Harris County Attorney Vince Ryan today praised a federal court ruling that affirmed the right of state and local governments to sue Volkswagen over tampering with emissions devices on their vehicles after they were sold.

Harris County was the first governmental entity in Texas to file a suit against Volkswagen after it was revealed that the German auto manufacturer had tampered with emissions control systems on their diesel-powered vehicles so that the devices showed the vehicles complied with clean air requirements when they did not.

Ryan is seeking civil penalties against Volkswagen for the estimated 2,000 Harris County vehicles tampered with after they were sold.

After Harris County and many other state and local governments sued Volkswagen, the company claimed in court that the Clean Air Act gave the federal government sole discretion to enforce laws tampering with emission control devices. A lower federal court agreed with the company. However, the 9th Circuit U.S. Court of Appeals in California this week ruled that while federal law covers tampering on cars before they are sold, it does not prohibit local governments from enforcing local regulations on vehicles that were tampered with after they had been sold. This ruling tracked the position taken by Harris County, which presented its views to the Ninth Circuit as a “friend of the court.”

“We applaud this ruling recognizing the role local governments play in enforcing local laws to protect our residents,” said County Attorney Ryan. “Harris County, with its massive traffic and petrochemical industry, has had difficulty in meeting federal clean air requirements. Volkswagen’s deceitful acts have damaged the county’s ability to improve air quality, reach clean air attainment status and protect our citizens.”

“This opinion reaffirms the rights of state and local authorities, such as Harris County, to enforce penalties for post-sale tampering with automobile emission control devices and to proceed against Volkswagen for its unlawful conduct,” said nationally prominent Houston attorney Richard Mithoff. Mithoff was retained in 2015 by Harris County to lead a team of local lawyers in representing Harris County, including Russell Post, Earnest Wotring and Bennie Agosto.

The 9th Circuit Court acknowledged that its ruling “…may result in the imposition of unexpected (and enormous) liability on Volkswagen. But that result is caused by the unusual and perhaps unprecedented situation before us. In drafting the Clean Air Act, Congress apparently did not contemplate that a manufacturer would intentionally tamper with the emission control systems of its vehicles after sale in order to improve the functioning of a device intended to deceive the regulators.”

The Court explained that Volkswagen realized that some of its diesel engine vehicles would not be able to meet heightened clean air standards while still operating at a performance level that could attract customers. “Therefore, beginning in 2006, Volkswagen employees developed and installed two defeat devices that would enable its diesel engine vehicles to pass federal emission tests, even though the vehicles could not actually meet” those standards while being driven on the street.

However, some customers began reporting operating problems with the vehicles that were, unknown to them, caused by the tampered emission systems. So Volkswagen issued a “recall” that not only repaired the operational problems but also installed software devices to the emissions systems that did not affect the operation of the vehicle but still gave false readings showing the cars were in compliance with the Clean Air Act.

It is this post-sale recall tampering that allowed these vehicles to continue polluting and that the 9th Circuit Court ruled local governments can move forward seeking penalties on.

“We intend to request a trial setting as soon as practical,” Mithoff said.

“Volkswagen’s illegal tampering, occurred after the vehicles left the showroom and under the guise of fixing a problem brought unsuspecting buyers back into the dealership,” said County Attorney Ryan. “It only makes sense that the jurisdictions where this tampering took place and which were home to the communities that suffered from the resulting pollution should be able to hold VW accountable.”