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Utah environmental group has standing to sue Diesel Brothers, court says

By Tim Vandenack - | Dec 29, 2021

Photo supplied, Discovery Channel

David "Heavy D" Sparks and "Diesel Dave" Kiley are pictured in an undated Discovery Channel publicity photo.

DENVER — A federal appeals court in Denver says Utah Physicians for a Healthy Environment has standing to sue the Diesel Brothers entity for violations of the federal Clean Air Act stemming from the Davis County business’s operations.

The decision from the U.S. Court of Appeals for the 10th District, based in Denver, represents a big win for UPHE, group reps said Wednesday. It’s the latest movement in the nearly five-year-old lawsuit against the Diesel Brothers truck and auto operation, based in Davis County and popularized by a Discovery Channel reality TV program of the same name.

“We consider it a validation of the whole effort right from the beginning,” Brian Moench, president of the UPHE board, said Wednesday, a day after the unanimous ruling from the three-judge appeals court panel. More broadly, he said the ruling represents a “legal affirmation” of the right of private citizens and environmental groups like the UPHE to seek enforcement of Clean Air Act provisions.

Still, the appeals court judges sent the matter back to U.S. District Court Judge Robert Shelby, who originally ruled in the matter, for review of the financial penalties that the Diesel Brothers and their reps face. Those fines, per the 2020 ruling appealed by the Diesel Brothers, total $765,344.

“We largely affirm the judgement of the district court,” reads the appellate ruling. However, UPHE cannot seek penalties for violations that didn’t lead to pollution emissions in the Wasatch Front, thus “the record needs further development to determine what adjustment, if any, must be made to the penalty assessment.”

The next step, said Reed Zars, attorney for UPHE, will be review in the District Court of those figures, though the Diesel Brothers still have the right to seek a rehearing of the appeals case. Cole Cannon, the Salt Lake City attorney representing the Diesel Brothers and their representatives, didn’t immediately respond to a query Wednesday seeking comment.

The “Diesel Brothers” TV show features Dave Sparks and others involved in a related diesel truck sales operation “as they build big, bad trucks, pull elaborate pranks and push the limits with new stunts,” according to Discovery Channel promotional material.

The operation drew the attention of UPHE stemming from the smoke-spewing trucks featured in the program and given away in promotions. More specifically, the group’s suit maintains that those involved in the operation bought or equipped pickups with devices designed to defeat pollution controls and they sold defeat devices to private buyers nationwide, violating the Clean Air Act. High air pollution levels are a problem along the Wasatch Front, hence the UPHE interest and concern and the January 2017 lawsuit.

The actual defendants are Diesel Power Gear, a Woods Cross retail operation; B&W Auto of Woods Cross, owned by Sparks; Sparks; and Joshua Stuart, part-owner of Diesel Power Gear.

In ruling against the Diesel Brothers representatives in March 2020, Shelby, based in Salt Lake City, said they committed about 400 violations of pollution law for installing and selling emission control defeat devices. The subsequent appeal by the Diesel Brothers — largely rebuffed in Tuesday’s ruling — questioned the standing of the UPHE to sue in the first place.

Moench said Tuesday’s court decision has significance beyond the Diesel Brothers case. It means others, not just government environmental entities, can sue to assure compliance with Clean Air Act provisions.

“It is a victory for public health protection, for preserving the rule of law and for the right of citizens to pursue punishment of any company that might have a similar business practice that disregards the rights of citizens to breathe clean air,” Moench said in a statement.

State environmental entities sometimes don’t have the resources to pursue corrective action against pollution scofflaws, he said. Before filing the Diesel Brothers suit, he said an “anonymous whistleblower,” a state employee, had advised his group that Utah mechanics were providing services to defeat auto pollution controls but that state authorities probably wouldn’t pursue action against them.

Zars called Tuesday’s decision “a shot across the bow to those who traffic in the illegal modification of emission controls in cars and trucks.”


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