Several years ago, I detailed how an industry designed to boost and sell devices that tamper with pollution controls tried to use an extremely small portion of its racing business as a Trojan horse to thwart EPA enforcement and release a number of unauthorized devices. to the American public. Since then, neither the EPA nor SEMA (Specialty Equipment Manufacturing Association) have relented in their efforts to reduce or increase pollution.
With a Senate hearing scheduled for later this week, Congress is once again taking up the RPM bill, which has become SEMA’s latest attempt to thwart regulation, so I thought it would be worth taking some time to recap what the heck it is. going on.
Courts reject falsifying industry arguments…twice
Since my blog, there have been at least two separate court cases that the aftermarket industry has fought against the EPA. In both cases, the courts noted the lack of active legitimacy of the parties. While this may sound technical, the rationale is exceptionally important for policymakers to understand.
The first case was a lawsuit brought by Gear Box Z, a supplier of products designed to bypass emissions controls (“defeat devices” as defined by law), and was supported by SEMA in an amicus brief. This case was dismissed because Gear Box Z was unable to prove that ANY of its products were sold to race vehicles. In contrast, EPA was able to provide a substantial amount of evidence showing that these parts were sold and used in road vehicles.
This is the crux of the problem – the vast majority of products sold by the industry are used on our highways and roads, not in the cars of amateur racers on the circuit. Performance products account for about one-quarter of the $50 billion aftermarket, and that $12 billion isn’t spent on the 2 percent of cars used exclusively on race tracks. This is most clearly evident in the overwhelming number of cases involving diesel pickups, but it is also evident when comparing the volumes of disconnect devices sold to the relatively small range of amateur races. In many enforcement cases, companies have made claims that their products are intended for field/track use and have been unable to provide ANY evidence to support that claim.
The second lawsuit was filed by the Racing Enthusiasts and Suppliers Coalition (RESC), an association representing undisclosed businesses that manufacture and sell auto accessories, organized by member SEMA (Circ. 14). In August, a court dismissed the coalition’s lawsuit against the EPA because RESC failed to identify to the court any harm caused to the companies it represents and thus was inactive. One of the reasons it found no harm was that the court disagreed with the coalition’s contention that the EPA had actually done or changed anything, which the EPA had repeatedly emphasized.
What does the Clean Air Act say about emissions manipulation?
The Clean Air Act is crystal clear: no one may interfere with the emissions control of a motor vehicle or the engine of a motor vehicle, period (42 USC § 7522(a)(3)). This was made even clearer in the Clean Air Act Amendments of 1990, after which in 1991 the EPA issued clarifications to anyone working on emission control systems clarifying exactly what the law prohibits. Despite industry claims to the contrary, there is no competition exemption for motor vehicles.
EPA has repeated this time and again to the manufacturers, distributors and installers of the disconnect devices for which SEMA is requesting an exemption. In 2008, the EPA even attended the 2008 SEMA show and stated directly and clearly to the industry that 1) it is illegal to sell disconnect devices even if they are installed on motor vehicles used solely for racing, and 2) by checking the box, consumers are declaring that they will use only in competition does not relieve the manufacturer of this violation of the Air Act.
The industry has repeatedly tried to devise an exemption for racing, which does not exist (at least not yet).
No, the EPA will not come for your race car
EPA has clarified that tampering with motor vehicle emission devices is prohibited. But they’ve also made it clear they’re not interested in going after individuals on the track — instead, they’re going after bad actors in the industry:
“Our push to focus on aftermarket disconnect devices has led some to believe that the EPA is trying to stop the tradition of converting EPA-certified motor vehicles into vehicles that are used exclusively for competitive motorsports. It is not so. EPA has never taken, and does not intend to take, enforcement action against vehicle owners for removing or canceling the emissions controls of an EPA-certified motor vehicle for the purpose of permanently converting it to a vehicle used exclusively for competitive motorsports. —Susan Bodine, EPA, to Senator Jack Reed (March 2020)
It should be noted that it is also possible to modify a vehicle for racing without interfering with its emissions equipment and/or increasing its emissions. In fact, the California Air Resources Board (CARB) has certified a number of products that significantly increase horsepower and other performance characteristics that might be desirable on the track while meeting the vehicle’s original pollution limits, and the EPA does not consider the use of such products to be tampering.
The EPA is not trying to stop racing, but simply an industry based on manipulating emissions controls and harming public health through road use.
Industry does not solve the problem, it creates it
As I stated in my earlier blog, the RPM Act opens a loophole wide enough to drive coal shipping through. It’s not just about creating an exemption from the Clean Air Act for racing, it’s about creating a path to freedom from a multi-billion dollar industry that relies on illegal exploitation for a significant portion of its revenue. Its own figures show that just 2 per cent of its customers’ vehicles are dedicated race cars – trying to protect the other 98 per cent of its business that shares the road with you and me.
In its filings, RESC argued, as did SEMA in the case of the Gear Box Z, that “converting” to a race car meant that the motor vehicle was no longer a motor vehicle. The problem with this notion is that in the Clean Air Act…for motor vehicles, there is absolutely no process or permit for such a conversion. But that exact process exists for off-road vehicles that have a competitive exemption under the Air Pollution Control Act. In fact, EPA finalized a rule in 2002 that allowed the conversion.
To convert an off-road motorcycle into a competition vehicle, the vehicle must be decertified — meaning it cannot be registered as a recreational vehicle and can ONLY be used on the racetrack. This also applies to imported racing vehicles, which require documentation of the vehicle’s capabilities and disqualification from safe road operation. These narrow exemptions help ensure that such vehicles are used where necessary to meet the required limit of the competition exemption – on the track.
If SEMA were serious about their interest in racers, the RPM law would be a narrowly tailored law that would require a motor vehicle to be decertified as part of a “conversion” to a race car, thereby eliminating any potential concerns about using the vehicle on public communications. . Such a bill could be a reasonable response to the racing industry if they need legislative assurance in accordance with current EPA enforcement procedures, and requiring any racing vehicle to be decertified would also allow suppliers and installers to easily verify that a vehicle (through its the vehicle identification number or VIN) to which the part is to be fitted is actually a racing vehicle.
Unfortunately, this common-sense route to narrowly amending the Clean Air Act was rejected by SEMA—in fact, the latest version of the RPM bill introduced to the Senate last year expressly prohibits any such process.
The reason is obvious: SEMA simply has no interest in limiting sales of disconnect devices to a small segment of the hobbyist market. Instead, they’re trying to use sympathy for that niche market to open a loophole to allow for the much larger number of illegal sales that SEMA companies currently handle. Too many people in the industry are interested in selling these pollution-enabling devices to anyone who will pay, and SEMA doesn’t care one bit if it hurts the environment or not. They focus on a different kind of green, public health and well-being.
Originally published by the Union of Concerned Scientists, The Equation.
By Dave Cooke, Senior Vehicle Analyst
Featured image of Andreas Lischka from Pixabay.
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