Appeals court upholds denial of car owner's right to intervene in government case against VW

By Angela Underwood | Jul 9, 2018

A three-judge panel for the 9th U.S. Circuit Court of Appeals recently upheld a district court’s ruling that a Volkswagen owner had no right to intervene in U.S. government’s Clean Air Act enforcement action against the carmaker regarding the installation of “defeat devices” in some diesel vehicles that allowed Volkswagen to cheat on emissions tests.

A three-judge panel for the 9th U.S. Circuit Court of Appeals recently upheld a district court’s ruling that a Volkswagen owner had no right to intervene in U.S. government’s Clean Air Act enforcement action against the carmaker regarding the installation of “defeat devices” in some diesel vehicles that allowed Volkswagen to cheat on emissions tests.

In their July 3 opinion, U.S. Circuit Judges  Marsha S. Berzon, A. Wallace Tashima and William A. Fletcher upheld the U.S. District Court for the Northern District of California ruling in the case.

“The government’s suit arose from the car manufacturer’s installation in some of its cars of 'defeat devices' that allowed Volkswagen to cheat on emissions tests,” Berzon wrote in the opinion.” The parties reached a final proposed consent decree, and the government filed its enforcement action with the court.”

In the 34-page opinion, Berzon wrote that the 2014 finding of "defeat devices" and the settlement process included the agreement in principle and consent decree for the Clean Air Act, and noted the attempt by Ronald Clark Fleshman of Virginia to intervene in the case regarding his 2012 Jetta.

“The specific SIP (state implementation plan) provision Fleshman relied upon reads in full: “No motor vehicle or engine shall be operated with the motor vehicle pollution control system or device removed or otherwise rendered inoperable,” Berzon wrote, adding, “Fleshman maintained in his intervention motion that the EPA’s statement of Sept. 18, 2015, advising that 'the (affected) cars remain(ed) legal to drive and resell,' was inconsistent with the Virginia SIP.”

Fleshman's attempt to intervene in the civil enforcement action was denied by the district court.

Because Fleshman sought to enforce Virginia’s SIP – not the same '“standard, limitation, or order' as the Clean Air Act provisions underlying the government’s complaint – the act did not permit him to intervene as a matter of right,” Berzon wrote.

“In short, Fleshman desires a series of declarations that the Clean Air Act requires the United States to seek a full rescission remedy, and, conversely, prohibits it from pursuing anything short of that in a settlement with VW,” Berzon wrote.

“There are no plausible allegations, nor reason to believe from the record, that the EPA or any state will attempt to subject operators of unmodified Volkswagen vehicles to liability,” Berzon concluded in the opinion.

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