How car companies deliberately designed diesels to breach emissions limits in the real world, but not in testing, and how people are fighting back
The Dieselgate scandal that began with VW now encompasses nearly all major car manufacturers. There is now overwhelming evidence that diesel cars made since 2009 were designed to suppress or turn off their emissions control systems when driven in the real world, but not under test conditions. An excess of hundreds of thousands of tonnes of environmentally harmful and toxic NOx emissions pollute our air as a result.
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Why NOx Emissions Matter
Before cars are sold in the UK they must conform to emissions regulations. For diesel vehicles, these regulations were quite difficult to meet. Diesel engines, operating efficiently, produce a large number of Nitrogen Oxides, so-called “NOx” emissions. The regulations limited NOx emissions because of their effect on the environment and the human respiratory system. In large quantities, they can produce acid rain. In smaller quantities, they damage vegetation and reduces plant growth and crop yields. In humans, it can trigger and exacerbate existing asthma symptoms, whilst aiding the development of asthma in infants, both born and unborn. Once it leaves the urban or rural environment, it enters the upper atmosphere and aids the development of Ozone (O3), a potent greenhouse gas.
Why we know nearly all diesels do not meet emissions limits in the real world
To prevent NOx from inflicting damage on the environment and human health manufacturers install emissions control systems. For cars made between 2009-2014 (Euro 5), they had to limit NOx emissions to 0.18g/km. For cars from 2014 onwards (Euro 6), it is 0.08g/km.
Unfortunately, instead of designing cars to meet these limits, manufacturers have specifically designed their cars to bypass these controls when driven in the real world. For some, it is at higher speeds, for others, it is at "low temperatures" (we’ve seen emission systems turn off below 17 degrees Celsius despite the UK average temperature being 9 degrees Celsius).
A report by Germany’s Federal Motor Transport Authority, the KBA, documents that the Audi A3 2.0, Audi A6 2.0, Audi A6 V6 3.0, BMW 320 2.0, BMW 216 1.6, BMW 530 3.0, Fiat Panda 1.3, Ford Focus 2.0, Honda HR-V 1.6, Land Rover Range Rover Evoque 2.0, Mazda 6 2.2, Mercedes C 220 Bluetec 2.1, Mercedes S 350 Bluetec 3.0, Mercedes Sprinter 2.1, Mitsubishi ASX 2.3, Opel Astra 2.0, Peugeot 308 SW 1.6, Smart fortwo 0.8, Toyota Auris 2.0, Volvo V60 2.0, VW Touareg V6 3.0, Alfa Romeo Giulietta 2.0, Audi A6 V6 3.0, Chevrolet Cruze 2.0, Dacia Sandero 1.5, Fiat Ducato 3.0, Hyundai ix35 2.0, Hyundai i20 1.1, Jaguar XE 2.0, Jeep Cherokee 2.0, Land Rover Range Rover 3.0, Mercedes V 250 Bluetec 2.1, Nissan Navara 2.5, Vauxhall Insignia 2.0, Vauxhall Zafira 1.6, Renault Kadjar 1.6, Suzuki Vitara 1.6, and VW Amarok 2.0 all breached emissions regulations under real-world driving conditions.
Despite this being an extensive list, it is really just the tip of the iceberg. Similar investigations in the United Kingdom and France have implicated further models leading many to suggest that the issue extends to almost all diesel cars.
The car industry's defence
The logical conclusion drawn by many is that all car manufacturers are using so-called ‘defeat devices to cheat emissions tests. After all, the results of the KBA seem to meet the EU’s 2007 definition of a defeat device:
“any element of design which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of activating, modulating, delaying or deactivating the operation of any part of the emission control system, that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use”
Car manufacturers, however, have denied that they are using defeat devices. They claim that the regulations allow their vehicles to dial down or turn off their vehicles emissions controls to protect the engine or the emissions controls system itself.
Why we believe they are Wrong
In December 2020, the car industry’s argument was put to the test in the Court of Justice of the European Union. The court’s judgement severely undermined the car manufacturers’ argument, stating that devices that alter emissions controls cannot be legitimated on grounds that they “contribute to preventing the ageing or clogging up of the engine” but that “in order to be justified, the presence of such a device must allow the engine to be protected against sudden and exceptional damage” or “immediate risks of damage which give rise to a specific hazard”. None of the instances included in the KBA’s reports meets such a definition. As the court points out, the car industry’s peculiar reading of the regulation renders it “meaningless and deprived of any useful effect”. Under such an interpretation NOx emissions are potentially limitless.
Why we are taking action and our environmental pledge
Remarkably, the car industry is doubling down on this argument. With the exception of VW, no other manufacturer has admitted to using unlawful defeat devices in their diesel vehicles. The only way that manufacturers are going to be held accountable is for people to group together and take legal action against the manufacturers.
We will argue that our clients were mis-sold their vehicles. Their cars did not meet regulations and should not have been approved for driving on UK roads. Any subsequent fix to the emissions system may leave them with a car that performs worse, produces more CO2 emissions than advertised, and may lead to increased running and fuel costs.
We will represent as many of the 10 million UK citizens who bought or leased diesel vehicles between 2009 and 2018 and we will fight for them to be compensated. In addition, we intend to seek a special award of damages which is an account of profits made by the offending manufacturers where it is shown that they calculated that the profits made as a result of their wrongdoing would exceed any damages which might be awarded to the claimants.
By joining the Harcus Parker group action, car owners will be making an environmental pledge. The committee of claimants empowered to give instructions to us on behalf of the wider claimant group will expressly agree to take account of each manufacturer’s current and future environmental record, and any plans the car makers have to mitigate the effect their actions have had on our environment and our health. The committee will therefore be encouraged to accept settlement not just on financial terms but on terms that enforce meaningful industry changes now and into the future.
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