State ex rel. Yost v. Volkswagen Aktiengesellschaf (Slip Opinion) , 2021 Ohio 2121 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Yost v. Volkswagen Aktiengesellschaft, Slip Opinion No. 2021-Ohio-2121.]
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SLIP OPINION NO. 2021-OHIO-2121THE STATE EX REL. YOST, ATTY. GEN., APPELLEE, v. VOLKSWAGEN
AKTIENGESELLSCHAFT, D.B.A. VOLKSWAGEN GROUP AND/OR VOLKSWAGEN
AG, ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Yost v. Volkswagen Aktiengesellschaft, Slip
Opinion No. 2021-Ohio-2121.]
Federal preemption—Vehicle-emissions anti-tampering claims—The federal Clean
Air Act neither expressly nor impliedly preempts R.C. 3704.16(C)(3) or
precludes an anti-tampering claim against a vehicle manufacturer under
Ohio’s Air Pollution Control Act for the manufacturer’s post-sale
tampering with a vehicle’s emissions-control system—Court of appeals’
judgment affirmed.
(No. 2020-0092—Submitted January 26, 2021—Decided June 29, 2021.)
APPEAL from the Court of Appeals for Franklin County,
No. 19AP-7, 2019-Ohio-5084.
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SUPREME COURT OF OHIO
FISCHER, J.
{¶ 1} In this case, we are asked to decide whether the federal Clean Air Act,
42 U.S.C. 7401 et seq., preempts Ohio law and precludes an anti-tampering claim
under Ohio’s Air Pollution Control Act, R.C. 3704.01 et seq. For the reasons that
follow, we hold that it does not and therefore affirm the judgment of the Tenth
District Court of Appeals.
I. BACKGROUND
{¶ 2} Starting around 2009, appellant Volkswagen Aktiengesellschaft,
d.b.a. Volkswagen Group and/or Volkswagen AG (“Volkswagen”),1 programmed
vehicles manufactured and sold under its various labels with software that would
enable those vehicles to perform better than they otherwise would have on federal
emissions tests. The software, sometimes referred to as a “defeat device,” would
identify when a Volkswagen vehicle was being tested by regulators for compliance
with federal emissions standards. Once the software detected that an emissions test
was in progress, the software would trigger equipment within the vehicle that would
reduce the vehicle’s emissions to an acceptable level. In reality, of course,
emissions from the vehicle during everyday driving, i.e., under non-test conditions,
were well above the federally imposed legal limit.
{¶ 3} Several years into that scheme, Volkswagen learned that its
emissions-control software was not working properly and was causing certain
performance problems in its vehicles. Volkswagen updated the software to fix
those problems and to continue skirting federal emissions standards. Starting
around 2013, Volkswagen installed the improved and updated software in new
1. Other defendants named in the complaint and appellants here are Audi AG; Volkswagen Group
of America, Inc., d.b.a. Volkswagen of America, Inc., or Audi of America, Inc.; Volkswagen of
America, Inc.; Audi of America, L.L.C.; Dr. Ing. h.c. F. Porsche AG, d.b.a. Porsche AG; and
Porsche Cars North America, Inc.
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vehicles slated for sale in the United States. Without telling its customers the true
reason why, Volkswagen also installed the updated software in its older vehicles
through a voluntary recall program and when its customers brought their vehicles
in for routine maintenance.
{¶ 4} Eventually, the United States Environmental Protection Agency
(“EPA”) discovered Volkswagen’s scheme. In a subsequent enforcement action,
Volkswagen admitted to all of this and agreed to pay a $2.8 billion penalty in
connection with its wrongdoing.
{¶ 5} In 2016, then Ohio Attorney General Mike DeWine sued Volkswagen
for its vehicle-emissions tampering, alleging that Volkswagen’s conduct, which
impacted approximately 14,000 vehicles that had been sold or leased in Ohio,
violated Ohio’s Air Pollution Control Act, R.C. 3704.01 et seq. As relevant here,
Volkswagen moved to dismiss the attorney general’s claims on the grounds that
Ohio’s anti-tampering statute was preempted by the federal Clean Air Act, 42
U.S.C. 7401 et seq., and that the attorney general’s claims were therefore precluded.
The trial court agreed with Volkswagen’s preemption argument and granted
Volkswagen’s motion to dismiss.
{¶ 6} On appeal to the Tenth District, appellee, Ohio Attorney General
Dave Yost,2 argued that the trial court erred when it determined that federal
preemption principles barred the state’s claims against Volkswagen, because the
federal Clean Air Act draws a critical distinction between new and used vehicles.
While the attorney general conceded below that federal law alone governs
emissions from new vehicles, he argued that the federal legislative scheme does not
preempt Ohio law and preclude state-based claims concerning post-sale tampering
with a vehicle’s emissions-control system.
2. Attorney General Yost was substituted for former Attorney General DeWine as a party during
the appeal below to the Tenth District. See App.R. 29(C)(1).
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{¶ 7} The Tenth District agreed with the attorney general, concluding that
the federal Clean Air Act evinces “no clear and manifest congressional purpose to
[expressly or impliedly] preempt the State’s in-use motor vehicle emission control
system tampering claims.” 2019-Ohio-5084, 137 N.E.3d 1267, ¶ 29. As a result,
the court of appeals reversed the trial court’s judgment and remanded the matter for
further proceedings. Id. at ¶ 35.
{¶ 8} Following the Tenth District’s decision, Volkswagen appealed to this
court and we accepted its appeal to consider whether the federal Clean Air Act
either expressly or impliedly preempts state-law claims against a manufacturer for
its post-sale emissions control tampering. See 158 Ohio St.3d 1450, 2020-Ohio-
1090, 141 N.E.3d 985.
II. ANALYSIS
A. Federal Preemption
{¶ 9} Before turning to whether federal law expressly or impliedly preempts
Ohio’s anti-tampering law and precludes the state-law claims involved here, it is
helpful to review some basic principles regarding federal preemption.
{¶ 10} The doctrine of federal preemption originates from the Supremacy
Clause of the United States Constitution, which provides that the “the Laws of the
United States * * * shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.” Article VI, cl. 2.
{¶ 11} Under the Supremacy Clause, the United States Congress has the
power to preempt state law. In re Miamisburg Train Derailment Litigation, 68
Ohio St.3d 255, 259, 626 N.E.2d 85 (1994); see also Gibbons v. Ogden, 22 U.S. 1,
210-211, 6 L.Ed. 23 (1824) (“the act of Congress, or the treaty, is supreme; and the
law of the State, though enacted in the exercise of powers not controverted, must
yield to it”). Congress may do so either expressly or impliedly. Kansas v. Garcia,
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___U.S. ___, 140 S.Ct. 791, 801, 206 L.Ed.2d 146 (2020); Girard v. Youngstown
Belt Ry. Co., 134 Ohio St.3d 79, 2012-Ohio-5370, 979 N.E.3d 1273, ¶ 14.
{¶ 12} When Congress expressly preempts state law, it explicitly says so
with clear statutory language. English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110
S.Ct. 2270, 110 L.Ed.2d 65 (1990). When considering whether preemption is
implied, courts look to congressional intent to determine whether Congress meant
to preempt state law without saying as much. See id. at 79. Identifying implied
preemption is thus a little more complicated than identifying express preemption,
but courts generally find this type of preemption in two circumstances.
{¶ 13} The first circumstance occurs when Congress has enacted a
legislative and regulatory scheme that is so pervasive “ ‘that Congress left no room
for the States to supplement it’ ” or when the legislative and regulatory scheme
“ ‘touch[es] a field in which the federal interest is so dominant that the federal
system will be assumed to preclude enforcement of state laws on the same
subject.’ ” (Brackets added in English.) Id., quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). Implied
preemption of this variety is referred to as “field preemption.” English at 79.
Volkswagen has not presented a field-preemption argument here, so we focus our
analysis on the second type of implied preemption, which is discussed below.
{¶ 14} The second circumstance in which implied preemption is found
occurs when a state law “actually conflicts with federal law.” Id. This type of
implied preemption is fittingly referred to as “conflict preemption.” Id. at fn. 5.
Conflict preemption may be broken down further into subcategories depending on
whether the conflict exists because (1) compliance with both state and federal law
is impossible, id. at 79, citing Florida Lime & Avocado Growers, Inc. v. Paul, 373
U.S. 132, 142-143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or (2) the state law
“ ‘stands as an obstacle to the accomplishment and execution of the full purposes
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and objectives of Congress,’ ” id., quoting Hines v. Davidowitz, 312 U.S. 52, 67,
61 S.Ct. 399, 85 L.Ed. 581 (1941).
B. Standard of Review
{¶ 15} Because the “purpose of Congress is the ultimate touchstone,” Retail
Clerks v. Internatl. Assn., Local 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96,
103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963), preemption—whether express or
implied—is primarily a question of legislative intent and so our focus is on the text
and structure of the provisions involved. Ohio State Bldg. & Constr. Trades
Council v. Cuyahoga Cty. Bd. of Commrs., 98 Ohio St.3d 214, 2002-Ohio-7213,
781 N.E.2d 951, ¶ 46; Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct.
1185, 55 L.Ed.2d 443 (1978). Preemption is thus a question of law, Pinchot v.
Charter One Bank, F.S.B., 99 Ohio St.3d 390, 2003-Ohio-4122, 792 N.E.2d 1105,
¶ 39, and we conduct a de novo review of a judgment that was based on preemption
grounds. See Menorah Park Ctr. for Senior Living v. Rolston, ___ Ohio St.3d ___,
2020-Ohio-6658, ___ N.E.3d ___, ¶ 12.
C. The Federal Clean Air Act and Ohio’s Air Pollution Control Act
1. The Federal Clean Air Act Does Not Expressly Preempt Ohio’s Vehicle-
Emissions Anti-Tampering Law and Preclude the Attorney General’s Claims
{¶ 16} When it comes to preemption, Section 209 of the federal Clean Air
Act expressly provides that “[n]o State or any political subdivision thereof shall
adopt or attempt to enforce any standard relating to the control of emissions from
new motor vehicles or new motor vehicle engines subject to this part.” 42 U.S.C.
7543(a).
{¶ 17} Volkswagen contends that the Ohio statute at issue here, R.C.
3704.16(C)(3), is expressly preempted by 42 U.S.C. 7543(a) and that the attorney
general’s claims are precluded as a result. Specifically, Volkswagen asserts that by
prohibiting states from adopting or enforcing standards relating to emissions from
new motor vehicles and new motor-vehicle engines, Congress has expressly
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precluded states from regulating anything relating to a vehicle’s emissions-control
system in any way, including post-sale tampering by the manufacturer. We
disagree.
{¶ 18} Congress has told us exactly what it meant to include within the
scope of the Clean Air Act’s express-preemption provision in 42 U.S.C. 7543(a):
“new motor vehicles” and “new motor vehicle engines.” It has also defined both
of those terms.
{¶ 19} A “new motor vehicle” is defined as “a motor vehicle the equitable
or legal title to which has never been transferred to an ultimate purchaser.” 42
U.S.C. 7550(3). A “new motor vehicle engine” is defined similarly as “an engine
in a new motor vehicle or a motor vehicle engine the equitable or legal title to which
has never been transferred to the ultimate purchaser.” Id.{¶ 20} Congress has also helpfully defined the term “ultimate purchaser,”
as it is used in 42 U.S.C. 7550(3), as “the first person who in good faith purchases
such new motor vehicle or new engine for purposes other than resale.” 42 U.S.C.
7550(5).
{¶ 21} Taken together, the plain text of the applicable statutes indicates that
after a new motor vehicle or new motor-vehicle engine is first sold, the express-
preemption clause in 42 U.S.C. 7543(a) no longer applies. In re Volkswagen
“Clean Diesel” Marketing, Sales Practices, & Prods. Liab. Litigation (“In re
Volkswagen”), 959 F.3d 1201, 1216 (9th Cir.2020). Put differently, the Clean Air
Act expressly preempts only state and local laws regulating or setting vehicle-
emissions standards for new motor vehicles and new motor-vehicle engines. See
42 U.S.C. 7543(a).
{¶ 22} In this case, the relevant Ohio statute, R.C. 3704.16(C)(3), provides
that “[n]o person shall knowingly * * * [t]amper with any emission control system
installed on or in a motor vehicle after sale, lease, or rental and delivery of the
vehicle to the ultimate purchaser, lessee, or renter.”
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{¶ 23} Notably, R.C. 3704.16(C)(3) does not create or adopt any emissions-
control standards and does not apply to new motor vehicles or new motor-vehicle
engines. Instead, it applies only to conduct (tampering) that takes place after a
vehicle has reached its “ultimate purchaser, lessee, or renter.” Consequently, R.C.
3704.16(C)(3) does not fall within the scope of the federal Clean Air Act’s express-
preemption provision.
{¶ 24} In an attempt to get around the plain text of these laws and to avoid
the obvious conclusion that the federal Clean Air Act does not expressly preempt
R.C. 3704.16(C)(3) and preclude anti-tampering claims under Ohio’s Air Pollution
Control Act, Volkswagen calls our attention to the decisions in Allway Taxi, Inc. v.
New York, 340 F.Supp. 1120 (S.D.N.Y.1972), and Engine Mfrs. Assn. v. S. Coast
Air Quality Mgt. Dist., 541 U.S. 246, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004).
Neither Allway Taxi nor Engine Mfrs. Assn., however, supports Volkswagen’s
arguments or requires a different conclusion regarding the applicability of the
express-preemption provision in Section 209 of the Clean Air Act, 42 U.S.C.
7543(a).
{¶ 25} To begin, the federal district court in Allway Taxi upheld a local
ordinance that required taxi cabs operating in New York City to be equipped with
emissions-control devices. 340 F.Supp. at 1122, 1124. In doing so, that court
specifically stated that the definition of “new motor vehicles” provided in the Clean
Air Act reveals a clear congressional intent to “preclude states and localities from
setting their own exhaust emission control standards only with respect to the
manufacture and distribution of new automobiles.” (Emphasis added.) Id. at 1124.
In other words, the Clean Air Act prohibits states and local governments from
“setting standards governing emission control devices before the initial sale or
registration of an automobile.” (Emphasis added.) Id. So, although the Allway
Taxi court cautioned that its decision should not be read to sanction the imposition
of “emission control standards the moment after a new car is bought and
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registered,” id., it nonetheless read the Clean Air Act’s express-preemption
provision as drawing a distinction between pre- and post-sale emissions
regulations.
{¶ 26} Next, nothing in the United States Supreme Court’s decision in
Engine Mfrs. Assn. calls into question this pre- and post-sale distinction. In fact, in
determining whether the Clean Air Act preempted rules regulating the types of
commercial vehicles that could be purchased or leased within a particular region in
California based on different emissions criteria, the court was careful to note that
its decision did not answer whether 42 U.S.C. 7543(a) also preempts rules that
apply “beyond the purchase of new vehicles.” (Emphasis added.) Engine Mfrs.
Assn. at 259. Thus, Engine Mfrs. Assn. does not help this court to decide this
particular case, which involves state-law claims under a statute governing post-sale
conduct and used vehicles.
{¶ 27} Accordingly, we hold that Section 209 of the federal Clean Air Act,
42 U.S.C. 7543(a), does not expressly preempt R.C. 3704.16(C)(3) and preclude
the attorney general’s anti-tampering claims.
2. The Federal Clean Air Act Does Not Impliedly Preempt Ohio’s Vehicle-
Emissions Anti-Tampering Law and Preclude the Attorney General’s Claims
{¶ 28} In addition to its arguments regarding express preemption,
Volkswagen also argues that claims brought under R.C. 3704.16(C)(3) are
impliedly preempted by the Clean Air Act. According to Volkswagen, 42 U.S.C.
7543(a) impliedly preempts Ohio law because R.C. 3704.16(C)(3) conflicts with
and stands as an obstacle to the federal government’s ability to ensure continued
compliance with its vehicle-emissions standards after a new motor vehicle or new
motor-vehicle engine is sold and interferes with the federal EPA’s ability to bring
and resolve enforcement actions. As with our conclusion regarding its express-
preemption arguments, we find these arguments unpersuasive.
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{¶ 29} Again, arguments calling for a finding of implied preemption, “like
all preemption arguments, must be grounded ‘in the text and structure of the statute
at issue.’ ” Garcia, ___ U.S. at ___, 140 S.Ct. at 804, 206 L.Ed.2d 146, quoting
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d
387 (1993). It is therefore not enough to claim that a state law is impliedly
preempted by simply ascribing “unenacted purposes and objectives to a federal
statute.” Virginia Uranium, Inc. v. Warren, ___ U.S. ___, 139 S.Ct. 1894, 1907,
204 L.Ed.2d 377 (2020). Instead, an actual conflict between the state and federal
law is required. Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 884, 120 S.Ct.
1913, 146 L.Ed.2d 914 (2000), citing English, 496 U.S. at 78-79, 110 S.Ct. 2270,
110 L.Ed.2d 65. For Volkswagen, the lack of an actual conflict is the problem with
its argument here.
{¶ 30} First, although it is true that the Clean Air Act contains provisions
that apply post-sale and provide the federal government with tools to ensure
continued compliance after a new motor vehicle or new motor-vehicle engine is
sold, Ohio’s anti-tampering law does not stand as an obstacle to the federal scheme
or make it impossible to comply with that scheme.
{¶ 31} Indeed, Ohio’s law specifically makes it possible to comply with it
and the federal scheme by stating that it is not a violation of R.C. 3704.16(C)(3) if
the conduct in question is “taken for the purpose of repair or replacement of the
emission control system or is a necessary and temporary procedure to repair or
replace any other item on the motor vehicle and the action results in the system’s
compliance with the ‘Clean Air Act Amendments.’ ” R.C. 3704.16(E)(1).
{¶ 32} Importantly, that means that Ohio’s law does not conflict with the
federal vehicle-warranty statute, 42 U.S.C. 7541(a)(1), federal vehicle-recall
procedures, 42 U.S.C. 7541(c)(1), or federal useful-life requirements, 42 U.S.C.
7521(a)(1) and (d). It also means that Volkswagen’s fears that it will be punished
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for actions taken in response to EPA guidelines or for modifications approved by
the EPA are unfounded.
{¶ 33} The bottom line here is that as long as Volkswagen complies with,
rather than circumvents, federal law it will have nothing to worry about in Ohio
regarding actions brought under R.C. 3704.16(C)(3). By definition, under these
circumstances, there is no conflict between the relevant federal and state statutes or
any obstacle to Congress’s objectives.
{¶ 34} We also disagree with Volkswagen that there is a conflict between
federal and Ohio law merely because the Clean Air Act also prohibits emissions-
control tampering, see 42 U.S.C. 7522(a)(3)(A), and punishes that conduct, see 42
U.S.C 7524(a). To begin, the fact that there is some overlap between the state and
federal provisions does not automatically indicate that the applicable state law is
impliedly preempted. Garcia, ___ U.S. at ___, 140 S.Ct. at 806-807, 206 L.Ed.2d
146. Likewise, it is no problem for preemption purposes that emissions-control
tampering is punished under both Ohio and federal law. As a matter of fact, it has
long been settled that a state government may punish conduct that the federal
government also punishes. California v. Zook, 336 U.S. 725, 731, 69 S.Ct. 841, 93
L.Ed. 1005 (1949), quoting United States v. Marigold, 50 U.S. 560, 569, 13 L.Ed.
257 (1850) (“ ‘the same act might, as to its character and tendencies, and the
consequences it involved, constitute an offence against both the State and Federal
governments, and might draw to its commission the penalties denounced by either,
as appropriate to its character in reference to each’ ”).
{¶ 35} Moreover, and perhaps most significantly, the Clean Air Act does
not suggest that Congress intended to shield vehicle manufacturers from state-law
emissions-control-tampering liability. In re Volkswagen, 959 F.3d at 1223.
Certainly, if Congress had wished to preclude states from punishing companies or
persons for emissions-control tampering, it could have said so. After all, as the
Ninth Circuit pointed out in In re Volkswagen, a number of states had laws on their
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books prohibiting tampering with emissions-control systems in motor vehicles
during the period in which Congress amended the Clean Air Act, id. at 1219-1220,
and Congress did not make “any changes to the preservation of state authority,” id.
at 1220. Because we can presume that Congress was aware of those state laws
when it amended the Clean Air Act, see Goodyear Atomic Corp. v. Miller, 486 U.S.
174, 184-185, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988), its silence on the issue is
“ ‘powerful evidence that Congress did not intend’ to preempt local anti-tampering
laws,” In re Volkswagen at 1220, quoting Wyeth v. Levine, 555 U.S. 555, 575, 129
S.Ct. 1187, 173 L.Ed.2d 51 (2009).
{¶ 36} Finally, we reject Volkswagen’s argument that the potential
imposition of state-law penalties under R.C. 3704.06 makes it impossible for the
federal EPA to administer its vehicle-emissions program or interferes with the
federal EPA’s ability to resolve enforcement actions.
{¶ 37} First of all, it is not impossible for a violator to pay federal penalties
and state-law penalties relating to the same conduct, so exposure to liability at the
state level does not necessarily frustrate the purpose of the federal scheme. See
Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 257, 104 S.Ct. 615, 78 L.Ed.2d 443(1984). The fact that such penalties might be considerable when aggregated, as
Volkswagen contends, does not change that conclusion. California v. ARC Am.
Corp., 490 U.S. 93, 105, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989) (“Ordinarily, state
causes of action are not pre-empted solely because they impose liability over and
above that authorized by federal law”).
{¶ 38} Additionally, there is no evidence that the potential for liability
under Ohio’s anti-tampering law actually frustrates or interferes with the federal
government’s interests in any way. In fact, despite the likelihood of subsequent
actions by states and local governments here, the federal EPA was tellingly able to
resolve its case against Volkswagen. The mere possibility that future enforcement
actions might be slightly more difficult because of a defendant’s potential exposure
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to dual liability does not provide a basis for this court to hold that Ohio’s anti-
tampering law is preempted and that the attorney general’s claims here are
precluded. Garcia, ___ U.S. at ___, 140 S.Ct. at 807, 206 L.Ed.2d 146, quoting
United States Constitution, Article VI, cl. 2 (“The Supremacy Clause gives priority
to ‘the Laws of the United States,’ ” not the “enforcement priorities or preferences
of federal officers”).
{¶ 39} Since “as in any field of statutory interpretation, it is our duty to
respect not only what Congress wrote but, as importantly, what it didn’t write,”
Virginia Uranium, ___ U.S. at ___, 139 S.Ct. at 1900, 204 L.Ed.2d 377, we cannot
ignore these realities and manufacture a conflict that has no basis in the text and
structure of the applicable state and federal statutes just because it would be
advantageous for a particular party. We therefore conclude that Ohio’s anti-
tampering law, R.C. 3704.16(C)(3), and the attorney general’s claims under that
provision are not impliedly preempted by the federal Clean Air Act.
III. CONCLUSION
{¶ 40} For the reasons stated above, we hold that the federal Clean Air Act
neither expressly nor impliedly preempts R.C. 3704.16(C)(3) or precludes an anti-
tampering claim under Ohio’s Air Pollution Control Act for a manufacturer’s post-
sale tampering with a vehicle’s emissions-control system. Accordingly, we affirm
the judgment of the Tenth District Court of Appeals.
Judgment affirmed.
DEWINE, STEWART, and DELANEY, JJ., concur.
O’CONNOR, C.J., and KENNEDY, J., concur in judgment only.
DONNELLY, J., dissents, with an opinion.
PATRICIA A. DELANEY, J., of the Fifth District Court of Appeals, sitting for
BRUNNER, J.
_________________
DONNELLY, J., dissenting.
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{¶ 41} I respectfully dissent from the majority’s holding that the federal
Clean Air Act, 42 U.S.C. 7401 et seq., does not preempt the antitampering claim
brought by appellee, the Ohio Attorney General, pursuant to Ohio’s Air Pollution
Control Act, R.C. 3704.01 et seq. I would hold that appellant Volkswagen
Aktiengesellschaft, d.b.a. Volkswagen Group and/or Volkswagen AG
(“Volkswagen”), has met its burden of showing that the state-law claim is impliedly
preempted by federal law.
{¶ 42} Generally, there are two ways in which federal law may impliedly
preempt state law: (1) the federal law is so comprehensive in scope that it occupies
the entire field of the regulated activity (“field preemption”), or (2) the federal law
and the state law are actually in conflict with each other (“conflict preemption”).
Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d 919,
¶ 7. Because the parties here have framed their arguments around conflict
preemption rather than field preemption as a distinct matter, I will focus on the
conflict-preemption aspect of the preemption doctrine. .
{¶ 43} Within the category of conflict preemption there are two
subcategories: (1) “impossibility preemption,” which applies when it is impossible
to comply with both the state law and the federal law, and (2) “obstacle
preemption,” which applies when the “state law ‘stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.’ ” English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110
L.Ed.2d 65 (1990), quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85
L.Ed. 581 (1941). Regarding impossibility preemption, given that the attorney
general is seeking to penalize Volkswagen for its fraud against the United States
Environmental Protection Agency (“EPA”) relating to motor vehicles that were
certified by the EPA, motor-vehicle-emissions standards that were set by the EPA,
and actions monitored by the EPA, and for violations that have already been
penalized by the EPA, it is readily apparent that it was possible for Volkswagen to
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have complied with both the Ohio and federal laws that prohibit tampering with
motor-vehicle-emissions systems. Thus, obstacle preemption is the only type of
conflict preemption that might apply in this case.
{¶ 44} For Volkswagen’s violations of Title II of the federal Clean Air Act,
which spanned about a decade and affected motor vehicles throughout the United
States, the EPA carefully crafted a multibillion-dollar penalty that balanced a
variety of financial and environmental factors pursuant to 42 U.S.C. 7524. In my
view, the attorney general’s decision to seek an additional judgment that could total
more than $1 trillion involves nothing more than the attorney general’s
disagreement with the penalty that the federal government carefully crafted. In this
immediate sense, I believe that there is a clear conflict between the federal and state
objectives. And when considering the possibility of similar lawsuits from other
states and municipalities across the United States, a broader conflict is apparent;
such an action threatens to undermine the enforcement power of the EPA and
thereby the efficacy of the entire federal scheme. Because the attorney general’s
antitampering claims stand as an obstacle to the execution of the full purposes of
Congress in the Clean Air Act, they are preempted by federal law.
{¶ 45} The EPA plays a central role in the Clean Air Act, and its
enforcement and penalty powers are crucial to the effectiveness of the federal law.
In Title II of the Clean Air Act, Congress directs the EPA to “prescribe * * *
standards applicable to the emission of any air pollutant from any class or classes
of new motor vehicles or new motor vehicle engines.” 42 U.S.C. 7521(a)(l). In
order for it to be able to follow that mandate, the EPA is empowered to set
emissions standards for motor vehicles, 42 U.S.C. 7521(a)(l) and (3), establish
emissions-control technology requirements, e.g., 42 U.S.C. 7521(a)(6), and
regulate the use of emissions-control devices, 42 U.S.C. 7521(a)(4)(A). These
exclusively federal standards apply throughout a vehicle’s “useful life,” 42 U.S.C.
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7521(a)(1), and the EPA is authorized to monitor vehicles and their manufacturers
throughout that time, 42 U.S.C. 7541 and 7542.
{¶ 46} In order for it to enforce the standards and regulations, the EPA is
empowered by the Clean Air Act to conduct testing to ensure that new motor
vehicles comply with the federal law as a prerequisite to certification and to refuse
to certify vehicles that do not meet the requirements. 42 U.S.C. 7521(m); 42 U.S.C.
7525. Even when a vehicle is no longer considered new under the Clean Air Act,
the EPA requires the manufacturer to report any emissions-related defect that
affects 25 or more of the vehicles of the same model year, 40 C.F.R. 85.1903,
including defects in “software * * * which must function properly to ensure
continued compliance with emission standards,” 40 C.F.R. 85.1902(b)(2). The
EPA requires manufacturers to test a portion of the in-use vehicles that they
manufactured, 40 C.F.R. 86.1845-04 and 86.1827-01, and if the vehicles fail those
tests then the EPA may require the vehicles to be recalled, 42 U.S.C. 7541(c)(1).
The EPA also has the power to bring civil enforcement actions against
manufacturers for their violations of the federal law, 42 U.S.C. 7523 through 7525,
including violations of the federal statute prohibiting tampering with a motor
vehicle’s emissions system either before or after the sale of the vehicle, 42 U.S.C.
7522(a)(3)(A).
{¶ 47} The EPA’s central enforcement mechanism is its power to impose
civil penalties pursuant to 42 U.S.C. 7524. The EPA may begin the penalty process
either by filing suit in a federal court or by imposing an administrative penalty that
may later be subject to judicial review. 42 U.S.C. 7524(b) and (c). Through either
method, the goal is to determine an appropriate penalty amount by balancing
various factors such as “the gravity of the violation, the economic benefit or savings
(if any) resulting from the violation, the size of the violator’s business, the violator’s
history of compliance * * *, action taken to remedy the violation, the effect of the
penalty on the violator’s ability to continue in business, and such other matters as
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justice may require.” 42 U.S.C. 7524(b) and (c)(2). It is in that method of enforcing
the Clean Air Act and, particularly in its requirements for determining an
appropriate penalty, that the conflict between the federal and Ohio laws is most
apparent.
{¶ 48} In crafting an appropriate penalty for a violation of Title II of the
Clean Air Act, the EPA’s goal is to adequately deter future violations. But it must
also balance the need for deterrence with factors such as the potential for the penalty
to cause the manufacturer to go out of business, the need to not create precedent
that adversely affects the EPA’s ability to enforce the law, and any relevant
“competing public interest considerations.” United States Environmental
Protection Agency, Clean Air Act Title II Vehicle & Engine Civil Penalty Policy,
at 18-19, available at https://www.epa.gov/sites/production/files/2021-
01/documents/caatitleiivehicleenginepenaltypolicy011821.pdf (accessed June 9,
2021) [https://perma.cc/95DE-8JMB]. Imposing a penalty so steep that it causes a
manufacturer to go out of business might have the immediate negative effect of
rendering the manufacturer unable to pay any of its penalties and a wider negative
effect of wiping out a large swath of jobs from the United States automotive
industry and making vehicles less affordable for United States citizens. Such
effects would certainly go against the public’s best interests.
{¶ 49} Moreover, if states and municipalities are permitted to sue motor-
vehicle manufacturers based on admissions made when settling civil actions with
the EPA, manufacturers will be deterred from making such admissions. The
efficacy of the EPA’s rulemaking and enforcement powers would be severely
reduced if manufacturers were to be disincentivized from cooperating with the EPA
and other federal governmental entities.
{¶ 50} Following Volkswagen’s cooperation with the federal government,
it entered into a plea agreement and consent decrees with the EPA in 2017, which
required Volkswagen “to pay $4.3 billion in civil and criminal penalties, to invest
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$2.0 billion in Zero Emission Vehicle technology, to recall and/or repair the
affected vehicles, and to contribute $2.925 billion to an emissions mitigation trust.”
In re Volkswagen “Clean Diesel” Marketing, Sales Practices, & Prods. Liab.
Litigation, 264 F.Supp.3d 1040, 1044 (N.D.Cal.2017). Of the $2.925 billion that
Volkswagen paid into the emissions-mitigation trust, over $75 million was
allocated to the state of Ohio. The fact that the EPA was empowered by Congress
through the Clean Air Act to reach such a large-scale settlement with Volkswagen
regarding its nationwide misconduct—and the fact that the federal law obligates the
EPA to craft a penalty that thoughtfully balances a multitude of competing
interests—indicates to me that the attorney general’s seeking a potential additional
$1 trillion penalty pursuant to Ohio’s Air Pollution Control Act, R.C. 3704.01 et
seq., for a local portion of that same misconduct conflicts both with the EPA’s
immediate authority and the longer-term goals underlying the federal law.
{¶ 51} Courts in Alabama, Minnesota, and Tennessee have concluded that
similar antitampering claims filed in their respective states conflicted with the
Clean Air Act, because the claims stood as an obstacle to the EPA’s effective
execution of the purposes and objectives of the Clean Air Act. See State ex rel.
Slatery v. Volkswagen Aktiengesellschaft, Tenn.App. No. M2018-00791-COA-R9-
CV, 2019 WL 1220836, *13 (Mar. 13, 2019); State of Alabama v. Volkswagen AG,
279 So.3d 1109, 1128-1129 (Ala.2018) (“Alabama”); State by Swanson v.
Volkswagen Aktiengesellschaft, Minn.App. No. A18-0544, 2018 WL 6273103, *6-
9 (Dec. 3, 2018). I recognize that one federal circuit court of appeals has come to
the opposite conclusion. See In re Volkswagen “Clean Diesel” Marketing, Sales
Practices, & Prods. Liab. Litigation (“In re Volkswagen”), 959 F.3d 1201 (9th
Cir.2020). But this court is not required to follow those rulings, including any
ruling of a federal circuit court. See State v. Burnett, 93 Ohio St.3d 419, 424, 755
N.E.2d 857 (2001). We are free to determine which ruling is better-reasoned and
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more persuasive, and I find the decisions from the courts in Alabama, Minnesota,
and Tennessee more compelling.
{¶ 52} I disagree with the view of the United States Court of Appeals for
the Ninth Circuit, adopted by the majority here, that any conflict between the
federal and state laws is rendered irrelevant by the fact that it is perfectly
permissible in other circumstances for the same conduct to be punished by both the
state and federal governments. In re Volkswagen at 1224-1225; see also majority
opinion at ¶ 34-35, citing California v. Zook, 336 U.S. 725, 731, 69 S.Ct. 841, 93
L.Ed. 1005 (1949), and United States v. Marigold, 50 U.S. 560, 569, 13 L.Ed. 257(1850). In Zook and Marigold, the United States Supreme Court rejected the notion
that federal preemption of state law is implicated simply when the federal and state
laws prohibit the same conduct and create the possibility of “double punishment.”
Zook at 737 (regarding state and federal prosecutions for selling transportation of
persons without an Interstate Commerce Commission permit); Marigold at 568-
569 (regarding state and federal prosecutions for counterfeiting). But the concern
here does not implicate the mere possibility of double punishment; the concern is
that punishment by the state will undermine the ability of the federal government
to effectively enforce its environmental laws. In Marigold, the state criminal
prosecution did not undermine any attempt by the federal government to negotiate
with counterfeiters across the nation to reach a resolution that adequately penalized
the counterfeiters but that still took into account the public’s interest in not crippling
the entire counterfeiting industry; the prosecution simply sought to punish discrete
conduct that was also punishable by federal law. The context of Marigold and Zook
render the court’s holdings in those cases inapplicable to the case at hand.
{¶ 53} The decisions by the courts in Alabama, Minnesota, and Tennessee
more persuasively reason that state emissions-tampering lawsuits (like that at issue
here) conflict with the federal Clean Air Act, because the penalties sought in such
lawsuits would upset the balance that the EPA is both empowered and obligated to
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achieve when penalizing manufacturers under the federal law and undermine the
EPA’s ability to achieve such a balance in the future. See Slatery at *13; Alabama
at 1128-1129; Swanson at *8. Rather than having only the effect of exacting a
double punishment against Volkswagen, the potential state sanctions here are “at
odds with achievement of the federal decision about the right degree of pressure to
employ,” and the inconsistency of the potential sanctions “undermines the
congressional calibration of force,” Crosby v. Natl. Foreign Trade Council, 530
U.S. 363, 380, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000); see also Alabama at 1126;
Swanson at *8.
{¶ 54} The regulation of motor-vehicle emissions reflected in Title II of the
Clean Air Act has been “a principally federal project,” and the exclusive federal
regulation of motor-vehicle emissions is necessary in part because “the possibility
of 50 different state regulatory regimes ‘raise[s] the spectre of an anarchic
patchwork of federal and state regulatory programs, a prospect which threaten[s] to
create nightmares for the manufacturers.’ ” Engine Mfrs. Assn. v. United States
Environmental Protection Agency, 88 F.3d 1075, 1079 (D.C.Cir.1996), quoting
Motor & Equip. Mfrs. Assn., Inc. v. Environmental Protection Agency, 627 F.2d
1095, 1109 (D.C.Cir.1979). Allowing states like Ohio to individually regulate and
penalize manufacturers for violations relating to motor-vehicle emissions
undermines the EPA’s comprehensive and carefully balanced enforcement power
and creates the anarchic patchwork of federal and state regulatory programs that
the Clean Air Act is specifically designed to prevent. Accordingly, because the
antitampering claims brought by the attorney general pursuant to R.C. 3704.01 et
seq. undermine the purpose and efficacy of the federal Clean Air Act, they are
preempted by federal law.
{¶ 55} Because I would hold that the attorney general’s state-law claims are
impliedly preempted by federal law and would reverse the judgment of the Tenth
District Court of Appeals, I dissent.
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January Term, 2021
_________________
David Yost, Attorney General, Benjamin M. Flowers, Solicitor General,
Michael J. Hendershot, Chief Deputy Solicitor General, and Aaron S. Farmer and
Karia A. Ruffin, Assistant Attorneys General, for appellee.
Reminger Co., L.P.A., Hugh J. Bode, and Jackie M. Jewell; and Sullivan &
Cromwell, L.L.P., Robert J. Giuffra Jr., David M.J. Rein, Matthew A. Schwartz,
and Judson O. Littleton, for appellants Volkswagen Aktiengesellschaft, d.b.a.
Volkswagen Group and/or Volkswagen AG; Audi AG; Volkswagen Group of
America, Inc., d.b.a. Volkswagen of America, Inc., or Audi of America, Inc.;
Volkswagen of America, Inc.; and Audi of America, L.L.C.
Porter, Wright, Morris & Arthur, L.L.P., L. Bradford Hughes, and Elizabeth
L. Moyo; and King & Spalding, L.L.P., and Joseph Eisert, for appellants Dr. Ing.
h.c. F. Porsche AG, d.b.a. Porsche AG; and Porsche Cars North America, Inc.
Arnold & Porter Kaye Scholer, L.L.P., Jayce Born, Jonathan S. Martel, and
S. Zachary Fayne; and Kevin D. Shimp, urging reversal for amici curiae, United
States Chamber of Commerce, Ohio Chamber of Commerce, and Alliance for
Automotive Innovation.
_________________
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