New diesel emissions scandal: Lawyers take governments to task …

Press release: 22 March 2023

• ClientEarth and national NGOs have sent legal complaints to the French, German and UK governments over their failure to tackle the epidemic of illegal defeat devices, which lead to excessive pollution from diesel vehicles. The complaints could set in motion a ripple effect across Europe. 
• The environmental law charity is calling for auto manufacturers to pay the costs of recalls to fix these vehicles and create a fund – the Dieselgate Clean Up Fund – to reduce emissions from road transport and address the dirty legacy of the Dieselgate scandal. This health and consumer scandal first exposed the use of illegal software in some vehicle models which led to excessive emissions on the road.
• This comes as ground-breaking data released today shows over 19 million vehicles on our roads emit levels of pollution that are so high as to indicate the likely use of illegal defeat devices.

In 2015, the first Dieselgate scandal revealed that VW had been selling diesel vehicles that were fitted with a specific form of defeat device. Defeat devices affect the operation of an engine’s emissions control system – switching it off or reducing its effectiveness in certain conditions. This means that in the real world, vehicles with defeat devices can emit levels of pollution well over regulatory limits, resulting in excessive emissions. 

Despite such devices being prohibited under EU and UK law, today’s analysis by the International Council on Clean Transportation (ICCT) suggests that over 200 vehicle models across almost all major manufacturer groups have reported excess emissions that are so high as to indicate the likely presence of an illegal defeat device. These models represent an estimated 3.3 million vehicles still in use in France, 4.2 million in Germany and over 19 million across the EU and UK.

Diesel vehicles are the main source of illegal levels of nitrogen dioxide, a harmful gas that has a litany of alarming effects on human health. All EU capital cities chart nitrogen dioxide levels far above World Health Organization recommendations.

Little has been done by governments in the EU and UK to fix the full extent of the problem brought to light by Dieselgate and in many cases auto manufacturers have not been sanctioned or held to account to deliver effective solutions. 

Instead, individual consumers have been left to fight for financial compensation through class action lawsuits against auto manufacturers. By comparison, in the US, Volkswagen was forced to buy-back vehicles or offer effective emissions fixes. It also paid almost US$3 billion into a mitigation trust fund to help US states implement action to reduce pollution from road transport.

In these first-of-a-kind complaints, ClientEarth is seeking to hold governments to account for their failure to ensure that the industry as a whole acts to clean up the mess, pointing to evidence to suggest that almost all major auto manufacturers have employed defeat devices which should be prohibited on a proper reading of the law. 

ClientEarth lawyer Katie Nield said: “Over seven years after the first Dieselgate scandal, it’s astounding to see that so little has changed. We’re sending legal complaints to three national governments today to demand that the dirty legacy of Dieselgate is addressed once and for all. This was a betrayal of consumer and public trust and authorities cannot continue to let auto manufacturers off the hook.

“During an unprecedented cost of living crisis, it is more important than ever that governments ensure that auto manufacturers foot the bill to clean up the excessively polluting vehicles they sold to people.” 

The law requires national authorities to actively investigate the issue and force manufacturers to act where the use of illegal defeat devices is found. The rules are clear that vehicle owners should not be left to pay for the costs of any recalls. 

If any one national government forces an auto manufacturer to take corrective measures, other national governments in the EU will have to ensure that similar measures are taken within their own countries – triggering a ripple effect in Europe. 

Nield added: “The excessive emissions produced by these prohibited defeat devices are not only adding to the damage suffered by people breathing toxic air but also to the burden on health services and the economy. So it’s only right that auto manufacturers help to fund further action to reduce pollution from road transport.”

Given the historical and ongoing damage caused to people’s health through the use of defeat devices, ClientEarth is calling for auto manufacturers to pay into a Dieselgate Clean Up Fund that would be used by national governments to reduce pollution from road transport — prioritising the most polluted areas. This could be used to fund, for example: 

• Help and support schemes, prioritising people on low incomes and small businesses, so that they can access genuinely cleaner vehicles and alternatives, e.g. electric cars, car club membership, public transport season tickets, e-bikes and cargo bikes.
• Investment in public transport networks to expand and create new services and make them more reliable, accessible and affordable so that communities have public transport services that they can depend on.
• Retrofitting programmes for older diesel buses and other heavy-duty vehicles to upgrade them to the highest emissions standards.

Following these legal complaints, if authorities fail to act swiftly to comply with their legal obligations on this issue, ClientEarth and national NGOs could start formal legal proceedings in front of national courts.

ENDS

Notes to editors:

Defeat devices 

Defeat devices are any hardware, software or design component in a vehicle used to deactivate or dial down emission control systems in normal driving conditions – meaning vehicles emit far more pollutants (typically nitrogen oxides (NOx), including nitrogen dioxide (NO2) as the harmful component) on the roads than during testing conditions. The use of these devices by manufacturers became public knowledge with the Dieselgate scandal, which broke in 2015.

The use of defeat devices is prohibited under EU and UK law, subject to a very limited number of exemptions (Article 5(2) Regulation (EC) No 715/2007). In a run of recent cases the Court of Justice of the European Union (CJEU) has confirmed that the instances in which manufacturers can legally justify the use of such devices are extremely narrow, and clarified that specific forms of devices which reduce emissions controls within certain temperature ranges commonly experienced in Europe (so called “thermal window” devices) fall within the legal definition of a defeat device (cases C-693/18, C-128/20; C-134/20 and C-145/20). The use of such thermal window devices is known to be widespread, with manufacturers often claiming they are necessary to slow down clogging of certain engine components. However, the CJEU has clarified that defeat devices can only be used to avoid immediate risks of damage or accident to the engine. They cannot be legally justified in any event if they operate to reduce emission controls for most of the year in normal driving conditions, which would undermine the purpose of emissions limits to improve air quality and protect people’s health.

Health impacts of diesel vehicles 

Diesel tailpipe NOx emissions contribute significantly to poor air quality in many European cities.  

On-road diesel vehicles were linked to 35,400 premature deaths in Europe in 2015, when the Dieselgate scandal first broke. Additionally, the Health Effects Institute has found strong connections between traffic-related NO2 pollution and asthma onset in children and adults and acute lower respiratory infections in children.

Legal complaints 

ClientEarth lawyers have sent legal complaints to the Department for Transport in the UK, and, together with France Nature Environnement and CLCV (Consommation, Logement, Cadre de Vie) have sent a further complaint to the Service de surveillance du marché des véhicules et des moteurs (SSMVM) in France. ClientEarth has also supported German NGO, Deutsche Umwelthilfe, to send a legal complaint to the Kraftfahrt-Bundesamt (KBA) in Germany.

They are relying on new laws that came into force in September 2020 requiring market surveillance authorities to carry out tests to assess whether vehicles on the road comply with vehicle standards, including rules prohibiting the use of defeat devices (Regulation (EU) 2018/858). If vehicles are found not to comply, the law says authorities have to act without delay to force manufacturers take corrective action to address the problem. The law also says that authorities are obliged to force corrective action if vehicles are posing a serious threat to people’s health. 

About ClientEarth

ClientEarth is a non-profit organisation that uses the law to create systemic change that protects the Earth for – and with – its inhabitants. We are tackling climate change, protecting nature and stopping pollution, with partners and citizens around the globe. We hold industry and governments to account, and defend everyone’s right to a healthy world. From our offices in Europe, Asia and the USA we shape, implement and enforce the law, to build a future for our planet in which people and nature can thrive together.