On July 20, 2017, the Department of Justice (“DOJ”) filed a substitute consent decree in the Environmental Protection Agency’s Clean Air Act enforcement action against Harley-Davidson, Inc. removing a requirement that Harley-Davidson fund a so-called Emissions Mitigation Project (“Project”).[1]  About three weeks earlier, on June 1, 2017, Cause of Action Institute (“CoA Institute”) submitted a Freedom of Information Act request to EPA requesting all documents and records related to the selection of the Project, and the American Lung Association  as the Project’s implementing entity.[2]  In conjunction with that request, we also sent a letter to EPA Administrator Pruitt asking him to reconsider the unlawful mitigation Project, because it lacked a sufficient nexus to the underlying violation.[3]  As we stated, the Project appeared to be a continuation of Obama-era practices that used consent decrees to funnel funds to favored non-governmental organizations.[4]

Fortunately, Attorney General Jeff Sessions issued a policy directing U.S. attorneys to end this practice on June 5, 2017.[5]  DOJ attorneys cite Sessions’ memorandum as a reason for rejecting the Emissions Mitigation Project and filing the new consent decree, because the original Harley-Davidson agreement failed to connect the alleged violation—excess gas and nitrogen oxides emissions nationally—to the Project—replacing wood-burning appliances in the northeast.[6]

CoA Institute applauds DOJ’s revised consent decree, which is consistent with our assessment that the Emissions Mitigation Project violates the “sufficient nexus” requirement necessary for ensuring that agencies do not abuse their enforcement power at the expense of taxpayers.

Travis Millsaps is Counsel at Cause of Action Institute

[1] Consent Decree, United States v. Harley-Davidson, Inc., No. 16-cv-01687 (D.D.C. filed July 20, 2017), ECF No. 6.

[2] FOIA Request EPA-HQ-2017-007905, Envtl. Prot. Agency (June 1, 2017), available at http://bit.ly/2tk7YY4.

[3] Letter from Travis G. Millsaps, Counsel, Cause of Action Inst., to Hon. Scott Pruitt, Adm’r, Envtl. Prot. Agency (June 1, 2017), available at http://bit.ly/2uesJGh.

[4] Blog Post, Cause of Action Inst., Cause of Action Institute Applauds AG Sessions’ Termination of Settlement Fund Payouts to Third-Party Groups (June 7, 2017), https://causeofaction.org/cause-action-institute-applauds-ag-sessions-termination-settlement-fund-payouts-third-party-groups/.

[5] Memorandum from Jeff Sessions, Attorney Gen., U.S. Dep’t of Justice, to U.S. Attorneys et al. (June 5, 2017), available at https://www.justice.gov/opa/press-release/file/971826/download.

[6] Consent Decree, supra note 1, at 2–3; Memorandum from Jeff Sessions, supra note 5; see also Letter from Travis Millsaps to Scott Pruitt, supra note 3, at 2–3.