If it Ain't Broke: the Case Against "rolling Back" Vehicle Emissions Regulations in the United States

• Jurisdiction: United States,Federal
• Citation: Vol. 33 No. 4
• Publication year: 2019
• topic: Administrative Law,Environmental Law

If It Ain't Broke: The Case Against "Rolling Back" Vehicle Emissions Regulations in the United States

Alexandria E. Pierce

IF IT AIN'T BROKE: THE CASE AGAINST "ROLLING BACK" VEHICLE EMISSIONS REGULATIONS IN THE UNITED STATES

Introduction.............................................................................................620

A. "Fixing" a Working System Can Only Break It ....................... 620
B. 38,000 Premature Deaths and Counting.................................. 622
C. An Argument for Continued Success in the United States ........ 623

I. "A Campaign of Trickery": The VW Emissions Cheating Scandal...........................................................................................625
II. How Did We Get There? The Regulation of Vehicle Emissions in the United States and Germany............................................629

A. The Development of Agencies to Regulate Vehicle Emissions . 629
B. Statutory Structure of Vehicle Emissions Control .................... 632
C. Approval of New Motor Vehicles.............................................. 634
D. Post-approval Compliance Assurance ..................................... 635
E. Enforcement Mechanisms Available Upon Finding Emissions Violations.................................................................................. 637

III. Don't Fix It: An Argument for Continuing Successful Vehicle Emission Regulations in the United States..............................642

A. A Race to the Bottom Is Not a Competition the United States Wants to Win ....................................................................................... 642
B. Already on Top: Two Examples of Regulatory Tools That the United States Used to Prevail in the Volkswagen Emissions Scandal ..................................................................................... 645

1. Compliance Assurance Requirements in the United States Helped to Catch Volkswagen .............................................. 646
2. Enforcement Mechanisms Allowed Both the United States and Consumers to Hold Volkswagen Accountable.................... 648

Conclusion.................................................................................................650

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Introduction

A. "Fixing" a Working System Can Only Break It

U.S. environmental regulations are under attack. The Trump Administration is pushing for a more industry-driven environmental protection policy,¹ asserting that it plans to "roll-back" long-standing, effective environmental regulations to bring back more blue-collar jobs.² Industry-forward environmental policies like those favored by the current administration exist worldwide, particularly in Germany.³ Although, in theory, broad promises to bring back industrial jobs sound appealing; in practice, industry-driven environmental regulation is largely ineffective. Rather, the current U.S. environmental regulations for vehicle emissions are far more effective in both fostering clear communication with regulated industries about what is expected to better deter environmental harms as well as holding manufacturers accountable if they violate these clear expectations.⁴

The drastic difference in these regulatory approaches is best illustrated by both the United States' and Germany's responses to the Volkswagen (VW) emissions-cheating scandal.⁵ In 2015, news emerged that VW installed "defeat devices" in about eleven million light-duty diesel vehicles that they marketed as

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"eco-diesel."⁶ These devices temporarily limited the emissions of nitrous oxide and other pollutants to be within threshold emissions limits when the vehicles detected driving conditions of federal testing procedures, but then ceased to work when those vehicles detected "real-world" driving conditions.⁷ In effect, VW light-duty diesel vehicles worldwide emitted far more nitrous oxide than threshold limits allowed.⁸

The aftermath of the VW emissions-cheating scandal reveals the serious harms that result when a country is unable to enforce vehicle-emissions regulations against worldwide manufacturers like VW—companies that have harmed not only the environment, but also the public health of its citizens.⁹ Germany has been widely criticized for its lack of enforcement response to the VW crisis.¹⁰ Although it has recently fined VW for the diesel scandal, it took nearly three years and worldwide criticism before the country acted against the manufacturer.¹¹ In contrast, the United States entered consent decrees with VW and instituted recalls and buy-backs of affected vehicles from consumers far quicker.¹² Many credit the U.S. Environmental Protection Agency's (EPA) strong enforcement approach with causing VW to admit both to cheating

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emissions tests worldwide and to committing federal fraud and conspiracy.¹³ This led to the manufacturer paying nearly $26 billion,¹⁴ the largest fine an automaker has seen to date.¹⁵

B. 38,000 Premature Deaths and Counting

Worldwide, diesel vehicles are emitting far more pollutants, like nitrous dioxide (NOx), than their threshold limits allow.¹⁶ In 2014, the International Council on Clean Transportation¹⁷ (ICCT) reported that light-duty diesel vehicles emit far more NOx under real-world driving conditions than when those same vehicles are tested under federal regulatory emissions tests.¹⁸ In May 2017, a study published in Nature found that light-duty diesel vehicles in major markets, such as the United States and Europe, produce over fifty percent more NOx than official certification limits indicated.¹⁹

Selling vehicles that will emit far more NOx than legal limits allow is not only breaking the law, but also damaging the natural environment and contributing to widespread respiratory problems and even death.²⁰ NOx reacts in the atmosphere to form ozone (O₃), which creates smog²¹ and combines with

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sulfur oxides and condensation to create acid rain.²² Excess NOx emissions were attributed to approximately 38,000 premature deaths worldwide in 2015.²³ Experts have estimated that the VW "eco-diesel" vehicle emissions in Germany alone have caused a mortality impact of 1200 premature deaths since 2008.²⁴ Additionally, the economic impact for the added healthcare costs to treat the respiratory effects of excess NOx emissions throughout the European Union (EU) is estimated to be nearly €1.9 billion.²⁵ The same study determined that if VW had reduced the emissions of its "eco-diesel" vehicles to the legal limits in the EU by the end of 2017, nearly €4.1 billion in health costs could have been saved.²⁶

VW is not the only car company producing vehicles that have emitted far higher than certification limits in real-world driving conditions. In May 2017, the United States filed a complaint against Fiat Chrysler alleging the company installed defeat devices to cheat on federal emissions test procedures in violation of the Clean Air Act (CAA).²⁷ Researchers believe it is likely that other diesel manufacturers have cheated on emissions testing.²⁸ If there is not an effective regulatory system in place to hold future automakers accountable and keep emissions within legal limits, the harms to public health and our environment will only continue to grow.

C. An Argument for Continued Success in the United States

"Rolling back" the United States' existing regulations for the emissions of new light-duty diesel motor vehicles will result in a structure that is far too

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flexible to support any strong enforcement response against potential future violators. By comparing the U.S. and Germany's separate responses to the VW emissions cheating scandal, this Comment demonstrates the serious potential harm of eliminating existing U.S. regulations to be more flexible and thus more amenable to industry. Currently, the EPA is strong enough not only to hold violators responsible, but also to deter other automakers from following in VW's footsteps. Meanwhile, Germany's regulatory body for vehicle emissions, the Kraftfahrt-Bundesamt (KBA), lacks enough leverage to keep its own manufacturer in line and enforce emissions standards for the vehicles it approves.

While this Comment argues that the United States has a far stronger approach to regulating emissions from light-duty diesel vehicles than Germany, the U.S. approach is not perfect. Because emissions test parameters are public knowledge,²⁹ automakers can design their emissions control devices "to the test."³⁰ For example, the VW "eco-diesel" family of vehicles had a software device that controlled emissions to the legal limits for the first thirty minutes that the vehicle ran but then gradually stopped working as the engine continued to run.³¹ This is likely because the federal emissions testing procedure used in the United States is approximately twenty minutes long, thus providing an opportunity for VW to evade notice of its practices for seven years.³²

Additionally, compliance assurance testing of emissions from vehicles that have been approved by EPA may be improved using Portable Emissions Measurement Systems (PEMS).³³ PEMS are devices placed on the tailpipes of vehicles to monitoring the real-time emissions from the vehicle in everyday driving.³⁴ These systems can gather a large amount of data on a wide variety of vehicles to analyze any overall discrepancies in the emissions that vehicles may have.³⁵ A federal PEMS program may have the potential to gather even more data and aid in discovering potential emissions issues nationwide.

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Before improvements like PEMS can be entertained, the current vehicle emissions regulations must remain in place. There cannot be any progress in this area of regulatory and administrative law if the United States reverts to a system like that of Germany's in which there is effectively no emissions regulation of automakers. In a time of "regulatory backlash," and attempts by the Trump Administration to "roll-back" environmental regulations,³⁶ this Comment will focus...