The Trump administration has erased an Obama-era requirement that Harley-Davidson Motor Co. spend $3 million on a pollution control project as part of its penalty for cheating on air emissions.
Under the new settlement, which replaces one drawn up by the Obama administration last August, Harley-Davidson won't be required to fund an American Lung Association project to build cleaner-burning wood stoves. The pollution mitigation program had drawn fire from conservative groups and congressional Republicans.
Harley-Davidson agreed to stop manufacturing the devices for cheating on emissions tests and pay $12 million in civil penalties, the same fine it had agreed to last year.
The reversal marks the first time President Trump's Department of Justice has rejected part of an Obama-era emissions settlement.
Environmental advocates lambasted the about-face, with John Walke of the Natural Resources Defense Council saying it heralds "the start of the Trump EPA's retreat from a long-standing enforcement practice to offset illegal pollution in American communities."
"EPA is taking the irresponsible step of allowing polluted air to escape remedy," he said. "Reopening this enforcement settlement snatches away health protections that Americans were promised."
The government had accused Harley-Davidson of manufacturing and selling almost 340,000 devices that caused its motorcycles to spew nitrogen oxides and hydrocarbons beyond federal air pollution limits and of selling more than 12,000 noncompliant motorcycles.
U.S. EPA Administrator Scott Pruitt has vowed to aggressively pursue vehicle emissions violations, like those of Volkswagen AG and Fiat Chrysler Automobiles NV, but the Trump administration is unlikely to continue a decades-old practice to funnel some money from emissions settlements to environmental projects. Among the programs conservatives have criticized is the requirement that Volkswagen spend $2 billion on promoting zero-emission vehicles.
House Republicans have characterized the payments as "slush funds" and last year passed a bill banning them. The House Judiciary Committee earlier this year approved a similar bill. Attorney General Jeff Sessions barred settlement funds from going to nongovernmental third parties in a June memo (Greenwire, June 7).
In a legal filing, DOJ said it dropped the wood stove project because "questions exist" about whether it is consistent with the new Sessions policy.
The department also acknowledged the fierce criticism of the program from conservative groups and lawmakers.
Former Rep. Jason Chaffetz (R-Utah) had asked the Government Accountability Office to look into the project. Harley-Davidson asked the government in February to delay moving to enter a final consent decree until after GAO finished its study, according to the legal filing.
Political appointees at EPA agreed to stall the settlement, as first reported by E&E News in April (Greenwire, April 18).
The Trump administration and Harley-Davidson continued negotiating to find a "substitute mitigation project," according to the filing, but did not "reach timely agreement on a suitable alternative."
"The United States has decided on balance that proceeding now with the substitute consent decree is in the public interest," the filing says.
A judge must still approve the new consent decree. DOJ declined to comment further.
"This is just greasing it for the corporate people these people feed every time they're in office," said Eric Schaeffer, who led EPA's Office of Civil Enforcement from 1997 to 2002 and now directs the Environmental Integrity Project.
Schaeffer said he could not recall a case when a new administration had changed a previous settlement to make it easier on a defendant. It is common for a new administration to review past cases and make policy changes, however.
Whatever agreement the government reaches with Fiat Chrysler could be a barometer, he said. DOJ has accused the automaker of installing defeat devices on 104,000 diesel vehicles that led to increased emissions of air pollutants.
"The template is already set," Schaeffer said. "If [Sessions] is not going to collect a bunch of money for clean-vehicle projects, he's going to have to get a whole lot more penalties. You can't come out with half the loaf."
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