A recent court decision against a maker of aftermarket parts, coupled with the new possibility of criminal charges, has jolted an industry.
You might think Volkswagen’s $14.7 billion dirty diesel settlement in 2016 served as a warning not to tamper with vehicle emission systems. Apparently not.
Since the VW settlement, the Environmental Protection Agency has stepped up enforcement against car part makers whose products, in a quest for more speed or economy, disable emissions systems. As amateur racers see it, environmentalists are outlawing their sport.
“This will 100 percent eliminate racing within 10 years,” said Kory Willis, whose Louisiana racing parts shop, PPEI Custom Tuning, is facing enforcement actions. “Every drag strip across the country will be wiped out. No circle tracks, no sprint cars — it all ends.”
At the heart of the conflict is technology that modifies a car’s emission controls — mechanically through aftermarket exhausts, or electronically by taking over a vehicle’s built-in computer. The electronic devices replace the engine’s operating instructions with new instructions that can increase power but also pollution. Extreme examples enable diesels to “roll coal,” blowing thick plumes of black exhaust on command. The software typically conceals itself from emissions tests — exactly as Volkswagen’s did for its lawbreaking diesels.
Racing enthusiasts are concerned because the E.P.A. argued in court that under the Clean Air Act no road vehicle engine can be modified, even for exclusive use on a racetrack. Taken to its extreme, that logic could prohibit stock cars like NASCAR’s.
In November, the E.P.A.’s Office of Enforcement and Compliance issued a study that found pollution controls had been removed from 550,000 diesel trucks over a 10-year period. The modified trucks spewed 1980s levels of contaminants, sending an avoidable 570,000 tons of nitrogen oxides and 5,000 tons of particulate matter into the air, the study said.
Essentially, it found that America has a problem with do-it-yourself dirty diesels.
But the issue is not confined to diesel engines. The E.P.A. has prosecuted pollution-control tampering on trucks, cars and motorcycles. And the stakes have been raised. Vehicle enforcement had traditionally meant civil suits, but in 2018 the E.P.A. began to press criminal charges using a provision that was previously applied only against smokestack industries. That increased penalties to companies, and added the threat of jail for management.
The Specialty Equipment Market Association, better known as SEMA, which represents aftermarket parts makers like those being prosecuted, responded with urgent all-caps alerts such as “PROTECT YOUR RIGHT TO RACE! THE EPA IS BANNING RACECARS,” which could generously be considered a worst-case scenario. It has nonetheless struck a nerve with hot-rodders who echo the claim on social media.
SEMA’s alarm turns on a fine point of law. A recent decision in a federal court in Arizona against Gear Box Z, a maker of what the E.P.A. calls a defeat device, which changes engine and emission settings, serves as an example.
Among Gear Box Z’s claims was that its products were exempt from the Clean Air Act because its defeat devices were intended only for competition vehicles.
That doesn’t matter, the E.P.A. responded. The Clean Air Act has no exception for racing. In fact, the E.P.A. argued, road cars converted to racecars are still subject to Clean Air restrictions.
While the Clean Air Act does not make an exception for racing, an E.P.A. policy memorandum from November does, saying enforcement does not necessarily apply to “E.P.A.-certified motor vehicles that are converted into a vehicle used solely for competition motorsports.”
While that might appear to clear the way, a policy memorandum is not a law, and the Clean Air Act is. In court, law supersedes policy. “To be clear, the E.P.A. is not stopping amateur racing,” said Evan Belser, E.P.A. deputy director of air enforcement, who also acknowledged that the agency reserved the right to go after converted racecars if it chose.
To hot-rodders, the E.P.A. is trying to have it both ways.
SEMA’s solution is the Recognizing the Protection of Motorsports Act, nicknamed the R.P.M. Act, which would amend the Clean Air Act to allow modifications to vehicles “used solely for competition.” The bill, which has bipartisan support in the House and Senate, was passed as a part of a House bill last year, but the Senate has not taken it up.
In the Gear Box Z case, Judge John J. Tuchi’s decision rendered the point moot.
“Much ink has been spilled already in this case regarding whether a motorsports exception, or exclusion, exists in the C.A.A.,” the decision reads. “But defendant has not produced a single piece of evidence that a single one of its products has been used on a motorsports vehicle.” The E.P.A., on the other hand, “produced ample evidence” of its use on street vehicles subject to the Clean Air Act, he wrote.
SEMA frames the federal position as a frightening recipe for overreach, in which the E.P.A. doesn’t allow any street car to become a racecar. That would end amateur racing, and in turn all racing, because there would be no path for developing new pro racers.
“It would be like trying to sustain Major League Baseball without sandlot games, Little League or minor league teams,” said David Goch, SEMA’s general counsel.
Modifying road car exhausts can be made legal in a few ways, most prominently by getting an executive order exclusion from the California Air Resources Board, better known as CARB. The E.P.A. relies on CARB to certify that products conform to Clean Air Act regulations. Between fees and independent testing, an application costs about $6,500 to $9,000 per device, and takes two to nine months to process, the board said.
CARB does offer an automatic exception for racecars, but shops must keep detailed records. Anyone who makes, sells, installs or uses a racing part is liable if that part is illegally used on a public road.
CARB has used that rule to sue out-of-state companies that sold defeat devices in California.
“People who produce devices or programs that modify to the point where it is rolling coal, that is where lines are drawn between civil and criminal,” said Allen Lyons, division chief of the Emissions Certification and Compliance Division of CARB. Some parts companies avoid risk by not selling in California.
Actions against emissions tampering may increase beyond California and the E.P.A. In Utah, an environmental group successfully sued the men who host the Discovery show “Diesel Brothers,” establishing a template for others to follow.
The suit was brought by Utah Physicians for a Healthy Environment, which holds “Clean Air No Excuses” rallies at the State Capitol in Salt Lake City. At one rally, “we had three or four coal rollers drive around the perimeter of the Capitol,” said Dr. Brian Moench, president of physicians group. “They were quite proud of themselves, putting out these blankets of black smoke.”
Soon after, the group was approached by Reed Zars, an environmental lawyer who suggested a citizen suit against mobile polluters, which appears to be a first. “We were still — I don’t know if I can use the word seething — about the coal rollers when he approached us,” Dr. Moench said.
The resulting suit awarded the physician group more than $851,000 in civil penalties, which goes to the federal government, as if the E.P.A. had won the case. Legal fees of more than $915,000 were also awarded to the group, which has filed another suit since, and said it was preparing to file others.