We have reported extensively on the blatant cheating by Volkswagen, Audi and Porsche relating to the installation of illegal “defeat devices” to cheat on vehicles’ emissions tests. Two counties in Florida and Utah have asked a California federal court to keep alive their claims against the automakers in multidistrict litigation. The claims are not barred by the Clean Air Act or by settlements Volkswagen previously reached.
The Environmental Protection Commission of Hillsborough County, Florida, and Salt Lake County, Utah, asked the court to reject the automakers’ bid to have their suits dismissed. The past settlements or fines paid by Volkswagen should not be a viable reason to deny the counties’ claims.
Volkswagen should be fined as much as $5,000 a day for its eight years of misconduct, and is now paying less than half that, the counties claimed. Salt Lake County’s lawyer Colin King of Dewsnup King Olsen Worel Havas Mortensen told Law360:
These defendants have paid nothing to these counties; the fact the defendants have settled with others does not justify them escaping accountability under our laws they intentionally and fraudulently violated and for the harm they caused to the counties and our county residents.
The counties correctly take the position that Volkswagen’s past settlements can be taken into account if the trier of fact and courts are ultimately tasked with determining an appropriate amount to pay the counties, but the mere existence of those past settlements should not bar the counties’ claims. The counties also contended that their claims are not preempted by the Clean Air Act (CAA), as Volkswagen had claimed. The CAA essentially created a partnership between the state and federal authorities when enforcing emissions standards, and the U.S. Environmental Protection Agency (EPA) has “encouraged” states to enforce their own laws against tampering with emission control systems, the counties argued.
By cutting the EPA’s budget, the Trump administration has required the states to take a large role in enforcing the Clean Air Act. As subdivisions of Florida and Utah, the counties therefore have a responsibility to regulate air pollution. By tampering with its vehicles’ emissions controls for nearly a decade, VW made it more difficult for the counties to attain baseline air quality standards, cheated the effectiveness of their inspection and maintenance programs and threatened the health of their citizens.
Volkswagen representative Jeannine Ginivan said in a statement that the court previously rejected claims by the state of Wyoming for being preempted by federal law, and should consequently reject these local claims as well. But Hillsborough County, represented by Archie Grubb, a lawyer with Beasley Allen, says the difference is that that the vehicles in this instance were subject to post-sale emissions control changes. Archie stated:
The post-sale modification issue was not addressed in the Wyoming order, and we believe these modifications to used Volkswagen vehicles remove Hillsborough’s claims from the umbrella of Clean Air Act preemption.
The counties also countered Volkswagen’s contention that their regulations don’t apply to its conduct. It should be noted that a Utah regulation bars anyone from tampering with emission control devices, and a Hillsborough County regulation bars the installation of defeat devices.
Hillsborough County is represented by Dee Miles and Archie Grubb from our law firm, along with Gardner Brewer Martinez-Monfort PA and the Law Office of Thomas L. Young PA. Salt Lake County is represented by the Office of the Salt Lake County District Attorney and Dewsnup King Olsen Worel Havas Mortensen. The case is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, (case number 3:15-md-02672), in the U.S. District Court for the Northern District of California. If you need additional information on this subject, contact Archie Grubb, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Archie.Grubb@beasleyallen.com.
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