the plaintiff’s claim is similar to a
common-law cause of action but does not satisfy the requirements for that cause of
action because of considerations that do not apply to the statutory claim. See
TransUnion, 141 S. Ct. at 2204 (observing that “history and tradition offer a
meaningful guide to the types of cases that Article III empowers federal courts to
consider” and stating that “with respect to the concrete-harm requirement in
particular, . . . courts should assess whether the alleged injury to the plaintiff has a
‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a
lawsuit in American courts,” though “an exact duplicate” is not required (internal
quotation marks omitted)). For example, when, as here, there are multiple sufficient
sets of causes of an injury, the injured person has a claim against any negligent actor
responsible for one of the causes unless that actor’s “negligent conduct constitutes
only a trivial contribution to a causal set.” Restatement (Third) of Torts: Phys. &
Emot. Harm § 36 (2010) (emphasis added); see June v. Union Carbide Corp., 577
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Our view finds support, perhaps even a precedential mandate, in a decision of
this court handed down after the district court entered judgment. In Sierra Club v.
EPA, 964 F.3d 882, 887–88 (10th Cir. 2020), the plaintiff sued the EPA to compel it
to object to a CAA permit issued by Utah for an industrial plant referred to as the
“Hunter Plant.” For standing, the Sierra Club “allege[d] that its members
experience[d] air pollution because they live and work near the Hunter Plant” and
suffered from “health risks and diminished visibility of nearby national parks and
wilderness areas.” Id. at 888. In support of the proposition that the Hunter Plant
contributed to the pollution, the panel noted that the EPA had stated that air
emissions from the plant “cause or contribute to visibility impairment in nearby
national parks.” Id. (internal quotation marks omitted). The plant owner argued that
the Sierra Club could not establish causation because, among other reasons, “other
F.3d 1234, 1239–44 (10th Cir. 2009). But that common-law limitation on the cause
of action “has developed as a matter of fairness, equitable-loss distribution, and
administrative cost.” Restatement (Third) of Torts § 36 cmt. b. Those (non-causal)
considerations do not apply to the claims against Defendants since they have violated
federal law (so that sanctions would hardly be unfair) and the only remedies sought
are an injunction and civil penalties. See also Restatement (Second) of Torts § 840E
cmt. b (1979) (“Situations may arise in which each of several persons contributes to a
nuisance to a relatively slight extent, so that his contribution taken by itself would
not be an unreasonable one and so would not subject him to liability; but the
aggregate nuisance resulting from the contributions of all is a substantial
interference, which becomes an unreasonable one. In these cases the liability of each
contributor may depend upon whether he is aware of what the others are doing, so
that his own conduct becomes negligent or otherwise unreasonable in the light of that
knowledge. It may, for example, be unreasonable to pollute a stream to only a slight
extent, harmless in itself, when the defendant knows that pollution by others is
approaching or has reached the point where it causes or threatens serious interference
with the rights of those who use the water.”).
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sources contributed to the pollution.” Id. at 889. We rejected the argument, declaring
that “the existence of other contributors wouldn’t affect the Sierra Club’s standing.”
Id. Following a Fifth Circuit opinion under the Clean Water Act, Sierra Club, Lone
Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 558 (5th Cir. 1996), we said that
“[e]ven with other contributors, standing would still turn on whether the Sierra Club
had adequately attributed the pollution at least partly to the [EPA’s failure to object
to the permit for the Hunter Plant].” Sierra Club, 964 F.3d at 889.
Our view also appears to be in keeping with the view of courts in other circuits
that, except in one circumstance,11 a person injured by air or water pollution has
11
Plaintiffs claiming injury from climate change caused by greenhouse gases
have been denied standing to sue nearby emitters of greenhouse gases because the
causal link is too attenuated: a nearby source has no greater impact on the plaintiff
than a source on the other side of the earth. See, e.g., Wash. Env’t Council v. Bellon,
732 F.3d 1131, 1141–43 (9th Cir. 2013) (“the chain of causality between”
Defendants’ failure to limit greenhouse-gas emissions from Washington’s five oil
refineries and the plaintiffs’ climate-change related injuries, including reduced
recreational opportunities in the state’s mountains and property damage caused by
increased flooding along the state’s rivers, was “too attenuated” to support standing);
Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 476, 478–79
(D.C. Cir. 2009) (rejecting plaintiffs’ substantive theory of standing, which was
based on the reasoning that the Department of the Interior’s “approval of [a program
allowing for leasing of offshore lands for oil and gas drilling would] bring[] about
climate change, which in turn [would] adversely affect[] the species and ecosystems
of those . . . areas, thereby threatening [the plaintiffs’] enjoyment of [those] areas and
their inhabitants”); WildEarth Guardians v. Salazar, 880 F. Supp. 2d 77, 83–86
(D.D.C. 2012) (although plaintiffs claimed “recreational, aesthetic, and economic
interests in the areas adjacent to” tracts of land on which Bureau of Land
Management (BLM) had authorized leasing for coal mines, plaintiffs’ injuries, to the
extent based on impacts from climate change, were not fairly traceable to BLM
action); Amigos Bravos v. U.S. Bureau of Land Mgmt., 816 F. Supp. 2d 1118, 1135–
36 (D.N.M. 2011) (plaintiffs’ alleged climate-change injuries were not fairly
traceable to BLM’s approval of in-state oil-and-gas leases; “[w]ith [greenhouse
gases], every inhabitant of our planet is within the ‘zone of discharge’; consequently,
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standing under the CAA or the Clean Water Act to seek a remedy from a defendant
that emits the injurious pollutant in the geographic vicinity of where the person is
injured. See Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp., 968 F.3d 357, 370
(5th Cir. 2020) (no need for specific evidence of air pollution’s “geographic range
when plaintiffs sit squarely in the discharge zone of a polluting facility such that their
proximity speaks for itself” (brackets and internal quotation marks omitted)); Black
Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1276–77,
1280 (11th Cir. 2015) (members’ recreational and aesthetic injuries from visible
pollution were fairly traceable to coal-mining operations located upstream within the
same watershed); Sierra Club v. TVA, 430 F.3d 1337, 1339–40, 1345 (11th Cir. 2005)
(recreational and aesthetic harms suffered by members in “the natural areas around
the [defendant’s coal-fired electric power] plant” were fairly traceable to plant’s
violations of opacity standard included in Alabama SIP); Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 204 F.3d 149, 158–61 (4th Cir. 2000) (injury to
member’s waterfront property from water pollution was fairly traceable to smelting
facility four miles upstream when evidence indicated that discharge from the facility
could “impact the receiving waterway for a good distance downstream—well past
the issue of geographical proximity to the source of pollution may not be a proper
measure of the likelihood of one’s injury having been caused by a particular
polluter.”). The reasoning in these cases is consistent with the Supreme Court’s
reference to “meaningful contribution” in Massachusetts, 549 U.S. at 525, as
discussed above. But this appeal does not involve climate-change-related harms from
greenhouse gases, so the reasoning in these cases is inapplicable.
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[the member’s] property”); Cedar Point, 73 F.3d at 558 & n.24 (member’s injury was
fairly traceable to oil-and-gas well’s discharge of “produced water” into particular
area of Galveston Bay where member canoed and participated in other outdoor
activities); Powell Duffryn, 913 F.2d at 72–73 (plaintiff affidavits said that they
suffered aesthetic injury from oily or greasy sheen on water which was fairly
traceable to defendant’s discharge of oil and grease two miles upstream); WildEarth
Guardians, 880 F. Supp. 2d at 83, 86–87 (plaintiffs had standing to challenge BLM’s
approval of mining operations that would “lead to haze, smog, and dust clouds in
areas immediately adjacent to [the land to be mined],” where plaintiffs “ha[d]
recreational, aesthetic, and economic interests”); Concerned Citizens Around Murphy
v. Murphy Oil USA, Inc., 686 F. Supp. 2d 663, 669, 672–73 (E.D. La. 2010) (CAA
plaintiffs’ recreational and aesthetic injuries were fairly traceable to emissions from
oil refinery located blocks away). By showing a close geographical connection, the
plaintiff has “adequately attributed the pollution” to the source, Sierra Club, 964 F.3d
at 889, and the injury is “fairly traceable” to the polluter, Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (brackets, ellipsis, and internal quotation marks
omitted).
Defendants suggest that causation is lacking because this is a case “‘[w]here
the causal chain involves numerous third parties whose independent decisions
collectively have a significant effect on plaintiffs’ injuries.’” Aplt. Br. at 23 (quoting
Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1142 (9th Cir. 2013)). But there is no
such chain of causation here. The proposition relied on by Defendants can be traced
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to Supreme Court decisions denying standing to those challenging the grant of
government tax exemptions on the ground that entities receiving the exemptions
would halt their discriminatory practices if denied the exemptions. See, e.g., Allen v.
Wright, 468 U.S. 737, 756–61 (1984). The discrimination was not “fairly traceable”
to the grant of a tax exemption because the response to the denial of an exemption
was too speculative. Id. at 758. In this case, there is no speculation that Defendants’
unlawful conduct would cause the emission into the atmosphere of harmful
pollutants. The only relevant decisions to be made by independent third parties would
be to drive the vehicles improperly modified by Defendants, and the decisions to do
so were virtually inevitable.
We therefore hold that UPHE has standing to challenge Defendants’ violations
that contributed to the unhealthy air in the Wasatch Front. The EPA has determined
that the Salt Lake City area, which includes where Defendants conduct business, is a
nonattainment area for 24-hour levels of fine particulate matter (PM2.5).12 See 40
C.F.R. § 81.345. Those who reside in that area can fairly trace injuries they suffer
from the polluted air to any contributor of prohibited emissions in the area.
12
Fine particulate matter is one of the two main pollutants (the other being
nitrogen oxides) that UPHE alleges contribute to its members’ injuries. See UPHE I,
374 F. Supp. 3d at 1132 (“Some members are deterred from engaging in outdoor
recreational activities due [to] their concerns about fine particulate matter
pollution.”); see also UPHE II, 2020 WL 4282148, at *4 (finding that “[a] diesel
truck with all of its federally required emission control devices removed typically
emits . . . particulate matter at a rate of twenty-one times its original EPA certified
emission rate”).
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But what about CAA violations that did not cause the emission of pollutants in
the Salt Lake City nonattainment area? The appellate courts have recognized that a
plaintiff may lack standing to challenge actions by a too-distant polluter. In Friends
of the Earth, Inc. v. Crown Center Petroleum Corp., 95 F.3d 358 (5th Cir. 1996), for
instance, the Fifth Circuit held that a lake “located three tributaries and 18 miles
downstream from [the defendant’s] refinery” was too far away for one to infer a
causal link between the defendant’s discharge and the alleged injuries to the
plaintiff’s members’ use of the lake. Id. at 361. Deprived of this inference and having
failed to offer any “competent evidence that [the defendant’s] discharges ha[d] made
their way to . . . or would otherwise affect” the lake, the court concluded that the
plaintiff could not satisfy Article III’s causation requirement. Id.; see also Ctr. for
Biological Diversity v. EPA, 937 F.3d 533, 538–39 (5th Cir. 2019) (plaintiffs failed
to show sufficient “geographic proximity between [their] interests and the
discharges”; “[a] geographic area as big as the ‘Western and Central portions of the
Gulf [of Mexico]’ cannot support Article III standing.”).
The Seventh Circuit reached a similar conclusion in Texas Independent
Producers & Royalty Owners Ass’n v. EPA (TIPROA), 410 F.3d 964 (7th Cir. 2005).
In that case an environmental group sought to challenge an EPA General Permit
prescribing limits on storm-water discharge from construction sites. See id. at 969–
70. Attempting to establish standing, the group argued, among other things, that its
members used various bodies of polluted water affected by the discharges allowed
under the permit. See id. at 972. It pointed to notices filed by construction companies
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indicating their intent to “discharge under the General Permit in the bodies of water
used by [three of the group’s] affiants.” Id. at 973. The court rejected this argument,
pointing out that “the water bodies at issue span, in some cases, hundreds of miles,”
and concluding that, absent evidence of injury to “the portion of the river[s] used by
the [members],” the group had failed to establish fairly-traceable causation. Id.Likewise in Delaware Department of Natural Resources & Environmental
Control v. EPA, 785 F.3d 1 (D.C. Cir. 2015), the D.C. Circuit held that Delaware
lacked standing to challenge a portion of an EPA rule exempting generators “located
in remote areas” of the country from national emission standards, as “Delaware [had]
offer[ed] no evidence that backup generators in the remote-area subcategory are
located near enough to Delaware to pose a threat to the state’s air quality.” Id. at 8,
10; see id. at 10 (the “only examples” Delaware provided “of these remote locations
are references to the Powder River Basin of Wyoming and fields of generators visibly
evident across Wyoming and Colorado, and throughout Nebraska and California”
(ellipsis and internal quotation marks omitted)).
The need for geographic limitations as part of the traceability inquiry was
persuasively discussed in the Fifth Circuit’s Cedar Point decision, which limited the
reach of the Third Circuit’s expression in Powell Duffryn that the plaintiffs in that
case had standing because the defendant had discharged an excessive amount of
pollutant into a waterway in which the plaintiffs had an interest that could be
adversely affected by the pollutant, see Powell Duffryn, 913 F.2d at 72:
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Douglas was the only affiant who expressed an interest in that part of
Galveston Bay where Cedar Point’s discharge is located. It is true that a
strict application of the Powell Duffryn test does not demand that sort of
specificity, because the plaintiff need only show an interest in the
“waterway” into which the defendant is discharging a pollutant;
nevertheless, such a literal reading of Powell Duffryn may produce
results incongruous with our usual understanding of the Article III
standing requirements. For example, some “waterways” covered by the
CWA may be so large that plaintiffs should rightfully demonstrate a
more specific geographic or other causative nexus in order to satisfy the
“fairly traceable” element of standing. Therefore, while we find the
Powell Duffryn test useful for analyzing whether Douglas’s affidavit
meets the “fairly traceable” requirement, we recognize that it may not
be an appropriate standard in other CWA cases.
Cedar Point, 73 F.3d at 558 n.24 (emphasis added) (citations omitted); see also
Gaston Copper, 204 F.3d at 161 (“Rather than pinpointing the origins of particular
molecules, 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.” (emphasis added) (internal quotation marks omitted)); Black Warrior
Riverkeeper, 781 F.3d at 1280 (adopting the view of Gaston Copper); ExxonMobil,
968 F.3d at 370 (“Plaintiffs must demonstrate the existence of a specific geographic
or other causative nexus such that the [CAA] violation could have affected their
members.” (internal quotation marks omitted)); cf. Lujan, 504 U.S. at 558, 567 n.3
(petitioners had failed to demonstrate that they would suffer an injury in fact as a
result of a Secretary of the Interior interpretation of the Endangered Species Act
limiting its application to the “United States or the high seas”; “[t]he dissent may be
correct that the geographic remoteness of those members (here in the United States)
from Sri Lanka and Aswan does not ‘necessarily’ prevent [a finding of injury]—but it
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assuredly does so when no further facts have been brought forward (and respondents
have produced none) showing that the impact upon animals in those distant places
will in some fashion be reflected here”). Of course, specific scientific data may
establish a causal connection even to some distant sources. See ExxonMobil, 968 F.3d
at 370; Crown Ctr., 95 F.3d at 361; cf. Lujan, 504 U.S. at 567 n.3.
Defendants contend that the district court erred by finding that UPHE had
standing to pursue “violations that did not result in pollutants being discharged into
the Wasatch Front.” Aplt. Br. at 27. (Although this passage speaks of discharge into
the Wasatch Front, the line drawn by Defendants in much of its argument is between
vehicles driven in Utah and those that were not. We take it that Defendants are in
essence conceding that we can assume that a relevant vehicle driven in Utah was
driven within the Wasatch Front.) Defendant’s contention is not barred by our
holding that UPHE has standing to bring a number of its claims. “[S]tanding is not
dispensed in gross; rather, plaintiffs must demonstrate standing for each claim that
they press and for each form of relief that they seek (for example, injunctive relief
and damages).” TransUnion, 141 S. Ct. at 2208; see Colo. Outfitters Ass’n v.
Hickenlooper, 823 F.3d 537, 551 (10th Cir. 2016) (“[A] plaintiff must demonstrate
standing for each claim he or she seeks to press.” (original brackets and internal
quotation marks omitted)). UPHE must demonstrate that each of Defendants’
violations “cause[d] or contribute[d] to the kinds of injuries alleged,” Piney Run
Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., 268 F.3d 255, 264 (4th Cir. 2001)
(internal quotation marks omitted), or, as the district court put it, “show [that]
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Defendants’ violations contribute[d] nitrous oxides (NOx) and particulate matter
(PM) to air in the Wasatch Front,” UPHE I, 374 F. Supp. 3d at 1135; see
ExxonMobil, 968 F.3d at 365–66 (“[O]ne injury does not entitle a litigant to right
other wrongs that did not injure it. . . . [A CAA] plaintiff needs standing for each
violation for which it seeks a penalty.”). We therefore examine Defendants’ causation
objections to UPHE’s standing with respect to specific civil penalties.
Defendants point to violations related to vehicles eventually sold out-of-state
or to parts sold out-of-state or merely marketed and never sold. For vehicles
eventually sold or transferred to customers out-of-state, Defendants argue that “there
is simply no way to conclude that emissions from [these vehicles], which were only
briefly operated in Utah, . . . has [sic] harmed the Wasatch Front airshed.” Aplt. Br.
at 27–28.
We agree with the underlying principle stated by Defendants. Although
molecules of a nitrogen oxide produced in Oregon may certainly drift over to Utah,
greater geographical proximity is required to satisfy by itself the “fairly traceable”
test. But in one respect, we reject their argument. If the vehicle was driven, however
little, in the Salt Lake City area, UPHE has established that its members’ injuries
from excessive pollution can be fairly traced to the CAA violation; so standing can
be predicated on pollution from that vehicle.
But if the vehicle was never driven in Utah, or the defeat part was sold to
someone out-of-state, UPHE has not established standing. It has presented no
evidence of actual or imminent injury to its members caused by the emission of
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pollutants outside of Utah. Such evidence might be available if pollutants in, say,
southern Wyoming were contributing to the failure of the Salt Lake City area to meet
EPA air-quality standards and the EPA designated that part of Wyoming as included
in the Salt Lake City nonattainment area. See 42 U.S.C. § 7407(d)(1)(A)(i) (defining
nonattainment area as “any area that does not meet (or that contributes to ambient
air quality in a nearby area that does not meet) the national primary or secondary air
quality standard for the pollutant” (emphasis added)); Air Quality Designations for
the 2006 24-Hour Fine Particle (PM2.5), 74 Fed. Reg. 58688, 58696 (Nov. 13, 2009)
(identifying 24-hour PM2.5 nonattainment areas that included parts of more than one
State, for instance, “Logan, UT-ID,” “New York-N. New Jersey-Long Island, NY-
NJ-CT,” and “Philadelphia-Wilmington, PA-NJ-DE”). When the EPA has determined
that the plaintiff and the pollution emission are in the same nonattainment area, the
plaintiff could rely on that determination as adequate evidence (subject, of course, to
rebuttal by contrary evidence) that the emission is a cause of the harm to the plaintiff
from air pollution and therefore the plaintiff would have standing to seek sanctions
against the out-of-state polluter. Cf. Sierra Club, 964 F.3d at 889–90 (noting, in
support of its determination that the plaintiff had standing, that the EPA had stated
that air emissions from the polluter caused or contributed to impairment of visibility
at parks visited by plaintiff’s members).
But that is not the circumstance here. Because the nonattainment area
including the Wasatch Front does not extend into any other State, we do not presume
that pollutants emitted in another State contribute to injuries suffered by UPHE’s
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members. Nor has UPHE produced any other type of scientific evidence that
pollution outside of Utah contributes to unhealthful air in the Wasatch Front. We
conclude that UPHE does not have standing to bring its claims based on vehicles
never driven in Utah or defeat devices sold to persons outside Utah.
We also conclude, though for slightly different reasons, that UPHE lacks
standing to pursue claims for civil penalties related to defeat parts marketed but not
actually sold. UPHE cannot claim to have been actually injured by Defendants’
marketing (which plainly did not itself result in the emission of excess nitrogen
oxides or particulate matter into the Wasatch Front) and any threatened harm—such
as “the threat that consumers in Utah may be influenced by Defendants’
advertisements to buy and install the parts, resulting in an increase in emissions,”
Aplee. Br. at 22—is too “conjectural or hypothetical” to satisfy the injury-in-fact
requirement, particularly since Defendants apparently ceased marketing the defeat
parts after receiving UPHE’s notice of its intent to sue. See UPHE II, 2020 WL
4282148, at *9. It is not enough that there was a statutory violation. The claims based
on unsold defeat parts are similar to the claims brought by plaintiffs against a credit
reporting agency that allegedly failed to use reasonable procedures to ensure the
accuracy of their credit files but that never disclosed the allegedly false information
to third parties. See TransUnion, 141 S. Ct. at 2200. The Supreme Court held that
those plaintiffs lacked standing to sue for actual or statutory damages. See id. at
2209–13. Because the only claims at issue on this appeal are those for civil penalties,
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we need not address whether UPHE had standing to sue for injunctive relief relating
to unsold defeat devices.
To enable the district court to determine precisely which claims can be pursued
by UPHE, we must remand for further proceedings.
B. Statutory Standing
Defendants argue that UPHE lacks statutory standing under the CAA’s citizen-
suit provision to pursue its claims under either the CAA or Utah’s SIP because they
seek enforcement of “general statutory prohibitions . . . not defined under the CAA as
standards or limitations.” Aplt. Br. at 31. Because statutory standing is not
jurisdictional and Defendants failed to raise this issue below, we review only for
plain error. See Niemi v. Lasshofer, 728 F.3d 1252, 1262 (10th Cir. 2013) (issue of
statutory standing, if forfeited, would be reviewed for plain error). “Plain error is
(i) error, (ii) that is plain, which (iii) affects substantial rights, and which
(iv) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted). As we proceed to explain, the
district court likely did not err, and certainly did not plainly err, in ruling Defendants’
various tampering and defeat-device violations actionable under the CAA and Utah’s
SIP. Accordingly, we need not continue to the third and fourth elements of plain
error.
The CAA’s citizen-suit provision, 42 U.S.C. § 7604, provides in relevant part:
[A]ny person may commence a civil action on his own behalf—
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(1) against any person (including (i) the United States, and (ii) any other
governmental instrumentality or agency to the extent permitted by the
Eleventh Amendment to the Constitution) who is alleged to have
violated (if there is evidence that the alleged violation has been
repeated) or to be in violation of (A) an emission standard or limitation
under this chapter or (B) an order issued by the [EPA] Administrator or
a State with respect to such a standard or limitation[.]
42 U.S.C. § 7604(a). This provision permits a plaintiff to sue only when there has
been a violation of “an emission standard or limitation under this chapter [that is, the
CAA]” or an order “with respect to such a standard or limitation.” Id. § 7604(a)(1).
Defendants contend that UPHE’s underlying claims, brought under 42 U.S.C.
§ 7522(a) and Utah SIP Regulation R307-201-2, do not implicate any “emission
standard or limitation” because both § 7522(a) and R-307-201-2 merely prohibit
various acts related to emission-control and defeat devices, rather than imposing
numerical limits on emissions. Defendants suggest that these prohibitions should not
be regarded as emission standards or limitations but as “enforcement mechanisms”
enforceable only by the government and not by private citizens. Aplt. Reply Br. at
13.
Definitions within the CAA itself, however, refute this argument. The CAA’s
citizen-suit provision defines emission standard or limitation under this chapter 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.” 42
U.S.C. § 7604(f). Section 7602 in turn defines emission limitation and emission
standard to mean “a requirement established by the State or the [EPA] Administrator
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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 this chapter [the CAA].”
Id. § 7602(k) (emphasis added). And § 7602 defines standard of performance as “a
requirement of continuous emission reduction, including any requirement relating to
the operation or maintenance of a source to assure continuous emission reduction.”
Id. § 7602(l). Thus, § 7604 authorizes citizen suits against violations of any
“requirement established by the State or the [EPA] Administrator . . . 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],” and of any “requirement relating to the operation or maintenance of a source
to assure continuous emission reduction.”
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. Aplee. Br. at 28–29. This argument
has considerable force.
The Supreme Court has adopted essentially the same view, albeit when
interpreting a provision of the CAA to which the above statutory definitions did not
apply. In Engine Manufacturers Ass’n v. South Coast Air Quality Management
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District, 541 U.S. 246 (2004), the Court considered whether a provision of the CAA
preempting state or local adoption or enforcement of “‘any standard relating to the
control of emissions from new motor vehicles or new motion vehicle engines’”
extended to local rules barring fleet operators from purchasing or leasing vehicles not
in compliance with certain emission requirements. Id. at 248–49, 252 (emphasis
added) (quoting 42 U.S.C. § 7543(a)). The district and circuit courts had found no
preemption, interpreting the statutory language to “include only regulations that
compel manufacturers to meet specified emission limits.” Id. at 252. The Court
reversed, adopting a more expansive view:
“[S]tandard” is defined as that which “is established by authority,
custom, or general consent, as a model or example; criterion; test.”
Webster’s Second New International Dictionary 2455 (1945). The
criteria referred to in [42 U.S.C. § 7543(a)] relate to the emission
characteristics of a vehicle or engine. To meet them the vehicle or
engine must not emit more than a certain amount of a given pollutant,
must be equipped with a certain type of pollution-control device, or
must have some other design feature related to the control of emissions.
This interpretation is consistent with the use of “standard” throughout
Title II of the CAA (which governs emissions from moving sources) to
denote requirements such as numerical emission levels with which
vehicles or engines must comply, e.g., 42 U.S.C. § 7521(a)(3)(B)(ii), or
emission-control technology with which they must be equipped, e.g.,
§ 7521(a)(6).
Id. at 252–53 (emphasis added); see Counties, 959 F.3d at 1218 (applying South
Coast to hold that the county anti-tampering regulations at issue were “‘emissions
standards’ for purposes of [§ 7543(a)]”). The language interpreted by the Supreme
Court is not identical to the language at issue here; but if an anti-tampering
requirement has been interpreted as a standard “relating to the control of emissions,”
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42 U.S.C. § 7543(a), one would think that it would also be a “requirement relating to
the operation or maintenance of a source to assure continuous emission reduction,”
id. § 7602(l).
Defendants rely on a Ninth Circuit decision that analyzed the term “emission
standard or limitation” in the context of the CAA’s citizen-suit provision and
reasoned that it did not extend to “the generic statutory prohibitions in § 7522,” such
as those at issue here. In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., &
Prods. Liab. Litig., 894 F.3d 1030, 1041 (9th Cir. 2018) [hereinafter Fleshman].
Respectfully, we question the following analysis in Fleshman of the scope of the
citizen-suit provision:
For an example of an “emission standard,” consider 40 C.F.R.
§ 86.1811-04. That regulation establishes permissible emission levels of
nitrogen oxide (NOx) for “light-duty vehicles” like the vehicles at issue
in this case. See id. § 81.1811-04(c) (“Exhaust emissions from Tier 2
vehicles must not exceed the standards in Table S04-1 of this section at
full useful life .”). Unlike the statutory prohibitions in § 7522, which
were enacted by Congress, the regulation is “a requirement established
by the Administrator which limits the quantity, rate, or concentration of
emissions of air pollutants on a continuous basis.” § 7602(k).
Id. at 1041–42 (ellipses omitted). This narrow reading appears to overlook that
emission standard and standard of performance are both defined to encompass “any
requirement relating to the operation or maintenance of a source to assure continuous
emission reduction.” 42 U.S.C. § 7602(k), (l). By removing or defeating emission-
control devices like oxidation catalysts or diesel particulate filters, a person is
violating a specific requirement to maintain the diesel truck to assure continuous
emission reductions.
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Fleshman also seems to suggest that the anti-tampering provision of the CAA
was not a requisite standard because the § 7522 prohibitions were enacted by
Congress and therefore were not “requirement[s] established by the State or the
[EPA] Administrator,” id. § 7602(k), as would be necessary to come within the
definition of emission standard. See 894 F.3d at 1041–42. But we note that standard
of performance is defined so that it need not be a requirement established by the State
or the EPA Administrator. See id. § 7602(l). In addition, UPHE, unlike the plaintiff
in Fleshman, based its tampering and defeat-device claims not only on the statutory
provision, id. § 7522(a)(3), but also on the EPA regulations, see 40 C.F.R. § 86.1854-
12(a)(3)(i), (ii), imposing the same requirements.
In any event, we need not definitively resolve the question because if indeed
there was error, it was not plain. See Niemi, 728 F.3d at 1262. “An error is plain if it
is clear or obvious under current, well-settled law.” United States v. Faulkner, 950
F.3d 670, 678 (10th Cir. 2019) (internal quotation marks omitted). Because the
district court’s interpretation of the CAA’s citizen-suit provision was reasonable, and
a contrary result was not dictated by well-settled law, we reject Defendants’ plain-
error challenge to UPHE’s statutory standing.
C. Sweepstakes Giveaways
Defendants argue that the district court improperly imposed penalties with
respect to trucks awarded through sweepstakes. They state: “The District Court’s
interpretation that giveaway sweepstakes trucks are a ‘sale’ is contrary to Utah law,
and disregards the fact that a third to half of the sweepstakes entries are from free
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mail-in requests. The CAA requires a ‘sale’ of an emissions tampered vehicle to
violate this section.” Aplt. Br. at 40.13 We reject the argument.
The tampering provision, 42 U.S.C. § 7522(a)(3)(A), makes it unlawful:
for any person to remove or render inoperative any device or element of
design installed on or in a motor vehicle or motor vehicle engine in
compliance with regulations under this subchapter prior to its sale and
delivery to the ultimate purchaser, or for any person knowingly to
remove or render inoperative any such device or element of design after
such sale and delivery to the ultimate purchaser[.]
For purposes of this provision, ultimate purchaser “means, with respect to any new
motor vehicle or new motor vehicle engine, the first person who in good faith
purchases such new motor vehicle or new engine for purposes other than resale.” 42
U.S.C. § 7550(5).
The district court rejected Defendants’ argument on the ground that the
sweepstakes awards were sales, reasoning that “DPG asked for and received valuable
consideration in exchange for the conveyance of the trucks, in the form of direct
monetary benefits (increased sales) and indirect benefits (promotion of its brand).”
UPHE I, 374 F. Supp. 3d at 1144–45 (footnote omitted); see id. at 1145 (“The fact
that each particular winner contributed only a portion of the total consideration
13
The discussion of this issue in Defendants’ opening brief never quotes, or
even identifies, statutory language on which it is basing this argument. But since the
opening brief speaks of “an emissions tampered vehicle,” we conclude that
Defendants are referring to 42 U.S.C. § 7522(a)(3)(A) and not the defeat-device
language in § 7522(a)(3)(B). We note that earlier in the brief, Defendants
distinguished between tampering violations and defeat-device violations. See Aplt.
Br. at 33 (referring to “violations of the CAA’s tampering and defeat device
provisions”); id. at 37 (arguing that “only the government can enforce the CAA’s
tampering and defeat device provisions”).
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received by DPG does not preclude the existence of a sale.”). We review matters of
statutory interpretation de novo. See Pound v. Airosol Co., Inc., 498 F.3d 1089, 1094
(10th Cir. 2007).
We have reservations about the district court’s analysis. One may question
whether a lottery winner who paid nothing to obtain a lottery ticket (either by paying
cash or making a purchase of goods) has provided any consideration. See Albertson’s,
Inc. v. Hansen, 600 P.2d 982, 985–86 (Utah 1979). But we may reach the same result
with a somewhat different analysis. See Orner v. Shalala, 30 F.3d 1307, 1310 (10th
Cir. 1994) (“[W]e may affirm challenged decisions of the district court on alternative
grounds, so long as the record is sufficient to permit conclusions of law.”).
We affirm because, as we read the statute, there is no requirement that a
violator sell the vehicle. The provision can be violated by someone who removes or
renders inoperative a control device “prior to its sale and delivery to the ultimate
purchaser” or by someone who knowingly removes or renders inoperative such a
device after “sale and delivery to the ultimate purchaser.” 42 U.S.C. § 7522(a)(3)(A).
The only relevance of the sale to the ultimate purchaser is that if the tampering
occurs after such a sale, the tampering must be performed “knowingly.” But since
there is no question that Defendants’ actions were done knowingly, they are liable
regardless of when the sale to the ultimate purchaser has taken place or will take
place.
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In short, we reject Defendants’ argument that vehicles awarded as part of the
sweepstakes should have been excluded from the district court’s tabulation of
violations.
D. Sale of “As-Is” Vehicles
Under 42 U.S.C. § 7522(a)(3)(B) it is unlawful:
for any person to manufacture or sell, or offer to sell, or install, any part
or component intended for use with, or as part of, any motor vehicle or
motor vehicle engine, where a principal effect of the part or component
is to bypass, defeat, or render inoperative any device or element of
design installed on or in a motor vehicle or motor vehicle engine in
compliance with regulations under this subchapter, and where the
person knows or should know that such part or component is being
offered for sale or installed for such use or put to such use[.]
Defendants argue that the district court erred by including “pass-through sales of ‘as-
is’ trucks” in its tabulation of their CAA violations. Aplt. Br. at 43. They contend
that the provision “cannot be read as prohibiting the re-sale of a used vehicle
containing a defeat part that was installed by the previous owner.” Id. at 44.
Defendants point to other state and federal laws that exempt the sale of “as-is”
vehicles, see, e.g., Utah Code Ann. § 13-20-6(2) (limiting motor-vehicle-dealer
liability to written express warranties made apart from manufacturer warranties); 16
C.F.R. § 455.2(b)(1) (Federal Trade Commission regulation recognizing sales of
“vehicle[s] without any implied warranty, i.e., ‘as is,’”), and suggest that extending
§ 7522 to as-is sales would conflict with these other provisions.
Defendants’ argument is a nonstarter. The statute certainly does not explicitly
provide an exception for as-is sales. Nor does anything in the CAA provide a
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rationale for such an exception. On the contrary, the as-is nature of a sale concerns
only the relationship between the seller and the buyer, whereas the CAA’s concern is
the relationship between the user of the vehicle and the public that must suffer from
that vehicle’s emissions. Defendants offer no rationale for excusing injury to the
public just because the buyer is willing to accept the vehicle without warranties
(presumably for a lower price).
We recognize that the provision contains a scienter requirement—liability does
not attach unless the manufacturer or seller “knows or should know that such part or
component is being offered for sale or installed for such use or put to such use.” 42
U.S.C. § 7522(a)(3)(B) (emphasis added). There may be occasions in which an as-is
seller could reasonably claim that it had no reason to know that the vehicle contained
an illegal defeat device, and thus escape liability under § 7522(a)(3)(B). But an
ignorance defense is independent of whether the vehicle is sold with any warranties;
and in any event, Defendants have not claimed such ignorance. We affirm the district
court’s refusal to recognize an as-is defense for Defendants.
E. Penalties
Defendants raise several challenges to the penalties imposed by the district
court. We review for clear error “a district court’s findings of fact in support of a
CAA penalty.” Pound, 498 F.3d at 1094. “The district court’s weighing of those
facts, and its penalty determination, are reviewed for abuse of discretion.” Id. And
“we review de novo the statutory interpretation behind the district court’s decision.”
Id. (internal quotation marks omitted).
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Before addressing the specific challenges, however, we summarize the
penalties imposed upon Defendants and the statutory bases for those penalties.
 The district court found that Defendants removed a total of 37 emission-
control devices from eight trucks, giving rise to eight separate violations of
the CAA’s anti-tampering provision, 42 U.S.C. § 7522(a)(3)(A), see UPHE
II, 2020 WL 4282148, at *15–16; under § 7524(a) and 40 C.F.R. § 19.4, it
assessed Defendants’ maximum liability as $30,000 ($3,750 per violation),
see id., but ultimately imposed a penalty of only $25,000, see id. at *24.
 It found that Defendants installed a total of 24 defeat parts in 14 trucks,
giving rise to 24 separate violations of the CAA’s defeat-device provision,
42 U.S.C. § 7522(a)(3)(B), see id. at *16; under § 7524(a) and 40 C.F.R.
§ 19.4, it assessed Defendants’ maximum liability as $90,985 (between
$3,750 and $4,735 per violation, depending on the date), see id., but
ultimately imposed a penalty of only $80,000, see id. at *24.
 It found that Defendants advertised, sold, or offered to sell a total of 305
defeat parts, giving rise to 305 additional separate violations of the CAA’s
defeat-device provision, 42 U.S.C. § 7522(a)(3)(B), see id. at *17; under
§ 7524(a) and 40 C.F.R. § 19.4, it assessed Defendants’ maximum liability
as $1,356,510 (between $3,750 and $4,735 per violation, depending on the
date), see id., but ultimately imposed a penalty of only $407,218, see id. at
*24–25.
 It found that Defendants removed a total of 37 emission-control devices
from eight trucks, giving rise to 37 separate violations of the Utah SIP’s
emission-control provision, R307-201-2, see id. at *19; under § 7413(b)
and 40 C.F.R. § 19.4, it assessed Defendants’ maximum liability as
$1,387,500 ($37,500 per violation), see id., but ultimately imposed a
penalty of only $138,700, see id. at *25.
 It found that Defendants owned and operated multiple emissions-tampered
vehicles between January 12, 2012, and July 20, 2017, giving rise to
“numerous” additional violations of the Utah SIP’s emission-control
provision, R307-201-2, id. at *19; under § 7413(b) and 40 C.F.R. § 19.4, it
assessed Defendants’ maximum liability as $114,425,625 (between $37,500
and $99,681 per violation per day, depending on the date), see id., but
ultimately imposed a penalty of only $114,426, see id. at *25.
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Broken out by defendant, the district court ordered B&W to pay $114,426;
B&W and Sparks (jointly and severally) to pay $333,700; B&W, Sparks, and DPG
(jointly and severally) to pay $90,000; and DPG, Sparks, and Stuart (jointly and
severally) to pay $227,218. See UPHE II, 2020 WL 4282148, at *27.
The district court arrived at these amounts via the “top down” approach to
penalty analysis, first calculating Defendants’ maximum possible liability for
violations of the CAA and Utah’s SIP and then “determin[ing] what degree of
mitigation, if any is proper” according to the penalty-assessment criteria set forth in
42 U.S.C. § 7413(e). UPHE II, 2020 WL 4282148, at *20. Section 7413(e) directs
courts to consider, “in addition to such other factors as justice may require”:
the size of the business, the economic impact of the penalty on the
business, the violator’s full compliance history and good faith efforts to
comply, the duration of the violation as established by any credible
evidence (including evidence other than the applicable test method),
payment by the violator of penalties previously assessed for the same
violation, the economic benefit of noncompliance, and the seriousness
of the violation.
Weighing these factors separately for each category of violations, the court reduced
the total penalty amount by more than 99%, from $117,290,620 to $765,344. See
UPHE II, 2020 WL 4282148, at *23–25. By far the largest penalty reductions were
made with respect to Defendants’ SIP violations (the owning-and-operating
violations, in particular). Even so, the penalties imposed for violations of the Utah
SIP’s anti-tampering provision, R307-210-2, ($138,700, see UPHE II, 2020 WL
4282148, at *25) far exceeded those imposed for violations of the anti-tampering
provision contained in the CAA itself, 42 U.S.C. § 7522(a)(3)(A), ($25,000, see
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UPHE II, 2020 WL 4282148, at *24), despite the fact that both sets of violations
arose from the same conduct.
Defendants raise several challenges to the penalties imposed by the district
court. Some apply to all the penalties. Others concern only the penalties for
tampering imposed as violations of the Utah SIP. We begin with the challenges to the
tampering penalties imposed as violations of the SIP.
1. Penalties for tampering
As repeatedly noted above, the CAA has a specific penalty provision for a
violation of the anti-tampering provision, § 7522(a)(3)(A). Under § 7524(a) the
penalty for persons “other than a manufacturer or dealer” (which includes all
Defendants) is $2,500 (substantially increased for inflation) per vehicle and not per
day or per component tampered with. The Utah SIP, in contrast, treats as a separate
violation every component tampered with in a single vehicle. And the CAA penalty
for violation of a SIP is $25,000 (again increased for inflation) per day of violation.
See 42 U.S.C. § 7413(d)(1)(A).
Defendants present several theories for challenging the tampering penalty
imposed under the SIP, all of which derive from the observation that the CAA itself
imposes its own penalty for tampering with emission devices. First, Defendants argue
“that imposing civil penalties for violations under the CAA and Utah SIP for the
same statutory prohibited activity constitutes a double penalty.” Aplt. Br. at 45. They
rely on two opinions by this court stating that “‘double recovery is precluded when
alternative theories seeking the same relief are pled and tried together.’” Id. at 46
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(quoting Clappier v. Flynn, 605 F.2d 519, 530 (10th Cir. 1979), and Mason v. Okla.
Tpk. Auth., 115 F.3d 1442, 1459 (10th Cir. 1997), overruled on other grounds by TW
Telecom Holdings, Inc. v. Carolina Internet Ltd., 661 F.3d 495, 497 & n.2 (10th Cir.
2011)). Clappier can be distinguished because it concerned only compensatory
damages and was merely recognizing that a plaintiff should not be permitted to
recover more in compensatory damages than the loss incurred. Civil penalties,
however, are not imposed to compensate a party but to penalize the defendant.
More in point is Mason, which considered the imposition of punitive damages,
a remedy that is also not designed to compensate the victim but to penalize the
defendant. We wrote:
Although the rule against double recovery arises most often in the
context of compensatory damages, it applies to punitive damages as
well. For instance, courts have held frequently that a plaintiff may not
recover both punitive damages under a state tort law claim and treble
damages under a federal statutory claim, where the state and federal
claims arise from the same operative facts and merely represent
alternative theories of recovery.
Mason, 115 F.3d at 1459 (footnote omitted);14 see also New York v. United Parcel
Serv., Inc., 942 F.3d 554, 600 (2d Cir. 2019) (“Penalties cascading on a defendant
14
Mason limited its double-recovery principle to circumstances in which both
theories of recovery were “pled and tried together.” 115 F.3d at 1459. On that ground
one could distinguish “double recoveries” from recoveries in multiple suits filed by
distinct plaintiffs. See Counties, 959 F.3d at 1223–24 (rejecting Volkswagen’s
argument that prior settlement agreement reached with federal government for
violations of § 7522(a)(3)(A) and (B) precluded further liability for the same conduct
in subsequent civil suit brought by counties for violations of overlapping state and
local prohibitions).
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from several statutory regimes must be applied with great care when they result from
one underlying set of bad actions.”). But cf. Morse Diesel Int’l, Inc. v. United States,
79 Fed. Cl. 116, 121–22 (2007) (“The court disagrees with the view that imposing
civil penalties under the Anti-Kickback Act, and separate civil penalties and treble
damages under the False Claims Act for the same acts, is either duplicative or
prohibited.”).15
Defendants’ second theory is, in essence, that the penalties authorized for
violations of a state SIP must yield to the specific penalties set forth in § 7524(a) for
tampering with vehicle emissions controls. This theory may be in keeping with the
function of SIPs within the CAA framework. Their chief purpose is to regulate
stationary sources of pollution to attain air-quality standards established by the EPA.
They play only a limited role with respect to Title II of the CAA, which focuses on
mobile sources of pollution. Title II imposes just a few requirements on SIPs.16 To be
sure, a SIP may, as Utah’s does, establish further requirements on motor vehicles
(although only after sale to the ultimate purchaser), but the CAA does not generally
require them to. (Thus, when Texas adopted a SIP that, in the view of the EPA,
15
The government, by the way, had not sought double recovery in Morse,
stating that if it received the penalties and treble damages under the False Claims
Act, it would not pursue further penalties under the Anti-Kickback Act. See 79 Fed.
Cl. at 121.
16
See, e.g., 42 U.S.C. § 7545(m)(1)(A) (mandating oxygenated-gasoline
requirements in SIPs for certain carbon monoxide nonattainment areas); id.§ 7586(a)(1) (requiring SIPs to have clean-fuel vehicle programs for fleets in certain
nonattainment areas).
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contradicted federal law governing tampering with motor-vehicle emission devices,
the EPA disapproved of the SIP but assessed no penalty on Texas because it had no
duty to address tampering in its SIP.17) One might infer that when Congress set the
penalty for violation of a SIP, it was contemplating violations by power plants and
factories, not motor vehicles. In particular, Defendants’ apparent view is that a proper
understanding of the CAA requires interpreting the SIP penalty provision as not
permitting imposition of a penalty for violation of a SIP provision that duplicates the
CAA’s anti-tampering provision.18 Cf. Loving v. IRS, 742 F.3d 1013, 1020 (D.C. Cir.
2014) (Kavanaugh, J.) (rejecting interpretation of a general statutory penalty
provision as conveying to the IRS a “heretofore undiscovered carte blanche grant of
authority . . . to impose an array of penalties” on tax-return preparers for conduct
already specifically targeted by a comprehensive penalty scheme in the Tax Code).19
17
See Approval & Promulgation of Air Quality State Implementation Plans
(SIP); Texas; Disapproval of Revisions to the State Implementation Plan, 63 Fed.
Reg. 6651 (Feb. 10, 1998).
18
As best we can tell, there is only one other circumstance in which a violation
of a SIP could also be a violation of a provision in Title II for which there is a
specific penalty in Title II. Penalties for violations of certain fuel regulations are
provided by 42 U.S.C. § 7545(d)(1). And a SIP may include a fuel regulation if the
EPA finds that the regulation is necessary to achieve NAAQS. See id.§ 7545(c)(4)(C)(i).
19
Even if this argument of Defendants is correct, it would not necessarily
foreclose States from setting their own penalty provisions for violation of their SIPs.
For instance, the Ninth Circuit’s decision in Counties suggests that defendants may
properly face liability under federal law for violation of anti-tampering provisions
included in the CAA and under state law for violation of the relevant State’s SIP. See
959 F.3d at 1223–25.
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Neither of Defendants’ arguments is frivolous. But we need not resolve them
at this time. That is because another of their arguments—that the district court did not
properly apply the statutory factors in evaluating the size of the penalty—is
persuasive with respect to the SIP anti-tampering violations, so we must reverse and
remand for reconsideration of those penalties. The analysis is straightforward.
The CAA provides assessment criteria to be used in judicial and administrative
proceedings when imposing penalties. It states:
In determining the amount of any penalty to be assessed under
this section or section 7604(a) of this title, the Administrator or the
court, as appropriate, shall take into consideration (in addition to such
other factors as justice may require) the size of the business, the
economic impact of the penalty on the business, the violator’s full
compliance history and good faith efforts to comply, the duration of the
violation as established by any credible evidence (including evidence
other than the applicable test method), payment by the violator of
penalties previously assessed for the same violation, the economic
benefit of noncompliance, and the seriousness of the violation.
42 U.S.C. § 7413(e)(1) (emphasis added).
We focus here on “the seriousness of the violation.” The district court noted
that in evaluating the seriousness-of-the-violation factor, courts have considered
“(1) the number of violations; (2) the duration of noncompliance; (3) the significance
of the violation (degree of exceedance and relative importance of the provision
violated); and (4) the actual or potential harm to human health and the environment.”
UPHE II, 2020 WL 4282148, at *22 (internal quotation marks omitted). The court
determined that the seriousness of the violation “weigh[ed] against mitigating
penalties.” Id. at *25 (emphasis added). But in so doing, the district court did not
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give proper weight, if it gave any weight at all, to the judgment of Congress
regarding the severity of the tampering violations. We seek “objective indications of
the seriousness with which society regards the offense.” Frank v. United States, 395
U.S. 147, 148 (1969) (holding that a “petty” offense, for which jury trial is not
required, is one for which the maximum sentence is no greater than six months). And
when considering the seriousness of an offense for purposes of federal law, there
could be no better objective indication than the penalty authorized by Congress for
the specific conduct. See United States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1309
(11th Cir. 1999) (“Because Congress is a representative body, its pronouncements
regarding the appropriate range of fines for a crime represent the collective opinion
of the American people as to what is and is not excessive.”). For example, when
assessing the propriety of a punitive-damages award, courts may compare the award
to the civil penalties that could be imposed for comparable misconduct to “accord
substantial deference to legislative judgments concerning appropriate sanctions for
the conduct at issue.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 583 (1996)
(internal quotation marks omitted). In this case we need look no further than the CAA
itself. See Arizona v. ASARCO LLC, 773 F.3d 1050, 1058 (9th Cir. 2014) (en banc)
(“Here, Congress has made a reasoned judgment not simply as to analogous criminal
or civil penalties, but as to punitive damages awarded in cases like the one at hand.
We need not search outside the statutory scheme Congress enacted for legislative
guidance in other contexts.”).
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For persons other than manufacturers or dealers, the maximum penalty for
tampering with a motor vehicle, no matter what the aggravating factors, was set by
Congress at $2,500. See 42 U.S.C. § 7524(a). Such a clear signpost cannot be
ignored. True, violations of requirements in SIPs are subject to a higher penalty cap.
See id. § 7413(b) (“not more than $25,000 per day for each violation”). But the fact
that a factory or an industrial plant contaminating the atmosphere (and it cannot be
gainsaid that such stationary polluters are the bread-and-butter of a SIP) may merit a
much higher penalty is hardly ground for imposition of similar penalties for
tampering with an automobile emission system. The very fact that one of the
statutory assessment criteria is “seriousness of the violation” testifies to the need for
an individualized assessment of each violation.
We therefore must hold that the district court abused its discretion in weighing
the seriousness-of-the-violation factor against Defendants in calculating penalties for
violations of the Utah SIP’s anti-tampering provision. We vacate the penalties
associated with those violations and remand for the district court’s reconsideration.
2. Other challenges to the penalties
Our remand for reconsideration of the SIP anti-tampering penalties, however,
represents the only respect in which we agree with Defendants’ arguments regarding
the penalties assessed against them.
To begin with, we see no other abuse of discretion in assessing the statutory
factors for imposition of penalties. In all other respects, the district court’s careful
evaluation of the factors evinced the essence of judicial discretion. We do note,
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however, that after judgment was entered Defendants presented some evidence of
financial reverses that led to a district-court order conditionally granting a motion
staying execution of the judgment. Reconsideration of the penalties in light of any
such developments is authorized on remand.
Finally, Defendants argue that the penalties imposed on them for violations of
Utah’s SIP are “excessive and disproportionate to the gravity of the violations,” and
therefore unconstitutional under the Eighth Amendment. Aplt. Br. at 47. They attack
what they call the “outrageously excessive” $114 million starting point calculated by
the district court for owning-and-operating violations by B&W. Id. But that is not the
penalty the court imposed. Although employing the top-down approach that starts
with the statutory maximum, the court lowered the owning-and-operating penalties
by more than 99.8%, to $114,426 for B&W. See UPHE II, 2020 WL 4282148, at *19,
*25. The test for whether a fine is excessive under the Eighth Amendment is whether
“it is grossly disproportional to the gravity of a defendant’s offense.” United States v.
Bajakajian, 524 U.S. 321, 334 (1998). In light of the flagrant misconduct by
Defendants, we see no gross disproportion. They have brought to our attention no
comparable case in which a civil penalty was held to violate the Eighth Amendment.
IV. CONCLUSION
The judgment of the district court is AFFIRMED IN PART and REVERSED
IN PART. On remand, the court shall make findings regarding which, if any, of the
vehicles sold or awarded to out-of-state customers were driven or operated in Utah
before sale. The following categories of violations shall then be excluded from the
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total liability: (a) violations based on vehicles sold or awarded to out-of-state
customers without first being driven or operated in Utah; (b) violations based on
defeat parts sold to out-of-state customers; and (c) violations based on marketing (but
not sale) of defeat parts. Finally, the court will need to reassess appropriate penalties
under the CAA and Utah’s SIP in a manner consistent with this opinion, taking into
account the same factors as before, as well as any additional information the court
deems relevant.
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