eBay accused of allowing sale of emission bypass devices

The DoJ is looking to hold eBay liable for the buying and selling of products on its platform that it alleges include emissions cheat components known as “defeat devices.”

eBay said in a statement yesterday positioning itself as a “commerce leader that connects millions of buyers and sellers around the world,” that it intends to “vigorously defend itself,” adding the “government’s actions are entirely unprecedented.”

US government, meanwhile, is arguing that the company is responsible for unlawful sales and distribution of products bought and sold on its platform. “Laws that prohibit selling products that can severely harm human health and the environment apply to e-commerce retailers like eBay just as they do to brick-and-mortar stores,” said assistant attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division.

The action is a civil lawsuit, filed in Brooklyn, New York court on behalf of US environmental agency the EPA, which regulates vehicle emissions, among other functions. It accuses eBay of breaching the Clean Air Act (CAA); the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Toxic Substances Control Act (TSCA).

Removing emissions controls from a motor vehicle – as DieselGate taught us – can substantially increase how much pollutant it puts out. According to the complaint [PDF], EPA testing found that deleting a motor vehicle’s emissions controls can increase the amount of nitrogen oxides coming out the tailpipe by a factor of up to 300 times, tailpipe carbon monoxide by a factor of approximately 130 times, tailpipe non-methane hydrocarbons by a factor of approximately 1,000 times, and tailpipe particulate matter by a factor of up to 37 times.

Particulate matter (PM) is a form of air pollution composed of microscopic solids and liquids suspended in air and is not only emitted directly from motor vehicles, but also formed in the atmosphere from the combo of the emission of other pollutants, including nitrogen oxides (NO_x) and non-methane hydrocarbons (NMHC) given off by motor vehicles.

The lawsuit includes screenshots of devices being sold on eBay, including the “2011-2019 Ford 6.7 EGR Delete DPP Delete Kit Package Competition Tuner,” which the complaint says was advertised on eBay.com as a “COMPLETE DELETE PACKAGE WITH ALL PARTS NEEDED TO COMPLETELY DELETE YOUR TRUCK.”

eBay’s lawyers haven’t yet filed a response to the lawsuit, but the company said in its press statement yesterday that it had blocked and removed “more than 99.9 percent of the listings for the products cited by the DoJ, including millions of listings each year.”

US attorney Breon Peace for the Eastern District of New York said: “eBay’s sale of emission control defeat devices, pesticides and other unsafe products poses unacceptable risks to our communities disproportionately impacted by environmental and health hazards. Together with our partners, this office will vigorously enforce federal law against those whose conduct endangers public health and the environment.”

For those of us who missed it, Dieselgate refers to the 2014/15-era scandal after VW’s Diesel Competence unit in the US was found to have been using a software function that enabled its cars to cheat the EPA’s emissions tests. The “defeat device” was designed to be able to detect that the car was being tested (basically noting when the wheels were turning but the car wasn’t moving) and switch to a lower emissions setting. When the car was running normally, the setting went back to normal, and emissions were measured as being “up to 40 times higher” than the permitted levels. Prosecutors said the software cheat was fitted to 11 million cars.

Besides the defeat devices, eBay is also alleged to have aided in the sale of unlawful, unregistered, misbranded, or restricted use pesticides as well as “prohibited products containing a restricted chemical.”

The EPA says in the complaint that it sent eBay a letter asking for more info about the sale and distribution of the products, as well as “eBay’s efforts (if any) to address sales not compliant with FIFRA. It says that eBay had responded claiming “it was not subject to FIFRA” and did not provide the requested information.

The complaint also accuses eBay of distributing over “5,600 items in violation of the TSCA Methylene Chloride Rule.”

The justice department is looking for a court order that says eBay’s business practices “as an e-commerce retailer” violate the CAA, FIFRA and TSCA – and it also wants the court to stop eBay from further violations of these laws.

As for the Clean Air Act specifically, the lawsuit seeks unspecified civil penalties for the alleged violations. According to legal experts, for most types of violations, the act authorizes fines up to about $103,000 per day, although in settlements this number is rarely reached. In a recent settlement of CAA violations, a recycling company paid $1.55 million, as well as implementing major compliance measures, to settle a case accusing it of releasing ozone-depleting refrigerants from certain items during their processing and disposal. ®