Feds Fed Up with VW; Lawsuit Alleges Clean Air Act Violations

A previous post discussed the Volkswagen emissions scandal in the context of other greenwashing cases and noted that it may exemplify a new trend of high-tech greenwashing.

Last year, Volkswagen admitted that it had intentionally programmed a number of its diesel vehicles to activate emissions controls only during testing.  The vehicles’ software allowed the nitrogen oxide (NOx) output to satisfy U.S. emissions standards during testing while producing much higher emissions during actual driving conditions.

Recently, the U.S. Department of Justice (DOJ) filed a civil complaint against Volkswagen seeking injunctive relief and monetary penalties for the German automaker’s actions.  The complaint also names Audi and Porsche as defendants.

Filed in U.S. District Court for the Eastern District of Michigan at the request of the U.S. Environmental Protection Agency (EPA), the complaint alleges that the deceptions and emissions violate certain provisions of the Clean Air Act (CAA) pertaining to NOx emissions and testing procedures.

Those provisions, and related regulations, require car manufacturers to obtain certification to sell cars in the United States.  As part of the certification process, the manufacturers need to disclose and justify any auxiliary emissions control device (AECD) and explain why it is not a “defeat device” that reduces emission controls under normal operating conditions.

The DOJ alleges that in the testing of a number of cars (the “2.0L Subject Vehicles” and the “3.0L Subject Vehicles”) the defendants failed to disclose the software (the “electronic control module” or “ECM”) which activated the emissions controls during testing, and that the ECM is an AECD.

Paragraph 69 of the complaint describes the software for one set of vehicles and what it does during EPA emissions tests:

During FTP emission testing, the 2.0L Subject Vehicles’ ECM run software logic and/or calibrations that produce compliant emission results under an ECM calibration that VW referred to as the “dyno calibration” (referring to the equipment used in emissions testing, called a dynamometer).  At all other times during normal vehicle operation, the 2.0L Subject Vehicles’ ECM software run a separate “road calibration” that reduces the effectiveness of the emission control system.  In other words, the 2.0L Subject Vehicles ECM software tracks the parameters of the FTP and causes emission control systems to underperform (or fail to perform) when the software determines that the vehicle is not undergoing the FTP.

The complaint alleges that Volkswagen knowingly concealed facts  that would have revealed the existence of the methods performed by the software.

The claims include selling vehicles that don’t comply with CAA emissions requirements, tampering with the vehicles during testing, and certain EPA reporting violations.

The DOJ is seeking an injunction that would prohibit the defendants from selling any vehicles in the United States that fail to comply with the EPA’s emissions certification requirements.  In addition, the feds have asked the court to prohibit the defendants from selling vehicles equipped with any non-compliant AECD or defeat device.

The complaint also requests that civil penalties be imposed in the form of fines of up to $37,500 per vehicle for each violation of the CAA.

Based on an EPA official quoted in this article published by Biodiesel Magazine, it sounds like the feds were not getting the remedial steps they wanted out of Volkswagen (“So far, recall discussions with the company have not produced an acceptable way forward.”).  Seems this lawsuit was filed to put more pressure on the automakers.

Eric Lane Avatar

Eric Lane

Eric Lane, the founder and principal of Green Patent Law, is an intellectual property lawyer and registered U.S. patent attorney in New York and is a member of the bar in New York and California. Eric has more than two decades of experience working with wind, solar PV, CSP, biofuels, and geothermal, energy storage technologies, carbon capture and sequestration, medical devices, data communications, mechanical, chemical, internet and software.