SCR versus EGR: the ‘debate’ escalates
By: Oliver Dixon, Friday, June 12, 2009, AutomotiveWorld.com
The transition from EPA 07 to EPA 10 has been developing into an increasingly acrimonious affair, with claim and counterclaim being bandied about between the opposing sides. In one corner is Navistar, which, as reported previously by AutomotiveWorld.com (US: Heavy truck sector still debates SCR versus EGR, 18 May 2009), is pursuing an EGR-alone solution to EPA 10, and is using emissions credits banked from previous sales of environmentally-advanced light duty engines in order to bridge the development gap between the 1 January 2010 and the market readiness of its 0.2 NOx solution. In the other corner stands everyone else; Daimler, Volvo, Paccar and Cummins have all embraced SCR technology, and the battle lines are now clear for all to see. Less visible – until recently – has been the legal maneuvering that has been going on in the background.
Last month, Navistar asked for a Judicial Review (a Petition for Review) before the US Court of Appeals for the District of Colombia Circuit, asking the Court to review the EPA's "Certification requirements for heavy-duty diesel engines using Selective Catalytic Reduction (SCR) technologies", in light of rules promulgated by the EPA in 2001.
Navistar’s action seems to be based upon the following thesis. In 2001, SCR was an untried and untested technology insofar as road-going vehicles were concerned, and the EPA's 2001 regulations expressed this, along with its apparent lack of confidence in SCR as a route to compliance with the regulations promulgated that same year. In 2009, the EPA issued something it calls ‘Guidance’ that appears to take into account the current knowledge and experience of SCR in, amongst others, Europe and Japan. Navistar's appeal of the EPA's new Guidance is based on its contention that the Guidance is a ‘rule’ and the EPA either: ignored its own requirements for rulemaking; or acted arbitrarily and capriciously in updating its own standards.
This filing was, not unexpectedly, met with some derision by the competing truck OEMs, who, with the rather strange exception of Paccar, have now joined forces and are petitioning to stand foursquare behind the EPA via a Motion for Leave to Participate as Amici Curiae (friends of the court) in the case. This Motion was filed on 1 June.
According to the filing, the EPA does not oppose the Amici Curiae brief, whereas Navistar does, and with some vehemence. Filed on 8 June, Navistar’s Opposition to the Motion is strong stuff; amongst the many highlights are what could be construed as an accusation of conspiracy: Navistar first accuses what it terms as the ‘SCR Manufacturers’ (the Amici Curiae) of urging the EPA to change its position regarding SCR and of operating "in secret" to "convince" the EPA to act illegally. It then accuses the SCR Manufacturers and the EPA of collusion and/or conspiracy, stating that the SCR Manufacturers had themselves created the EPA's guidance regarding the previously propounded rules, but that this creation or its use is somehow illegal. In effect, Navistar appears to be accusing the SCR Manufacturers of subverting the EPA and the US government from its mission to protect the world's air quality. Because conspiracy is defined as a meeting of the minds of two or more persons to engage in illegal acts, and because the acts of any of the conspirators are imputed to the others, the EPA and the SCR Manufacturers are all seen as shipmates in the same boat.
This moves the game into a whole new arena. It would be premature to second-guess the mind of the Court here, but suggesting that a conspiracy exists at the heart of one of the largest truck markets on earth could be interpreted as a very significant further escalation of the SCR versus EGR debate.
The opinions expressed here are those of the author and do not necessarily reflect the positions of Automotive World Ltd.
Published on Friday, June 12, 2009
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