The U.S. Court of Appeals for the Ninth Circuit ruled that the Clean Air Act does not prevent two counties from enforcing their rules prohibiting tampering with emission control standards of “post-sale vehicles.” The ruling revives the counties’ claims against Volkswagen.

Volkswagen admitted to installing a “cheat” device on certain types of its vehicles, while promoting them as “clean diesel” alternatives to hybrid and electric vehicles. The defeat device enables the vehicles to detect the special parameters of an emissions drive cycle, which prompts the vehicle’s computer to turn on emissions controls, thereby making the vehicle fully compliant with Environmental Protection Agency (EPA) rules during testing.

A district court ruling previously held the actions brought by The Environmental Protection Commission of Hillsboro County, Florida, and Salt Lake County were preempted by the Clean Air Act. However, while Volkswagen settled the EPA’s criminal and civil actions for more than $20 billion it failed to obtain a release of liability from state and local governments.

The Ninth Circuit Court determined that Congress did not intend for the Clean Air Act to ignore actions of a manufacturer to intentionally tamper with vehicles after they were sold. It noted that Congress “apparently did not contemplate that a manufacturer would intentionally tamper with the emission control systems of its vehicles after sale in order to… deceive regulators,” calling Volkswagen’s conduct “unexpected and aberrant.”

“We are very pleased with the Ninth Circuit’s ruling and believe strongly that the citizens of Hillsborough County have a right to collect fines from VW for allowing their products to willfully pollute the air quality of the county, unbeknownst to the vehicle operators,” said Dee Miles, who is head of the firm’s Consumer Fraud Section. “Preventing harmful emissions from automobiles was the very purpose of the county ordinance and VW deliberately violated the letter of the law. We now look forward to our day in court.”

Settlement agreements in 2016 and 2017 resolved claims between VW and owners of about half-a-million diesel-powered model-year 2009-2015 VW and Audi vehicles with 2.0-liter diesel engines and provided owners and lessees of Volkswagen, Audi and Porsche 3.0-liter diesel vehicles substantial cash compensation in addition to buybacks, trade-ins, government-approved emissions modifications or compliant repairs, depending on the generation of vehicle.

In August 2019, a proposed settlement estimated at more than $95 million, was reached to resolve claims between VW and owners/lessees of certain gasoline-powered VW, Audi, Porsche and Bentley branded vehicles.

In addition to Miles, Beasley Allen lawyers Clay Barnett, Leslie Pescia and Tyner Helms were involved in this litigation, as well as lawyer Archie Grubb.

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