“Certain new developments led the United States and the defendant to agree to revise the consent decree in this manner,” the announcement said. “The original consent decree would have required defendants to pay a non-governmental third-party organization to carry out the mitigation project. Questions exist as to whether this mitigation project is consistent with the new policy.”
It was the first time the Justice Department had put into place a Trump administration policy overturning Obama-era penalties intended to offer redress — such as funding an antipollution initiative.
The settlement agreement with Harley-Davidson dates from August 2016 and involves the manufacture and sale of around 340,000 illegal motorcycle tuners.
The devices generate a higher amount of air pollutants. In addition, the company had also produced and commercialized over 12,000 motorcycles without certification from the Environmental Protection Agency.
Under the agreement with the EPA, Harley-Davidson agreed to halt the selling of the engine “super tuners”, buy them back and destroy them, as well as cover a penalty for violating air pollution laws and “sell only models of these devices that are certified to meet Clean Air Act emissions standards,” a statement from the EPA said at the time.
Obama administration officials said it was a landmark enforcement action.
“Given Harley-Davidson’s prominence in the industry, this is a very significant step toward our goal of stopping the sale of illegal aftermarket defeat devices that cause harmful pollution on our roads and in our communities,” Assistant Attorney General John C. Cruden, head of the Justice Department’s Environment and Natural Resources Division, said in a statement in August 2016.
“Anyone else who manufactures, sells, or installs these types of illegal products should take heed of Harley-Davidson’s corrective actions and immediately stop violating the law.”
Harley-Davidson also agreed to pay an additional $3 million to the American Lung Association for a project to replace conventional wood stoves with cleaner-burning stoves in northeastern communities.
Thursday’s decision reverses an Obama administration practice of having banks and companies donate money to outside groups as part of settlement agreements with the federal government.
Attorney General Jeff Sessions announced the policy last month.
“When the federal government settles a case against a corporate wrongdoer, any settlement funds should go first to the victims and then to the American people — not to bankroll third-party special interest groups or the political friends of whoever is in power,” Sessions said in a statement.
But Eric Schaeffer, executive director of the Environmental Integrity Project and former director of the EPA’s Office of Civil Enforcement, said such third-party payments were justified.
“Once these companies are caught, you can’t turn the clock back to undo the damage they’ve done to public health or the environment, so getting part of the settlement to support actions to reduce that damage going forward helps to make the environment whole, which isn’t accomplished just by paying penalties or returning to compliance,” he said in an interview.
The American Lung Association said it was not informed in advance of the decision and would be forced to drop the program.
The Justice Department and Harley-Davidson declined further comment.