The Environmental Protection Agency’s (EPA) issuance of a notice of violation last week to Volkswagen AG, Audi AG, and Volkswagen Group of America, Inc. (collectively Volkswagen) appears to have further validated EPA’s and other federal agencies’ growing reliance on independent studies to pursue alleged violators of federal law.
In our experience, such studies normally form the basis for nongovernmental organizations to bring lawsuits against our clients, but businesses should be concerned that EPA’s apparent adoption of such research could have the effect of putting the agency’s stamp of approval on such work. This could be significant in the administrative law context, where the courts already are required to grant broad deference to the finding of the agency.
Volkswagen is alleged to have violated express provisions of the federal Clean Air Act and EPA regulations by installing “defeat devices” and selling vehicles whose design was not covered by a valid certificate of conformity. Volkswagen could face civil penalties up to $18 billion as a result of these alleged violations. In addition, the EPA has stated that it expects to compel Volkswagen to recall the affected vehicles to remedy the noncompliance.
According to EPA, the automaker violated Section 203(a)(3)(B) of the Clean Air Act by installing software in approximately 500,000 vehicles equipped with its popular 2.0-liter TDI clean diesel engine to help those vehicles circumvent EPA tailpipe emission control requirements. More specifically, EPA alleges that the vehicles’ software can detect when the vehicle is undergoing pre-production EPA emissions-compliance testing under prescribed laboratory-simulated road conditions, and then activate particular operating parameters designed to produce compliant emissions results. According to the notice, however, when operated under normal road conditions, that software employs “defeat devices” that reduce the effectiveness of the emissions-control devices and result in emissions of nitrogen dioxide between 10 and 40 times higher than permitted.
This is the second time in recent months that an automaker’s onboard computer systems have come under fire as a result of independent research. Like the recent hacking controversy sparked by the discovery of serious vulnerabilities in vehicle infotainment systems by automotive security researchers, the violations here were first discovered by independent researchers. The enforcement action against Volkswagen arose after the International Council on Clean Transportation, an independent nonprofit organization, commissioned a study by West Virginia University after if noticed discrepancies in European testing data in 2014.
According to the EPA, the study found “significantly higher in-use emissions from two light duty [Volkswagen] diesel vehicles.” As a result, the EPA and California Air Resources Board launched an investigation into the increased emissions from the Volkswagen vehicles, which culminated in last week’s notice of violation.
In the current climate of increased scrutiny on automakers, EPA and National Highway Traffic Safety Administration have demonstrated a receptiveness to the findings of independent researchers that is likely to lead to an increase of such studies by advocacy groups. This development adds an additional level of complexity to regulatory compliance for automakers.
