Supreme Court rejects VW emissions fight

By Lesley Clark | 11/15/2021 01:37 PM EST

The Supreme Court has declined to weigh in on a legal battle related to Volkswagen AG's emissions cheating scandal. Volkswagen's auto plant in Chattanooga, Tenn., is shown. Francis Chung/E&E News

The Supreme Court today turned down Volkswagen AG’s request to hear legal disputes in three states stemming from the automaker’s emissions cheating scandal.

The justices decided not to review the cases soon after the Biden administration told the high court that there was no need to revisit a decision by a lower bench that allowed two counties in Florida and Utah to pursue claims against the German automaker over its decision to tamper with emission-control systems in its vehicles (Climatewire, Sept. 29).

In a short order this morning, the court turned down Volkswagen’s plea, as well as a similar petition in Ohio. It did not elaborate on its decision, other than to note that Justice Stephen Breyer did not participate in either case.

Breyer’s brother, Judge Charles Breyer, heard consumer lawsuits against Volkswagen when they came before the U.S. District Court for the Northern District of California.

At issue is Volkswagen’s 2015 disclosure that it used “defeat device” software in new diesel cars that allowed the vehicles to exceed federal nitrogen oxide emissions standards. The automaker had also installed the technology in existing vehicles during a voluntary recall. Like carbon dioxide, nitrogen oxide is a long-lasting greenhouse gas that contributes to climate change.

The 9th U.S. Circuit Court of Appeals found that state and local governments could not hold Volkswagen liable for presale updates to vehicles but concluded that the company could be on the hook for post-sale changes. The high court’s decision not to get involved in the fight could result in Volkswagen being held liable for millions of dollars in damages.

A spokesperson for the law firm Stris & Maher, which represents the Florida and Utah counties, said it “couldn’t be more pleased” with the justices’ decision, adding that “by denying Volkswagen’s petition, the Supreme Court has reaffirmed that local governments play a critical role in combating air pollution.”

Volkswagen asked the high court earlier this year to review its claim that the federal Clean Air Act should prevent state and local officials from seeking damages over the automaker’s updates of emission systems after a vehicle is sold.

The carmaker warned in its Supreme Court petition that the 9th Circuit’s finding “would permit every state and locality to penalize any manufacturer post-sale, model-wide … based on their own local interests” and that states and localities would see financial incentives to bring similar claims (Climatewire, Oct. 14).

The Biden administration argued otherwise, with then-acting Solicitor General Brian Fletcher writing in the government’s "friend of the court" brief that the Clean Air Act “does not bar states and localities from imposing civil penalties for post-sale changes that reduce the effectiveness of emission-control systems in vehicles that are already in use.”

Attorneys for Hillsborough County and Salt Lake County argued that the 9th Circuit “correctly concluded” that federal emission control standards apply only to new vehicles and that the states “retain broad residual power over used motor vehicles.”

The emissions scandal has cost Volkswagen an estimated $35 billion in fines and civil settlements and has resulted in the recall of millions of vehicles.

The Supreme Court petitions were titled Volkswagen v. Environmental Protection Commission of Hillsborough County, Fla. and Volkswagen v. Ohio.