959 F.3d 1201
9th Cir.2020Background
- Volkswagen installed software "defeat devices" in ~585,000 U.S. diesel vehicles (2.0L and 3.0L) to pass EPA tests while emitting far higher NOx in normal driving, and later deployed deceptive post-sale software updates/recalls that further affected emissions.
- Volkswagen pleaded guilty in federal criminal proceedings and settled civil claims with the EPA for over $20 billion; those federal settlements did not release Volkswagen from state or local civil liability.
- Hillsborough County (FL) and Salt Lake County (UT) sued under local anti‑tampering/defeat‑device laws, alleging violations based on both pre‑sale installation and post‑sale software modifications/field fixes.
- The MDL district court dismissed the counties’ suits: it held §209(a) of the Clean Air Act (CAA) preempted enforcement as to pre‑sale (new) vehicles and also impliedly preempted enforcement as to post‑sale, model‑wide manufacturer conduct.
- The Ninth Circuit affirmed express preemption for pre‑sale vehicles under §209(a), but reversed as to post‑sale enforcement: §209(d) preserves state authority over registered/licensed (post‑sale) vehicles and the CAA does not impliedly preempt state/local anti‑tampering enforcement against post‑sale tampering.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §209(a) expressly preempts local anti‑tampering enforcement as to new (pre‑sale) vehicles | Counties: §209(a) doesn't reach their local anti‑tampering rules | Volkswagen: §209(a) bars any local standard regulating emission control devices on new vehicles | Held: §209(a) expressly preempts application to new/pre‑sale vehicles (affirmed) |
| Whether §209(a) expressly preempts local enforcement as to post‑sale (registered/licensed) vehicles | Counties: §209(a) applies only to new vehicles; §209(d) preserves post‑sale state authority | Volkswagen: applying §209(a) only to pre‑sale would render it ineffective; courts/citing Allway Taxi support broad reach | Held: §209(a) does not expressly preempt post‑sale enforcement; §209(d) preserves state authority post‑sale (district court reversed on this point) |
| Whether the CAA impliedly (obstacle) preempts state/local enforcement of anti‑tampering for post‑sale, including model‑wide manufacturer conduct | Counties: no obstacle preemption; CAA's cooperative federalism and §209(d) preserve state police powers | Volkswagen: state enforcement would obstruct EPA’s model‑wide post‑sale regulatory and recall scheme and frustrate federal objectives | Held: No implied (obstacle) preemption; high preemption threshold unmet, Congress did not clearly intend to displace state post‑sale enforcement (reversed) |
| Whether the CAA’s penalty scheme (42 U.S.C. §7524) precludes independent state penalties for post‑sale tampering | Counties: state penalties are consistent with §209(d) and the CAA’s cooperative scheme | Volkswagen: federal penalty factors and ceilings show Congress struck a penalty balance and intended federal exclusivity | Held: Federal penalty provisions do not displace state penalties; Congress preserved state enforcement and did not manifest intent to make EPA sole enforcer |
Key Cases Cited
- Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011) (articulates high threshold for implied preemption and gives effect to federal saving clauses preserving state authority)
- Wyeth v. Levine, 555 U.S. 555 (2009) (purpose of Congress and statutory text/structure control implied preemption analysis)
- Arizona v. United States, 567 U.S. 387 (2012) (presumption against preemption of state police powers absent clear congressional intent)
- Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) (conflict preemption where federal regulation struck a deliberate balance that state law would disrupt)
- Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015) (obstacle preemption framework: state law that stands as an obstacle to federal objectives is preempted)
- Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004) (definition of a "standard" relating to vehicle emission characteristics for §209 preemption analysis)
- Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323 (2011) (weight given to a saving clause showing congressional expectation of a continued state role)
- Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001) (preemption where state-law claims conflict with a federal regulatory scheme involving fraud on a federal agency)
- Kansas v. Garcia, 140 S. Ct. 791 (2020) (reinforces presumption that federal law controls but does not lightly displace state police powers)
- Gen. Motors Corp. v. United States, 496 U.S. 530 (1990) (describes the CAA as a cooperative‑federalism scheme between states and the federal government)