Navistar, EPA Settle Lawsuit Over 2010 Engine Guidance

This story appears in the May 10 print edition of Transport Topics.

Navistar International Corp. announced that it has resolved its lawsuit against the U.S. Environmental Protection Agency, which had challenged EPA’s guidance to engine makers for certification of 2010 engines using selective catalytic reduction to cut emissions.

Navistar, whose International trucks are the only Class 8 vehicles not using SCR to meet EPA’s 2010 requirements, said it was pleased with the settlement, in which it said EPA agreed to “engage in a public process to reexamine its policies, for future 2011 and later model year engines” and “provide a thorough review of EPA’s policies regarding operation of SCR-equipped engines.”

“We are pleased with this agreement and look forward to participating in the public process,” Jack Allen, president of Navistar’s North American Truck Group, said in a May 4 statement.

An EPA spokeswoman referred to a May 3 filing with the U.S. Court of Appeals’ D.C. Circuit, signed by Justice Department and Navistar attorneys.

The Warrenville, Ill., original equipment manufacturer announced the conclusion of its 15-month legal challenge to the EPA about a week after the company signed an agreement with the California Air Resources Board on a similar issue (5-3, p. 3; click here for previous story).

Navistar has stood alone in offering exhaust gas recirculation technology without the assistance of SCR to meet EPA’s January deadline to lower nitrogen oxide emissions from diesel engines. The company filed a lawsuit against EPA in March 2009 in the federal appellate court, saying the agency’s certification guidance from the previous month did not follow proper public procedures (6-8-09, p. 1; click here for previous story).

An attorney representing many of the truck and engine makers’ competitors claimed “total victory” and said winding down the case was good for his clients and their truck-buying customers.

“The case is completely over,” said Patrick Raher of the Hogan Lovells law firm in Washington, D.C., representing independent engine maker Cummins Inc., Daimler Trucks North America and Volvo Group, He said Navistar tried to stop EPA and the manufacturers using SCR, “but Navistar couldn’t and they gave up.”

EPA and Navistar, in a joint motion, asked the appellate court to drop a scheduled May 10 court date for oral arguments in the case, and asked the court to place the case in abeyance. The Justice Department attorney in charge of the case was not available for comment by deadline for this issue.

EPA and Navistar, the document said, “have engaged in settlement negotiations regarding the matters placed in dispute by the petitions and have reached a full settlement in principle; however, the Department of Justice must approve the settlement and public comment on the settlement in principle must be sought . . . before the settlement can be finalized.”

The competitors’ attorney, Raher, said his discussions with EPA and Justice Department attorneys lead him to believe the agreement will contain provisions to keep Navistar from further challenging EPA’s compliance certificates for SCR certificates at least through Dec. 31, 2011, but Navistar said it had not totally given up its right to sue EPA.

“When the cases are dismissed, Navistar won’t be allowed to bring them up again and they won’t be allowed to challenge the certificates of compliance that have been approved . . . We see this as total victory and are very pleased,” Raher said.

Navistar spokesman Roy Wiley said the company retains the right to challenge new actions by EPA on the subject.

“It is true that Navistar agreed to put the past at rest with EPA because the agency agreed to hold a public process to address the issues that we were asking the court to order. We fully expect that EPA will require SCR-equipped trucks to meet the emission requirements,” Wiley said.

“However, our agreement also provides that Navistar retains all rights to challenge new EPA action and can ask for any order from the court that Navistar believes is appropriate,” Wiley added.