By Susan Lasser, J.D.
The makers of Volkswagen, Audi, and Porsche vehicles were hit today by a civil complaint filed by the Department of Justice (DOJ), on behalf of the Environmental Protection Agency (EPA). According to the complaint, nearly 600,000 diesel engine vehicles had illegal defeat devices installed that impair the emission control systems in those vehicles and cause emissions to exceed EPA’s standards, resulting in harmful air pollution. The complaint further alleges that Volkswagen AG, Audi AG, Volkswagen Group of America Inc., Volkswagen Group of America Chattanooga Operations LLC, Porsche AG and Porsche Cars North America Inc. (collectively referred to as Volkswagen) violated the Clean Air Act (the Act) by selling, introducing into commerce, or importing into the United States motor vehicles that are designed differently from what Volkswagen described in applications for certification to EPA and the California Air Resources Board (CARB) (U.S. v. Volkswagen AG, January 4, 2015).
Complaint particulars. Reiterating EPA’s Notices of Violation (NOV), issued on September 18, 2015, for 2.0 liter engines and November 2, 2015 for certain 3.0 liter engines (see Products Liability Law analyses, September 18, 2015, and November 2, 2015), the complaint alleges that the defeat devices cause emissions to exceed EPA’s standards during normal driving conditions. Under the Clean Air Act, vehicle manufacturers are required to certify to EPA that their products will meet applicable federal emission standards to control air pollution. Motor vehicles equipped with illegal defeat devices cannot be certified, according to a DOJ press release.
The complaint asserts that Volkswagen equipped certain 2.0 liter vehicles with software that detects when the car is being tested for compliance with EPA emissions standards and turns on full emissions controls only during that testing process. During normal driving situations the effectiveness of the emissions control devices is greatly reduced. As a result, cars that meet emissions standards in the laboratory and at the test site do not meet those standards during normal on-road driving because they emit oxides of nitrogen (NOx) at levels up to 40 times the EPA compliance level. In total, the complaint covers approximately 499,000 2.0 liter diesel vehicles sold in the United States since the 2009 model year.
Affected 2.0 liter diesel models and model years include:
- Jetta (2009-2015)
- Jetta Sportwagen (2009-2014)
- Beetle (2013-2015)
- Beetle Convertible (2013-2015)
- Audi A3 (2010-2015)
- Golf (2010-2015)
- Golf Sportwagen (2015)
- Passat (2012-2015)
The complaint additionally alleges that Volkswagen equipped certain 3.0 liter vehicles with the software which senses when the vehicle is undergoing federal emissions testing. When the vehicle senses the test procedure, it operates in a “temperature conditioning” mode and meets emissions standards. However, at all other times, including during normal vehicle operation, the vehicles operate in a “normal mode” which permits NOx emissions of up to nine times the federal standard. In total, the complaint covers about 85,000 3.0 liter diesel vehicles sold in the United States since the 2009 model year.
Affected 3.0 liter diesel models and model years include:
- Volkswagen Touareg (2009-2016)
- Porsche Cayenne (2013-2016)
- Audi A6 Quattro (2014-2016)
- Audi A7 Quattro (2014-2016)
- Audi A8 (2014 – 2016)
- Audi A8L (2014-2016)
- Audi Q5 (2014-2016)
- Audi Q7 (2009-2015)
The 4 claims in the government’s complaint are for violations of Section 203(a)(1): the Sale, Offer for Sale, Introduction or Delivery for Introduction into Commerce, or Import of New Motor Vehicles Not Covered by Certificates of Conformity (COCs); Section 203(a)(3)(B): the Manufacture, Sale, Offer for Sale, or Installation of Defeat Device; Section 203(a)(3)(A): Tampering; and Section 203(a)(2): Reporting Violations.
Nitrogen oxide pollution. NOx pollution contributes to harmful ground-level ozone and fine particulate matter, and these pollutants are linked to asthma and other serious respiratory illnesses. Exposure to ozone and particulate matter is associated with premature death due to respiratory-related or cardiovascular-related effects. Further, the elderly, children, and people with pre-existing respiratory disease are particularly at risk of health effects from exposure to these pollutants. The DOJ press release states that recent studies have indicated that the direct health effects of NOx are worse than previously understood, including respiratory problems, damage to lung tissue and premature death.
Relief sought. The complaint seeks injunctive relief and the assessment of civil penalties. However, the press release noted that a civil complaint does not preclude the government from seeking other legal remedies. The United States will seek to transfer its case and fully participate in the pretrial proceedings currently ongoing in the related multi-district litigation in the Northern District of California. Moreover, the federal investigation is proceeding in close coordination with CARB. EPA and CARB are in active discussions with Volkswagen about potential remedies and recalls to address the noncompliance.
Civil penalties are sought for each violation. These include the following amounts: $32,500 per 2.0L subject vehicle and 3.0L subject vehicle for each violation occurring before January 13, 2009, and up to $37,500 per 2.0L subject vehicle and 3.0L subject vehicle for each violation occurring on or after January 13, 2009 for violations of Section 203(a)(1) of the Act; and up to $2,750 per “defeat device” per 2.0L subject vehicle and 3.0L subject vehicle for each violation occurring before January 13, 2009, and up to $3,750 per “defeat device” per 2.0L subject vehicle and 3.0L subject vehicle for each violation occurring on or after January 13, 2009 for violations of Section 203(a)(3)(B) of the Act.
The case is No. 2:16-cv-10006-LJM-MJH.
Attorneys: Bethany Engel, U.S. Department of Justice for United States of America.
Companies: Volkswagen AG, Audi AG, Volkswagen Group of America Inc., Volkswagen Group of America Chattanooga Operations LLC, Porsche AG and Porsche Cars North America Inc.
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