Photo supplied, Discovery Channel
David “Heavy D” Sparks and “Diesel Dave” Kiley are pictured in an undated Discovery Channel publicity photo.
The lawyer representing the Diesel Brothers entity, battling an ongoing civil air pollution lawsuit, says the fines his client faces will be cut significantly when the case gets reviewed by the U.S. District Court judge overseeing the matter.
“I think people are tired of overreaching lawsuits and this was one of them,” said Cole Cannon, the Salt Lake City lawyer representing David Sparks, the Diesel Brothers truck and auto operation — called Diesel Power Gear — and the other defendants in the matter.
Per a 2020 District Court ruling, Sparks — who has a lead role in the Diesel Brothers reality TV program — and the others faced $765,344 in fines between them stemming from violations of federal and state clean air standards. However, a decision last week from the U.S. Court of Appeals for the 10th District, while largely affirming that ruling, sent the case back to District Court Judge Robert Shelby to potentially adjust a portion of the fines.
Cannon maintains the appellate court ruling could lead to a dramatic reduction of the $765,344 figure to as low as around $105,000, maybe half of that.
The fines are based in part on sales by the defendants of “defeat parts,” car parts meant to bypass pollution controls, and tampering of vehicles’ emission-control systems which make them pollute more. Cannon, though, says any fines should pertain to parts sold in Utah and autos used in the state, which represent only a fraction of the parts and cars used in figuring the larger dollar figure. Recalculating based on the Utah-only provision — and on parts actually sold, not just marketed — will help slash the fine, he maintains.
The head of the group that sued the Diesel Brothers entities, which are based in Davis County, thinks Cannon is being overly optimistic. “I think that’s extremely wishful thinking on his part. Another way to put it is that’s his spin,” said Brian Moench president of the Utah Physicians for a Healthy Environment board.
Moench had painted the Dec. 28, 2021, appellate court ruling as a victory for the UPHE. The decision, he said, represented a “legal affirmation” of the right of private citizens and environmental groups, like the UPHE, to seek enforcement of Clean Air Act provisions, the federal measures at the center of the violations committed by the defendants.
The Diesel Brothers reps had appealed the 2020 District Court ruling, questioning UPHE’s right to sue under CAA guidelines.
The Diesel Brothers operation initially drew the attention of UPHE stemming from the smoke-spewing trucks featured in the TV program and given away in promotions. More specifically, the group’s 2017 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 CAA. High air pollution levels are a problem along the Wasatch Front, hence the UPHE interest and concern and the January 2017 lawsuit.
In saying the fines are to be slashed, Cannon also lamented what he said is the poor treatment his clients have received in connection with the case.
“For five years, the Diesel Brothers have been drug through the mud over, factually, a very small case,” he said. He charged that the case, from the perspective of the UPHE, always seemed to be about collecting attorneys fees.
In addition to the fines, the Diesel Brothers defendants are to pay $982,602 to the environmental group to help it cover the costs of litigating the matter. Cannon maintains that dollar amount, too, will be scaled back.
Before the 2020 ruling, the sides had tried to mediate a solution to the dispute outside the courtroom. The Diesel Brothers had offered to fix the faulty auto emissions systems of “potentially hundreds of low-income Utah families’” cars as part of one settlement plan, Cannon said, but the UPHE rebuffed it.
Moench said the sides had multiple mediation sessions. The offers coming from the Diesel Brothers, though, weren’t fair, in part because they didn’t provide compensation for the UPHE legal costs in taking the matter to court, he said.
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