SALT LAKE CITY — A lawyer defending the Diesel Brothers in a Clean Air Act enforcement action says attorneys’ fees desired by an environmental group make a farce of the central dispute over illegally modified pickup trucks.
“This is the problem with the environmental movement,” Cole Cannon said. “A million dollars in attorneys’ fees over 23 trucks.”
Utah Physicians for a Healthy Environment won a ruling in U.S. District Court last year that said the truck enthusiasts and related corporate entities are liable for civil penalties because they sold pickup trucks illegally modified to defeat emission controls.
The two sides recently presented to Judge Robert Shelby recommendations on monetary penalties allowed under federal law for violations of the act.
Cannon said the defendants should be liable for $581,000 at most.
Reed Zars, the lead attorney representing the doctors group, said in court documents that three Diesel Brothers and two companies collectively should be required to pay about $1.8 million. However, he said the violations by law could demand $4.4 million in penalties.
Penalties are paid to the U.S. Treasury; the doctors group would get none of those funds.
But Cannon complained in an interview last week about the amount of attorneys’ fees the doctors’ group may seek on top of the penalties. That sum is perhaps more than $1 million, Zars disclosed under questioning during the November bench trial in the case.
“It’s a gotcha — attorneys’ fees to get rich,” Cannon charged. “This will actually hurt the Clean Air Act, just to get attorneys’ fees.”
Efforts to contact Zars for response to Cannon’s comments were not immediately successful.
Cannon said the Diesel Brothers probably will end up spending $200,000 in legal fees to defend against the suit. They have already paid $150,000 of that, he said.
Shelby will decide on attorneys’ fees to be paid to Zars’ team after he rules on the civil penalties the defendants must pay.
“My argument is that my clients have always been willing to mitigate air quality problems in Utah by paying the cost to repair trucks in Utah, even if those trucks are not their own,” Cannon said.
The Clean Air Act caps that mitigation amount at $100,000 in a civil enforcement action.
Cannon said he has a small hope that he and Zars may be able to reach a case settlement before Shelby rules.
“But the fact that this case has not been resolved makes it appear to be more about attorneys’ fees than it is about the environment,” Cannon said.
He said $1 million in attorneys’ fees works out to about $40,000 per truck (21 to 25 illegally modified pickups, according to various accountings so far during the case).
“That amount of money is more than the average value of these trucks in total (and) 20 times more than any potential profit the Diesel Brothers received as a result of the tampered vehicles,” he said.
Cannon added that at an estimated cost of $5,500 to fix each modified truck, “even rounding up to 25 trucks, that’s $137,500. So the UPHE attorneys are seeking eight times more in attorneys’ fees that the actual costs to fix those vehicles.”
The doctors’ group has taken a hard line on the civil penalties because emissions control violations by the Diesel Brothers and like-minded businesses and vehicle owners must be deterred from polluting.
In its recommendation to Shelby, the doctors’ group said substantial penalties are needed “to deter both the defendants and their many followers from violating the Clean Air Act (and) to punish defendants’ actions which involved intentionally tampering with vehicle emission control parts, knowingly marketing the sale of defeat devices, and publicizing their disregard for the Clean Air Act through book sales, videos on the internet, and a reality television series on the Discovery Channel.”
The Diesel Brothers reality show is in its sixth season. David Sparks, who owns the defendant companies B&W Auto/Sparks Motors and Diesel Power Gear, is known as “Heavy D” on the show.
Two others on the show, Joshua Stuart, “Redbeard,” and Keaton Hoskins, “The Muscle,” also are defendants in the suit.
The doctors’ group asserts that the tampered trucks contribute heavily to ozone and fine particulate pollution that helps make the Wasatch Front’s air quality among the worst in the nation.