The United States Court of Appeals for the Ninth Circuit recently affirmed the right of state and local governments to sue Volkswagen over tampering with emissions devices on their vehicles after they were sold.
Beginning in 2006, Volkswagen realized that some of its diesel engine vehicles would not be able to meet clean air standards while still operating at a level that could attract customers. Therefore, they developed and installed two devices that would enable the vehicles to pass federal emission tests, even though the vehicles could not actually meet the clean air standards if they were to be driven on the street.
Customers began complaining about their vehicles, however, and Volkswagen issued a “recall” that not only repaired the problems which customers complained about but also installed devices that gave false readings showing the cars were in compliance with the Clean Air Act. Volkswagen intentionally tampered with the emission control systems of its vehicles after sale to deceive the regulators.
Harris County has had difficulty meeting federal clean air requirements, especially with its petrochemical industry. Not only have Volkswagen’s deceitful acts damaged Harris County’s ability to reach clean air attainment status but have also damaged the county’s ability to protect its citizens.
Harris County was the first governmental entity in Texas to file suit against Volkswagen after the tampering was revealed. Harris County Attorney Vince Ryan is seeking penalties against Volkswagen for the approximately 2,000 vehicles in Harris County that were tampered with after they were sold.
After being sued by many state and local governments, Volkswagen claimed that the Clean Air Act gave the federal government sole discretion to enforce laws tampering with emission control devices.
A federal trial court agreed with Volkswagen’s claim. However, the 9th Circuit disagreed, stating that even though federal law covers tampering on cars before they are sold, it does not prohibit local governments from enforcing local regulations on vehicles that were tampered with after they have been sold.
“We applaud this ruling recognizing the role local governments play in enforcing local laws to protect our residents,” stated Ryan, praising the 9th Circuit’s ruling. “This opinion reaffirms the rights of state and local authorities, such as Harris County, to enforce penalties for post-sale tampering with automobile emission control devices and to proceed against Volkswagen for its unlawful conduct,” said Richard Mithoff, a prominent Houston attorney retained by Harris County to lead a team of local lawyers in representing the county, including Benny Agosto, Russell Post, and Earnest Wotring.
Mithoff, Agosto, Post, and Wotring intend to request a trial setting as soon as practical.