It is well known to those in the aftermarket auto parts industry that the EPA in recent years has stepped up its enforcement efforts related to the Clean Air Act (CAA), particularly the manufacture or sale of motor vehicle parts known as defeat devices. Defeat devices include hardware, software or design that has the potential to disable, modify or bypass a motor vehicle’s emission control system. According to the EPA, examples include electronic tunes or tuning devices that disable filters, catalysts and EGR systems, exhaust manifolds, delete pipes, oxygen sensors, or other products designed to improve the performance of a car while also defeating certain emission controls.
Section 2036 of the CAA (42 USC § 7522(a)(3)) prohibits, among other things, the manufacture, sale, or installation of any motor vehicle part or component where a principal effect of the part or component is to bypass, defeat, or render inoperative (commonly referred to as “tampering”) any emissions control device or element of design installed on or in a motor vehicle or motor vehicle engine. Under the CAA, a motor vehicle is defined as a “self-propelled vehicle designed for transporting persons or property on a street or highway.” However, this statutory language has not been interpreted by any court as prohibiting modifications to on-road motor vehicles in order to convert them to vehicles for competition-race use only because racing vehicles, as modified, are no longer designed for street or highway use. It is widely understood that modifications to dedicated, purpose-built racing vehicles and engines that are not used on the street or highway are not prohibited under the statute.
A company that manufactures or sells an aftermarket part that is intended and designed for use on the racetrack only should therefore not be subjected to fines or penalties if a customer improperly uses that part on his or her motor vehicle. The EPA does not agree. Not only can a manufacturer or seller of aftermarket parts face penalties if the end user improperly uses the part, but the manufacturer or seller can be fined even if the part is never used at all.
According to a recent decision by an EPA administrator In the Matter of Borla Performance Industries, Inc., aftermarket parts which have the potential to impact emissions are equivalent to “illegal drugs.” It does not matter whether the parts are used or not. The mere offer for sale of a part subjects the alleged violator to significant penalties even if that part is installed on a vehicle that has never been driven on a street or highway or is sitting on a shelf or in the back of a closet. According to the EPA, it is up to the manufacturer or seller to prove that its products were never used on a street or highway—a near impossible task for even the most diligent record keepers. This would appear to run afoul of the fundamental principle of law requires that the party bringing claims against another prove their case. Indeed, aftermarket auto parts have never been declared “illegal” by Congress or any other governmental body
Most sellers and manufacturers are in the business because they have a passion for racing and simply want to comply with the law as it is written. That has become difficult as the EPA’s interpretation of the 50-year old CAA has morphed and evolved without legislative modification. In 2021, the Recognizing the Protection of Motorsports (RPM) Act was drafted in an effort to clarify the CAA and ensure that racers can continue to modify street vehicles into race cars used exclusively in competition, and that businesses can continue to produce, market, and install racing equipment. In 2023, the RPM Act stalled in Congress for what appears to be the final time after four attempts at passage and despite bi-partisan support. Consequently, the EPA’s interpretation of the CAA will continue to be a moving target unless and until guidance is issued.