A federal judge has signed off on Milwaukee-based Harley-Davidson’s settlement with the EPA over the sale of engine tuners that could allow motorcycles to emit higher levels of air pollutants.
Harley originally reached the settlement in 2016, agreeing to pay a $12 million civil penalty and to spend $3 million to mitigate air pollution with a project that would replace conventional woodstoves with cleaner-burning versions.
However, the U.S. Department of Justice sought to drop the $3 million project from the settlement in 2017 after then Attorney General Jeff Sessions implemented a policy barring DOJ from settlements that include paying money to community organizations or other third-party groups.
Harley would have made the $3 million payment to the American Lung Association of the Northeast.
Ten states, the District of Columbia, the Puget Sound Clean Air Agency, Sierra Club, Natural Resources Defense Counsel and Conservation Law Foundation all filed briefs by early 2018 arguing against the revised settlement, contending the project would have mitigated the same kind of harm caused by the tuners.
The DOJ argued that the project would not have qualified under limited exceptions to the policy because the roughly 340,000 tuners Harley sold would have caused increased emissions throughout the country, not just in the concentrated area where the American Lung Association of the Northeast works.
The DOJ also said it attempted to negotiate a new mitigation project but couldn’t reach an agreement with Harley. As a result, the government moved the settlement forward without the project.
“The adoption of the Third-Party Payment Policy clearly put the United States at a bargaining disadvantage when it sought to renegotiate the mitigation project, but the Court cannot find that this renders the consent decree procedurally unfair given that the United States determined that the policy applied to the decree,” U.S. District Judge Emmet Sullivan wrote in an opinion this week.
