On August 27, 2021, Volkswagen AG and several affiliates (petitioners) filed a petition for a writ of certiorari to the Supreme Court of the United States seeking to overturn a decision of the Ohio Supreme Court that held the Clean Air Act (CAA) did not preempt state antitampering law. Petitioners assert that the Ohio Supreme Court’s decision was wrong because the CAA preempts state laws regulating emission controls. In support of their request to the U.S. Supreme Court, petitioners argue that there is a growing split among lower courts on the issue of CAA preemption, with the U.S. Court of Appeals for the Ninth Circuit (and now the Ohio Supreme Court) holding that the CAA does not preempt state emission control laws and the Alabama Supreme Court and intermediate appellate courts in Tennessee and Minnesota holding that it does.
Volkswagen AG, et al. v. Ohio stems from a 2016 suit filed by the state of Ohio. There, the state claimed that petitioners violated Ohio’s Air Pollution Control Act by installing software in clean diesel vehicles to keep vehicle emissions within certain limits during testing. One year before, the U.S. Environmental Protection Agency (EPA) issued a notice of violation to petitioners and ultimately filed a civil enforcement action regarding this software. Petitioners entered into three consent decrees with EPA. The Ohio suit (as well as several others in state and federal court) followed.
This is not the first petition for cert on this issue. In January 2021, Volkswagen AG and others filed a petition for certiorari seeking to overturn a similar decision of the Ninth Circuit. In April 2021, the Supreme Court invited the Solicitor General’s office to submit briefing on whether cert should be granted. The issue raised by these cases is of particular interest to industry participants because the ability of states or others to bring additional claims in addition to EPA enforcement action substantially changes the calculus for evaluating such matters. Industry participants should monitor these cases to see if the Court decides to review the decisions below.