Gaming Out the VW Affair from the Oval Office

Imagine you were the President of the United States. (Sure, that’s daunting, but remember you’re more qualified for the job than about 90% of the people now running for it.)

You just found out that all the Volkswagen diesels sold in the U.S. over the past six years are in massive violation of pollution-control standards, and that the resulting excess emissions have caused, and will continued to cause, deaths and injuries. Apparently, in order to get those models past emissions certification without sacrificing mileage or performance, VW installed an elaborate software patch on the computer that runs the engine.

The program cleverly detects whether the car is being emissions-tested (apparently a testing machine isn’t much like an actual driver) and, if it is, turns on the emission controls. Once the test is done, the program notices that, too, and turns them back off. So the car-on-the-test-treadmill looks legal, but the car-on-the-road is grossly illegal.

GM, Ford, and Honda have all been caught before playing similar tricks; so had VW. There’s even a term of art for them: “defeat devices,” because they’re designed to defeat emissions tests. And Bosch – which supplied the code to VW, supposedly to be used only in testing rather than actual operations – also supplies several other automakers, so there may be other recent-model cars with the same problem.

Even after the cheating had been detected by some very clever engineers at West Virginia University, VW officials kept denying that there was anything amiss until the EPA threatened not to certify its 2016 models. Then the company changed its tune. (Note that if the people making those denials knew them to be false, they may have serious personal criminal liability; 18 U.S.C. 1001 (a) provides, in relevant part:

[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry shall be fined under this title, imprisoned not more than 5 years …or both.

In that situation, Mr. (or Madam) President,what should you be trying to accomplish, and how should you go about it?

I submit that your goals should be:

1. Getting the cars off the road – or fixed, if that turns out to be possible – sooner rather than later. The death rate is unknown, but a month’s delay will, more likely than not, kill at least one person.
2. Identifying whether there are similarly gimmicked non-VW cars on the road, and deal with them as well. Again, time is of the essence.
3. Ensure that justice is done with respect to VW as an enterprise and the VW officials who engaged in this conspiracy. Of course legal guilt or innocence remains to be determined in each case, but there’s no doubt there was a conspiracy to cheat the testing process; VW has now admitted what was done, though of course the company is trying to blame a “small group” of engineers. Doing justice is not merely a matter of revenge; this is your best opportunity in years to establish the principle that deliberately planned regulatory violations that cost lives can have drastic consequences for firms and individuals.
4. The decision whether VW stays in business is now up to you and people who work for you. There’s a case for corporate capital punishment. But there’s also a case for using the leverage this case gives the government to force VW to spend company money on environmental improvement. That needn’t involve VW’s own operations. To choose an example not quite at random: pollution from new cars – even faux clean diesels – is trivial compared to pollution from old cars. The problem with a systematic “cash for clunkers” program is that it encourages people to keep their clunkers rolling until a buyback comes alone. It’s also hard to get Congress to come up with the money. But a buyback paid for by VW as part of a settlement of the criminal and civil cases against it would – precisely because it was unpredictable and unlikely to be repeated – pose no such problem. Buying and scrapping a million old cars at $1000 a copy might be an excellent way of spending $1 billion that the Congress never has to appropriate, and it would almost certainly turn the whole event into a net plus from the perspective of morbidity and mortality, even given the inevitable fact that some of those cars would have been headed for the scrapheap anyway.

All of those purposes are served by promptly gathering information about who did what at VW and elsewhere. No doubt folks at EPA and at various universities are feverishly inventing tests to detect defeat devices, so it’s likely we’ll eventually learn about most of the schemes that have been put into practice recently at any substantial scale. That still leaves the problem of detecting older or smaller schemes, and the further problem of determining which individuals at the offending firms were responsible.

You could speed that process enormously by instructing the Justice Department to open a criminal investigation into conspiracies to install defeat devices.  Again, you’d need to be careful to make it clear that you weren’t imputing criminal liability to any specific individual or firm, but it would be well within your legitimate function to say, or have your Attorney General say, something like this:

On the facts as reported, it seems more than likely that criminal laws have been violated, and at least possible that they have been violated by more than one manufacturer, with regard to “defeat devices” designed to evade pollution controls. People have gotten sick and died, and others are getting sick and dying right now, because of the excess pollution that was deliberately and illegally emitted. These are not “regulatory violations” in the sense that someone forgot to file the right paperwork; this was a deliberate scheme to put toxins into the air we breathe and to conceal that fact.

Starting this week, Federal agents will be asking automobile manufacturers and their employees for information about defeat devices and other attempts to cheat the emissions-testing process. For now, those requests for information will be voluntary; no one is obliged to answer. But everyone involved should also know that making a false statement to a federal official in such a situation is a felony.

It also seems very likely that eventually one or more grand juries will be empaneled and subpoenas issued. Again of course, everyone involved has the right to assert the Constitutional privilege against self-incrimination and refuse to answer questions that might lead to his own prosecution. As in any such investigation, those who come forward early and make a clean breast of things are likely to wind up facing less serious consequences than those who wait to be called.

To facilitate the process, we have established a hotline, 1-800-DEFEAT-D. People who call that number have the option of giving their own names or remaining anonymous. Of course, those who think they may be facing personal criminal liability should consult an attorney first.

We need to find any other cars that have similar gimmicks and get them fixed, or off the road, as soon as possible. Every mile driven by any of those cars makes this country just that much less healthy to live in.

The truth is going to come out eventually. I appeal to anyone who can help it come out faster to call that hotline.

Footnote

So far as I can tell, of the eleventeen people currently running for President, only Hillary Clinton has made a statement on the issue; hers was forceful but brief. There’s no sign of any legislative action.  The contrast with the phony Planned Parenthood scandal couldn’t be stronger.

 

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.