Justice Delayed: Mercedes-Benz's Diesel Pollution Remains Unprosecuted

by Joel Mintz

October 16, 2018

To serve the cause of justice, law enforcement must be prompt, even-handed, and appropriate to the circumstances of individual cases. In their handling of an important recent pollution case, however, the enforcement activities of the Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) have been none of those things.

The case involves the alleged use by Mercedes-Benz of software "defeat devices" in its diesel cars to override pollution control devices. There is considerable evidence that Mercedes' misconduct was intentional, and that over a period of years, its systematic cheating resulted in the emission of many times the allowable amount of nitrogen oxide – a pollutant that harms human health and contributes to climate change, smog, and other air pollution problems. In fact, one Mercedes diesel model's maximum emissions were found to be a whopping 91 times the emission standard.

The Mercedes-Benz defeat device scandal came to light in early 2016, prompting EPA and DOJ to launch investigations into Mercedes and its parent company, Daimler AG. However, since the Trump administration took office in January 2017, this investigation appears to have stalled. No enforcement action has been taken against Mercedes or any of its executives, and Trump administration officials have offered no explanation for the more than two-and-a-half-year delay in completing a review of the facts.

We know that U.S. authorities can move quickly in such cases because they did so when Volkswagen (VW) broke the law in the same way. In 2015, EPA received information that VW was using defeat devices on its diesel vehicles when they were driven on roads but not during testing, and, as a result, unlawfully emitting vast quantities of nitrogen oxides into the air. After 18 months of providing the regulators with bogus "explanations" for its diesel car pollution, VW ultimately admitted to California and EPA that its sophisticated cheating was the cause of the air pollution in question.

During the Obama administration, the government's responses to emissions cheating were firm and speedy. Only two weeks after receiving VW's grudging admission of its scheme, EPA issued a Clean Air Act Notice of Violation. Less than three months later, DOJ filed a civil lawsuit in federal court and undertook a criminal investigation into VW's misdeeds. Contentious negotiations followed, at the close of which DOJ obtained a record-breaking settlement. VW agreed to plead guilty to three criminal felony counts, to pay substantial criminal and civil fines, and to recall the vehicles and replace the defeat devices in them with legitimate pollution control systems. All told, federal authorities garnered $25 billion in fines, penalties, civil damages, and restitution from VW for the illegal diesels it sold in this country.

Both the VW and Mercedes cases appear to involve intentional wrongdoing by automakers who knowingly tricked federal and state regulators, and their own customers, by using identical techniques to bypass pollution controls and release significant amounts of air pollution. So why treat VW and Mercedes differently? The most logical explanation seems to be that the Trump administration is doing one more favor for a wealthy and powerful company by overlooking its egregious environmental violations.

As things stand now, the only credible explanation for the kid-glove treatment the Trump administration is giving Mercedes is that it's yet another example of the administration's wholesale abandonment of its obligation to faithfully execute the nation's environmental laws and protect Americans' health. Complaining about environmental regulations is a standard track on the president's rhetorical play list. This is what it translates to in the real world: Letting a rich company off the hook for deliberate cheating so that it can make a few extra bucks while polluting the air we all breathe.

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Also from Joel Mintz

Joel A. Mintz is a tenured full professor at Nova Southeastern University Law Center in Fort Lauderdale, Florida.

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