The Agony of Defeat (Devices) | (ACOEL) | American College of …

I’ve been engaged in issues involving mobile sources for more than 40 years.  For much of that time, most of the environmental bar viewed Title II of the Clean Air Act as something that took up space between Titles I and III and had something to do with cars.  That all changed in 2015, when Volkswagen’s “Dieselgate” scandal burst onto the scene, and the term “defeat device” became a popular idiom.  That led to a barrage of federal, state, and international prosecutions of unprecedented scope involving VW and, in time, other vehicle manufacturers. 

Three years ago, EPA announced a new National Compliance Initiative with a focus on decidedly smaller-scale targets:  Titled “Stopping Aftermarket Defeat Devices for Vehicles and Engines,” EPA pledged to crack down on companies – often small businesses – that manufacture, sell and install defeat devices, using the anti-tampering authority in Section 203(a)(3) of the Clean Air Act and the criminal penalties found in Section 113(c)(2)(C) of that statute. 

It’s easy to see how we got here.  Cars and trucks these days have as many as 30-50 computer systems in them, controlling everything from entertainment systems to power windows and lights.  Of significance here, on-board computers employ sophisticated algorithms to control emissions.

Of course, where there are computers, there are hackers; and where there are cars and trucks, there are consumers who want more power and speed.  Well before VW, small companies began marketing performance tuners to boost power, often at the expense of emissions, and even full-on “delete” devices that are specifically designed to bypass or neuter emission controls.  Many of these after-market companies target the popular performance pick-up truck market; others sell tuners and software for cars and motorcycles.

Individually, the impact of any one small manufacturer of defeat devices would seem to be modest.  But cumulatively?  A 2020 EPA study focusing on pick-up trucks estimated that, nationwide, emission controls have been removed from more than half a million vehicles over a 10-year period, a full 15 percent of the certified fleet, resulting in 570,000 tons of excess nitrogen oxides and 5,000 tons of particulate. 

EPA’s compliance initiative is having an impact.  In 2021 alone, EPA resolved 42 cases alleging violations of Title II of the Clean Air Act, nearly all of them penalizing manufacturers, sellers, and installers of defeat devices.  The initiative also seems to be having its intended effect of sending shock waves through the vehicle performance community, possibly chasing some companies from the market before EPA catches up to them.  Even on-line retailers like Amazon and, more recently, eBay have adopted policies barring users of their platforms from selling defeat devices (a prudent move, since Section 203(a)(1) of the Clean Air Act doesn’t just prohibit tampering with emission control devices; it also prohibits a company from “causing” someone else to tamper).

And don’t be surprised if truck and car manufacturers are quietly supporting EPA’s initiative.  While they might not want to alienate their power-hungry customers, modifying emission controls to amp-up horsepower can lead to engine damage and warranty disputes with vehicle owners, as well as reputational damage.

I don’t think this is what the Beach Boys had in mind when they lauded street racing with the refrain, “Shut you off, shut you off, buddy, gonna shut you down.”   But that’s where we’re headed.