This story is a bit far afield from the normal politics and crime beat, but given how it just came at us out of left field it’s worth questioning whether or not a much larger can of worms has been opened up. The EPA announced this week that Volkswagen was in a lot of trouble – potentially facing billions of dollars in fines – for allegedly rigging the system and creating diesel cars which were designed to cheat on emissions tests during inspection. And they don’t seem to be disputing it, either. (Yahoo Finance News)

U.S. and California environmental regulators on Friday accused Volkswagen AG of deliberately circumventing clean air rules on nearly 500,000 diesel cars and the company could face penalties of up to $18 billion.

The U.S. Environmental Protection Agency alleged that Volkswagen used software in four-cylinder Volkswagen and Audi diesel cars from model years 2009 to 2015 to circumvent emissions testing of certain air pollutants.

“Put simply, these cars contained software that turns off emissions controls when driving normally and turns them on when the car is undergoing an emissions test,” Cynthia Giles, an enforcement officer at the EPA, told reporters in a teleconference.

This isn’t a case of any sort of trick carburetor or jury rigged catalytic converter. The vehicle’s onboard computer could sense when it was hooked up to a diagnostics machine for an emissions test and would conveniently turn on all of its emission control features. (It’s being referred to as a “defeat device.”) Then, when the test was completed and it was unhooked from the computer it would simply shut them off again, boosting performance but also increasing emissions. You almost have to admire the sheer audacity assuming this is true. And given the initial responses from the company they don’t seem to be claiming that they didn’t do it. (Bloomberg)

VW admitted systematically cheating on U.S. air pollution tests for years, the Environmental Protection Agency announced Friday in citing violations that could add up to $18 billion in fines. The company said it has also heard from the Justice Department, which the EPA said could pursue criminal prosecution.

The German automaker has struggled to gain a foothold in the world’s
second-biggest car market with a strategy built in part on touting the efficiency of fun-to-drive “clean diesel” vehicles now shown to be anything but.

So far Volkswagen seems to be taking the line of assuring everyone that they will work to recall the cars and “fix” them to eliminate this problem. It likely won’t bankrupt a company that size, but it’s one heck of an expensive piece of humble pie to eat. If they contest the fines and go to court, however, I’m wondering if they will actually lose. This was some mischief designed to short sheet the system no doubt, but would they have an out if the case goes before a judge? I was looking over some of the state level requirements for the testing of vehicles and the boundaries to be followed are rather bare bones at best. Each vehicle in the qualifying categories which was manufactured after 1996 has to be equipped with an On-Board Diagnostics Generation II (OBDII) system. The emissions portion of this is heavily tied into your annoying “check engine” light.

The way most of the regulations are written seems to indicate that the vehicle must have a functional system of this type which is accurately monitoring system performance and meets the maximum emissions requirements at the time of testing. Obviously the VW vehicles in question were doing just that. But cars today have all sorts of bells and whistles which drivers can use to customize their driving experience. They can switch from “performance” mode to “economy” mode with the push of a button. Things like that obviously affect the vehicle’s emissions. Other such options are available. And when you think about it, the “disable device” was really just putting the car into a different mode of operation which includes heavy emissions control. When it was disconnected and ready to head back out on the road it was switching back to a different mode with a bit more performance. None of that changes the fact that the emissions were within the required limits at the time of testing.

Of course that’s a horribly transparent dodge in terms of legal tactics, but the law is generally held to and enforced based on how it is written. Volkswagen was obviously gaming the system here but if it’s going to come down to 18 billion in fines I can’t help but wonder if they won’t make a run at a defense like that in court.

Exit question: how likely is it that the geniuses at VW and Audi were the only ones to dream this up? This sounds like the sort of thing that a group of engineers might assume was never going to be found out because who is going around doing extra testing of vehicle emissions outside of an inspection station? (In fact, I’m still wondering how the EPA caught on to this unless VW had a disgruntled whistle blower among their ranks.) Are the big, American automakers scrambling right now to cover their own code?