The federal government’s take on the Clean Air Act (CAA) regarding preemption will likely impact whether the U.S. Supreme Court grants a certiorari petition from Volkswagen Group of America Inc. and Audi of America LLC. Both automakers are challenging a June 2020 decision by the Ninth U.S. Circuit Court of Appeals to revive lawsuits from Salt Lake County, Utah, and Hillsborough County, Florida, related to the 2015 “clean diesel” emissions-cheating scandal.
The U.S. Supreme Court had asked for the federal government’s input on whether the CAA bars the counties from pursuing claims that Volkswagen owes them additional penalties for defying local anti-tampering laws. In an amicus brief filed late September, Acting U.S. Solicitor General Brian H. Fletcher said that the CAA preempts state and local laws from enforcing “any standard relating to the control of emissions from new motor vehicles.” However, it doesn’t prevent states and local governments from imposing civil penalties for post-sale changes that reduce the effectiveness of emission-control systems in vehicles already on the market.
The lawsuit stems from the Environmental Protection Agency (EPA)’s investigation into Volkswagen’s 2015 admission that it rigged more than a half-million of its diesel vehicles sold in the U.S. with so-called “defeat devices” — software designed to cheat on federal emissions tests. This has been referred to as the “Volkswagen Emissions Scandal” or “Dieselgate” in many situations. In 2016, Volkswagen entered into a multi-billion-dollar settlement with federal and state regulators and drivers of nearly 600,000 U.S. diesel vehicles in part to resolve alleged CAA violations. However, those agreements didn’t stop some states and local governments from filing separate lawsuits against the German automaker.
The June 2020 decision by the Ninth Circuit gave Salt Lake County and Hillsborough counties authority alongside the EPA to regulate the updates car manufacturers make to emissions systems in vehicles after they are sold. The counties seek daily penalties of $5,000 per rigged diesel vehicle for the local pollution they caused. Damages could soar to upwards of $11.2 billion.
In August 2020, Volkswagen asked the court to reconsider its ruling or to have the full appeals court take up the case. The company argued it shouldn’t have to pay those fines because the court decision misinterpreted the CAA, which gives sole regulatory authority over manufacturer changes to car emissions to the EPA and California.
Beasley Allen’s consumer law attorney Dee Miles, the lead trial counsel in the case for Hillsborough County, says he is confident that Volkswagen’s petition will be denied now that the federal government has weighed in on the CAA preemption issue.
“The VW ‘cheat devices’ were egregious corporate misconduct that caused harm to the Tampa area and is a good example of why local governments should have their own particular laws and ordinances to protect their local environment,” he says. “We don’t anticipate certiorari being granted in these cases, and the solicitor general for the United States has now agreed with our position that certiorari is due to be denied in this case. We welcome the support and expect our high court will act accordingly. The Hillsborough County EPC is anxious to get to trial to present our case to a jury.”
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