VW caught cheating on emissions

[blwnsmoke]

And things look like they may be getting worse...

 

 

http://www.businessinsider.com/r-ex-employee-sues-vw-in-us-over-data-deletion-german-media-reports-2016-3

 

 

 

FRANKFURT (Reuters) - A former employee of Volkswagen's U.S. subsidiary is suing the company for damages, claiming he was unlawfully fired after flagging internally what he alleged was illegal deletion of data, a group of German media outlets said on Sunday.

 

 

 

However, the media reports said that the former VW employee was alleging that VW in the United States had destroyed evidence in relation to the emissions scandal.

 

 

The media reports said the former VW employee said he was following his manager's orders in trying the stop the deletions but he also said an ensuing row over the matter and VW's fears he would alert the authorities led to his dismissal.

The media reports said the deletions took place after a U.S. Department of Justice order to stop any "routine" data deletion at Volkswagen of America.

[RichardJensen]

This isn't emissions testing

 

FYI: You're not the only one who said that proof of compliance would be required in states where emissions tests are already on the books.

Edited March 13, 2016 by RichardJensen

[RichardJensen]

My position, in brief:

 

In states where laws require proof that emissions related recalls have been performed to renew registration, that will suffice.

 

In states where no such law exists, the significant cash settlement that will be paid to owners of VW diesels to cover waste (and various other torts) will be contingent on furnishing proof that the recall has been performed.

 

Possibly, akirby and I are talking across each other

Edited March 13, 2016 by RichardJensen

[jpd80]

In any regard, VW simply cannot issue a recall and call its duty done regardless of how few cars respond.

 

And things look like they may be getting worse...

 

 

http://www.businessinsider.com/r-ex-employee-sues-vw-in-us-over-data-deletion-german-media-reports-2016-3

Wow, can VW-gate get any bigger.....

 

The longer all this goes on the messier it's going to get for VW,

"clean diesel" could be the ruination of VW...

[akirby]

My position, in brief:

 

In states where laws require proof that emissions related recalls have been performed to renew registration, that will suffice.

 

In states where no such law exists, the significant cash settlement that will be paid to owners of VW diesels to cover waste (and various other torts) will be contingent on furnishing proof that the recall has been performed.

 

Possibly, akirby and I are talking across each other

 

What you said above is fine. What I'm saying (and I could be wrong) is that the mfr has admitted that these vehicles do not meet Federal emissions standards. The state can refuse to register the vehicle based on Federal law IF THEY CHOOSE TO DO THAT. They're not required to do it, but to me this is no different than when you try to import a foreign vehicle less than 25 yrs old. They have to meet EPA standards or get an exemption or you can't register it (in most states at least).

 

If any state chooses to flag these vehicles and not renew their registration they can do that based on Federal EPA emissions regulations. States that have state laws can use those instead or in addition to the Federal law.

[RichardJensen]

 

The state can refuse to register the vehicle based on Federal law

 

AFAIK, they can't in SD.

 

I can't find anything in the SD title that says that the state can refuse to register a vehicle if the initial certification provided by the EPA is later found to have been issued in error.

 

While VW seems to have almost certainly violated laws in selling the products, SD does not assess civil or criminal penalties for operating an out-of-compliance vehicle, whether it's out of compliance because it was never compliant in the first place or if the owner subsequently modified the car.

 

This isn't like buying a stolen TV, where you, the buyer, can have the TV confiscated because you never had a legal right to buy it.

[papilgee4evaeva]

AFAIK, they can't in SD.

 

I can't find anything in the SD title that says that the state can refuse to register a vehicle if the initial certification provided by the EPA is later found to have been issued in error.

 

While VW seems to have almost certainly violated laws in selling the products, SD does not assess civil or criminal penalties for operating an out-of-compliance vehicle, whether it's out of compliance because it was never compliant in the first place or if the owner subsequently modified the car.

 

This isn't like buying a stolen TV, where you, the buyer, can have the TV confiscated because you never had a legal right to buy it.

 

Even though DC doesn't handle vehicle registrations, I would think that since this case involves federally illegal vehicles sold in all 50 states, the federal government would have the final say and not any one state. Whatever happens, a new legal precedent will be set. And it's not gonna end well for at least one involved party.

 

I was thinking of when VW sold a Touareg V10 TDI and an Audi Q7 V12 TDI for a short time last decade, then pulled them off the market because the EPA tightened its emissions regulations. Since the CUVs were legal during the year(s) in which they were on the market, federal law doesn't preclude them from still being bought and sold and registered on the used-car market. But this is a different matter, since, as you have alluded, Richard, the argument can be made that the newer cars never should have been able to be sold in the first place.

[akirby]

 

AFAIK, they can't in SD.

 

I can't find anything in the SD title that says that the state can refuse to register a vehicle if the initial certification provided by the EPA is later found to have been issued in error.

 

While VW seems to have almost certainly violated laws in selling the products, SD does not assess civil or criminal penalties for operating an out-of-compliance vehicle, whether it's out of compliance because it was never compliant in the first place or if the owner subsequently modified the car.

 

This isn't like buying a stolen TV, where you, the buyer, can have the TV confiscated because you never had a legal right to buy it.

 

 

Let me ask you this - do you think you can import a 10 yr old vehicle from Europe and register it in South Dakota?

 

Since when does a state need a state law to enforce a Federal law?

[RichardJensen]

 

that the newer cars never should have been able to be sold in the first place.

 

The difference between these cars and a stolen TV is this:

 

Firstly, the law already addresses the good faith acquisition of stolen goods. So that's a major difference right there--the law doesn't say what should happen with these cars. There's no statutory precedent.

 

Secondly, the principle that underlies the confiscation of a stolen TV purchased in good faith is recission. Recission is an equitable remedy that essentially unwinds a contract--the idea is that you return both parties to the state they were in pre-contract (the person whose TV is confiscated is entitled to a full price refund from the person who stole the TV).

 

To be applicable in this instance, the equitable remedy of recission would be a refund of the purchase price, not refusing to let the owner register a vehicle, thus leaving them with a vehicle that cannot be legally operated which they paid for in good faith.

Edited March 14, 2016 by RichardJensen

[RichardJensen]

 

 

Let me ask you this - do you think you can import a 10 yr old vehicle from Europe and register it in South Dakota?

 

Since when does a state need a state law to enforce a Federal law?

 

Without an EPA issued certificate, I can't even get the vehicle into South Dakota in the first place.

 

I would also note that if I fraudulently represent the vehicle's status to the state of SD (e.g. bringing it into the country illegally), then the state can revoke my registration on those grounds.

Edited March 14, 2016 by RichardJensen

[RichardJensen]

 

 

Since when does a state need a state law to enforce a Federal law?

 

Since the Tenth Amendment.

[akirby]

 

Without an EPA issued certificate, I can't even get the vehicle into South Dakota in the first place.

 

I would also note that if I fraudulently represent the vehicle's status to the state of SD (e.g. bringing it into the country illegally), then the state can revoke my registration on those grounds.

 

And how is that any different from the VW situation? These cars are not EPA compliant. Period. So any state can refuse to register it.

[RichardJensen]

FWIW, according to my reading of the CAA, these points apply:

 

1 - violations of the CAA (including the sale of non-compliant vehicles) are exclusively under the jurisdiction of the US court system and the Federal government.

https://www.law.cornell.edu/uscode/text/42/7523

 

2 - violations of the CAA are civil and are spelled out here:

https://www.law.cornell.edu/uscode/text/42/7522

 

3 - penalties are spelled out here:

https://www.law.cornell.edu/uscode/text/42/7524

 

So there does not seem to be any allowance for states to refuse to title a vehicle because it is out of compliance with the CAA. The CAA (1) prescribes the penalties (which do not include refusal to title) and the federal government is the only party that can enforce the CAA.

[akirby]

 

Since the Tenth Amendment.

 

Richard, you're not hearing me. Nowhere am I saying that the Federal gov't can FORCE the states to do this. Nowhere.

 

I'm saying the states can CHOOSE to enforce it if they so desire.

 

Just like they can refuse to register an illegally imported vehicle without EPA certification.

[RichardJensen]

 

And how is that any different from the VW situation? These cars are not EPA compliant. Period. So any state can refuse to register it.

 

One cannot commit fraud in good faith. If I title a vehicle in good faith, I have not lied to the state of South Dakota. Therefore I cannot have the title revoked by the state for committing fraud.

[RichardJensen]

 

I'm saying the states can CHOOSE to enforce it if they so desire.

 

No, they absolutely cannot.

 

The CAA declares both the penalties available under enforcement and the entities permitted to enforce the law.

 

Denial of registration is not an applicable penalty, nor are states permitted to enforce the CAA.

[RichardJensen]

The simplest explanation I can come up with:

 

An enforcement action must be authorized by a statute identifying both the enforcing entity and the penalty sought.

Edited March 14, 2016 by RichardJensen

[RichardJensen]

Could a cop pull over a VW diesel that is not violating any other laws and issue a ticket because the vehicle is out of compliance with the CAA?

Edited March 14, 2016 by RichardJensen

[fordmantpw]

Could a cop pull over a VW diesel that is not violating any other laws and issue a ticket because the vehicle is out of compliance with the CAA?

 

Could that cop do the same if the owner purposely violated the laws by deleting the DPF?

 

Is there a difference? By refusing to get the recall done, wouldn't the owner, in effect, be breaking the same law in a different fashion?

[RichardJensen]

 

Could that cop do the same if the owner purposely violated the laws by deleting the DPF?

 

Is there a difference? By refusing to get the recall done, wouldn't the owner, in effect, be breaking the same law in a different fashion?

 

"An enforcement action must be authorized by a statute identifying both the enforcing entity and the penalty sought."

 

The CAA doesn't have a section authorizing enforcement by local governments, which would encompass citations issued by police and enforcement by state attorneys general through state courts--even for vehicle owners who have deliberately modified their vehicles to be non-compliant.

 

Also, enforcement agencies are generally not allowed to prosecute or sue based on conduct violates the "spirit" of a law. At least not in countries (i.e. US + UK + Commonwealth) that adhere to British jurisprudence. It may be possible (IIRC) in Napoleonic Code countries

Edited March 14, 2016 by RichardJensen

[fordmantpw]

 

"An enforcement action must be authorized by a statute identifying both the enforcing entity and the penalty sought."

 

The CAA doesn't have a section authorizing enforcement by local governments, which would encompass citations issued by police and enforcement by state attorneys general through state courts--even for vehicle owners who have deliberately modified their vehicles to be non-compliant.

 

Also, enforcement agencies are generally not allowed to prosecute or sue based on conduct violates the "spirit" of a law. At least not in countries (i.e. US + UK + Commonwealth) that adhere to British jurisprudence. It may be possible (IIRC) in Napoleonic Code countries

 

So you are saying that a cop could not arrest or fine an owner for violating a federal law such as removing emissions equipment?

[RichardJensen]

 

So you are saying that a cop could not arrest or fine an owner for violating a federal law such as removing emissions equipment?

 

Exactly. The only way a cop can arrest or fine someone for violating a federal law is if:

 

1) the Federal law specifically permits enforcement by state & local governments

 

or, more commonly

 

2) the individual has an arrest warrant outstanding from a federal court

[RichardJensen]

You will see, from time to time, state laws that mirror federal laws (e.g. RICO). In which case, state prosecution (including the initial arrest) takes place under the state law.

 

That's the case in California where the CARB regime mirrors the CAA, and thus California can prescribe enforcement actions by state officials (including the department of motor vehicles & state police), pursuant to violations of state law.

[fordmantpw]

 

Exactly. The only way a cop can arrest or fine someone for violating a federal law is if:

 

1) the Federal law specifically permits enforcement by state & local governments

 

or, more commonly

 

2) the individual has an arrest warrant outstanding from a federal court

 

I thought state & local governments could enforce federal laws unless there was a state or local law that prevented it.

 

By no means am I an expert in this area though.

[RichardJensen]

 

I thought state & local governments could enforce federal laws unless there was a state or local law that prevented it.

 

By no means am I an expert in this area though.

 

Nope. It's exactly the opposite.

 

One of the more amusing tidbits illustrative of this was an SDSU professor who used to advise miscreants to flee to the SDSU campus if they had broken city ordinances and were being pursued. His notion was that SDSU was not part of Brookings, therefore the city had no enforcement jurisdiction and that SDSU cops could not enforce Brookings ordinances.

 

While correct, in theory, the solution is that county, state and university LEOs were all 'cross-sworn' which means that they were legally permitted to enforce laws from the jurisdiction they were cross-sworn into, and that they could enforce laws within those jurisdictions as well, not just their own home jurisdiction.