The Department of Justice, on behalf of the Environmental Protection Agency, today filed a civil complaint against Volkswagen over allegations that Volkswagen violated the Clean Air Act by installing illegal defeat devices that impaired emission control systems in nearly 600,000 diesel engine vehicles.

The Justice Department filed the civil complaint in federal court in the Eastern District of Michigan against Volkswagen, Audi, Volkswagen Group of America, Porsche and Porsche Cars North America. In a statement, Barbara McQuade, U.S. Attorney for the Eastern District of Michigan, said the complaint is the “first stage in bringing Volkswagen to justice.”

In addition to installing illegal defeat devices that impaired emission control systems, Volkswagen further violated the Clean Air Act by selling, introducing into commerce, or importing into the U.S. motor vehicles that are designed differently from what Volkswagen had stated in applications for certification to EPA and the California Air Resources Board (CARB), according to the Justice Department.

“So far, recall discussions with the company have not produced an acceptable way forward,” said Cynthia Giles, Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance. “These discussions will continue in parallel with the federal court action.”

Consistent with EPA’s notices of violation, issued on Sept. 18, 2015, for 2.0 liter engines and Nov. 2, 2015 for certain 3.0 liter engines, the complaint alleges that the defeat devices cause emissions to exceed EPA’s standards during normal driving conditions.  The Clean Air Act requires vehicle manufacturers to certify to EPA that their products will meet applicable federal emission standards to control air pollution.  Motor vehicles equipped with illegal defeat devices cannot be certified.

The complaint alleges that Volkswagen equipped certain 2.0 liter vehicles with software that detects when the car is being tested for compliance with EPA emissions standards and turns on full emissions controls only during that testing process.  During normal driving situations the effectiveness of the emissions control devices is greatly reduced.  

This results in cars that meet emissions standards in the laboratory and at the test site, but during normal on-road driving emit oxides of nitrogen (NOx) at levels up to 40 times the EPA compliance level.  In total, the complaint covers approximately 499,000 2.0 liter diesel vehicles sold in the United States since the 2009 model year.

Civil Penalties

Fines could run in the tens of billions of dollars. In its complaint, the Justice Department said it is seeking the following civil penalties under the Clean Air Act:

Up to $32,500 per 2-liter vehicle and 3-liter vehicle for each violation occurring before Jan. 13, 2009, and up to $37,500 per 2-liter vehicle and 3-liter vehicle for each violation occurring on or after Jan. 13, 2009 for violations of Section 203(a)(1) of the Act;

Up to $32,500 per 2-liter vehicle and 3-liter vehicle for each violation occurring before Jan. 13, 2009, and up to $37,500 per 2-liter vehicle 3-liter vehicle and for each violation occurring on or after Jan. 13, 2009 for violations of Section 203(a)(3)(A) of the Act;

Up to $2,750 per “defeat device” 2-liter vehicle and 3-liter vehicle for each violation occurring before Jan. 13, 2009, and up to $3,750 per “defeat device” per 2-liter and 3-liter vehicle for each violation occurring on or after Jan. 13, 2009 for violations of Section 203(a)(3)(B) of the Act; and

Up to $32,500 per day of violation occurring before Jan. 13, 2009, and up to $37,500 per day of violation occurring on or after Jan. 13, 2009 for violations of Section 203(a)(2) of the Act.

The United States’ investigation is ongoing, in close coordination with CARB.  “EPA and CARB have been in active discussion with Volkswagen about potential remedies and recalls to address the non-compliance, and those discussions are ongoing,” the Justice Department said in a statement.

The civil complaint concerning violations under Sections 204 and 205 of the Clean Air Act seeks injunctive relief and the assessment of civil penalties. A civil complaint does not preclude the government from seeking other legal remedies. 

The Justice Department said it will seek to transfer its case and fully participate in the pretrial proceedings now initiated in the related multi-district litigation in the Northern District of California.

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