Prop 65 Diesel Litigation

Diesel Trial Ends in Defense Judgment

On November 18, 2001 Los Angeles Superior Court Judge Stephen Czuleger notched the latest development in a long-running battle over exposures to diesel exhaust from off-road equipment. The judgment entered, after a court trial in Environmental World Watch v. Cummins Engine, found that the prior settlement between the defendants and Mateel Environmental Justice Foundation barred EWW's action under the doctrine of res judicata.

The case had previously been dismissed on res judicata grounds, and reversed on appeal, with the Court of Appeal holding that the Mateel settlement had focused on workplace exposures, and the EWW case was directed to environmental exposures. Testimony at trial included that of Bill Verick, Mateel's lawyer, regarding the intent of the parties in the first settlement. While the parties had litigated the issue whether diesel exhaust exposures required a warning under the Prop 65 exposure assessment defense, the court's judgment did not address that substantive issue.

Diesel Exhaust Case Against Supermarkets Settles

On April 28, 1999,  the Attorney General, the Coalition for Clean Air, and the Natural Resources Defense Council filed suit in Los Angeles and San Bernardino Counties against several major grocery chains, alleging that their diesel fleets violated Prop 65's exposure/warning requirement. The environmentalists' intent was openly to force the fleets away from diesel and toward alternative fuels. As is explained in a recent NRDC report entitled Exhausted by Diesel: How America's Dependence On Diesel Engines Threatens Our Health:

Because government agencies have failed to protect the public from diesel exhaust, NRDC and the Coalition intend to take their campaign to the courts, initiating a series of lawsuits under California's toxics initiative, Proposition 65. The public interest groups hope by this report and their litigation to push a change nationwide toward cleaner and safer trucks, buses and other vehicles. Only by forcing companies to reassess their use of diesel powered vehicles can we break our unhealthy dependence on diesel and protect the health of the public.

In mid-April 2000, the Attorney General, private enforcers, and defendants (Vons, Ralphs, and Lucky Stores) entered into a consent judgment resolving the claims regarding exposure to diesel exhaust at the groceries' distribution centers.  Highlights of the consent judgment include:

• the defendants will provide warnings at all entrances to the distribution centers, and on all buildings that face the street
• the defendants will mail warnings to residents near the distribution centers following a risk assessment performed by the AG's office
• the defendants must limit idling of diesel trucks at their facilities to no more than three minutes.
• the defendants have committed to implementing alternative fuel vehicles as a replacement for diesel vehicles, contingent upon government funding.
• the defendants will pay $895,000 in attorney's fees and costs to the private plaintiffs.

NRDC's press release stated:

"We commend the grocery chains for taking this significant step to protect the health of our communities by adding clean fuel trucks to their fleets," said NRDC senior attorney Gail Ruderman Feuer. "It's time for companies across California to get off their diesel diet and switch to clean and safe alternative fuels."

"Diesel exhaust poses a serious public health threat to our communities," said Todd Campbell, policy associate at the Coalition for Clean Air. "As we continue to address the concerns raised by dozens of California neighborhoods, we hope that responsible businesses throughout California will follow the example set by these companies and take substantive steps to address this threat."

According the Attorney General's press release:

"This groundbreaking settlement brings environmental justice to thousands of community residents who are being exposed to harmful exhausts from heavy-duty diesel trucks traveling back and forth from the grocery distribution centers," Lockyer said. "For the first time, facilities that generate large amounts of traffic are taking responsibility for the harmful emissions they cause in a particular community. And, to their credit, the grocery chains will be issuing bilingual Proposition 65 warnings and testing alternative fuel trucks to help reduce local exposure to cancer-causing emissions."

Old diesel litigation news.

This page last updated January 14, 2002.