Volkswagen has yet to be prosecuted federally for its crimes in Canada and we are all losing out over its inaction

Around the world as many as 11 million vehicles, equipped with emission-cheating software, were sold to unsuspecting costumers.

It happened in Canada too.

An estimated 105,000 Volkswagen, Audi and Porsche vehicles equipped with the illegal emissions-cheating software were imported and sold in Canada. These cars are capable of emitting up to 35 times the legal level of nitrogen oxides — known to impact the respiratory systems of humans and animals, and damage vegetation — into the air.

Volkswagen put the health of Canadians at risk, but the federal government has kept mum on what it plans to do to hold the company to account for its actions despite being able to piggy-back off the successful prosecution in the United States.

Nearly three years ago, Volkswagen plead guilty for its crimes and agreed to voluntarily pay a USD $15 billion settlement — something made possible thanks to testing done in Canada. The fact that the enforcement of this settlement is being done under a climate-denying president like Trump and sidestepped by Minister McKenna should be seen as an embarrassment by a Liberal government that says it is on the side of the environment and protecting human health.

More than a year ago, the Ecojustice team started working with Tim Gray and Muhannad Malas of Environmental Defence and Kim Perrotta of the Canadian Association of Physicians for the Environment (CAPE) to file a lawsuit challenging Minister of Environment and Climate Change Catherine McKenna’s refusal to proceed with an investigation into Volkswagen’s actions under the Canadian Environmental Protection Act (CEPA).

Throughout the life of this case, we’ve hit a few roadblocks, but none quite as vexing as gaining access to files documenting the government’s ongoing federal investigation — which as far as we can tell, has yet to yield any results.

Just three days before Monday’s court appearance we received one of the “secret” documents we’ve been fighting to gain access to. This document shows that Environment and Climate Change Canada has been actively trying to prevent our clients from going to court and taking steps to enforce the law against Volkswagen under section 22 of CEPA — proving they’ve been hiding something all along.

The document includes an admission that the ministry is required to open investigation and keep our clients in the loop regarding its progress. If that wasn’t enough, one of the most damning sections in the formerly secret document reveals a dark and unusual concern by the government, fearing that if they open an investigation  and our clients are not satisfied with the rigour of the results, our clients may take Volkswagen to court to further hold the company to account for its actions.

This makes us wonder: with no job force incentives (Volkswagen does not have a single factory in Canada), why does the government care whether we decide to bring a case against the company directly?

We think the government is still not telling us the extent of the information it knows about Volkswagen. And we’re prepared to continue to fight to find out what they’ve learned.

That’s why we are once again in court to ask the Ministry of Environment and Climate Change what it is trying to hide by not letting citizens have access to documents that should be public and could ensure Volkswagen is made to pay the price in Canada.

The United States’ environment has benefitted greatly from swift action by its government. Part of its multi-billion dollar settlement is being used to mitigate pollution and build infrastructure for zero-emission vehicles.

We could be doing the same here in Canada if government was quicker to act.

Here’s a taste of what we’re missing out on — thanks to our federal government’s inaction.

States with plans

As part of its court settlement at the national level in the United States, Volkswagen was required to pay USD $2.8 billion to states to be used to reduce diesel pollution. The money was doled out based on how many Volkswagen vehicles with emission-cheating software were registered within state lines. Many states are now in the process of drafting plans for how best to spend these funds.

As one of the most densely populated states, California received the bulk of the payout — estimated at USD $422.6 million.  

California officials estimate that the Volkswagen’s emissions-cheating vehicles added an extra 10,000 tonnes of noxious nitrogen oxide to California’s already extremely polluted air. To try and mitigate harm from the increase in deadly smog-causing pollutants, California decide to spend most of its money on replacing heavy-duty trucks buses with zero-emission models. The state also invested in electric-vehicle changing stations.

Minnesota, which received $47 million, plans to spend the money on grants to replace diesel school buses, ferries, tug boats and other heavy-duty vehicles.

Southern states are also on tap to receive some money from the settlement. Georgia in particular has already announced plans to spend money on a new fleet of electric buses and charging stations. Meanwhile, Virginia plans to build an extensive network of electric vehicle charging stations — which could end up incentivizing the sale of more electric cars in the state.

The settlements paid out in the United States aren’t just helping individual states either, they’re also helping to pique the appetites of companies to participate in clean-vehicle technologies, like expanding electric vehicle charging networks. This boost in funding could be the push needed to encourage investors to fund more stations and signal to consumers that buying electric vehicles is a viable option for them.

Some states are also seeing this as an opportunity to outline plans to better serve vulnerable communities, with the understanding that regardless of who they are or where they live, it is important to make clean transportation accessible to everyone.

Take Pennsylvania’s plan as an example. In addition to funding projects to retrofit diesel-burning locomotives, marine engines and other equipment that pollutes the air, this state is choosing to focus on densely populated areas — including Philadelphia and Pittsburgh — where vulnerable neighborhoods are often disproportionately impacted by air pollution.

And the list of states trying to make positive change as a result of a bad situation, goes on. While there is no mandatory way each state must spend their allotment, there seems to be a common thread among the ones with proposals and set plans: Find ways to lessen the harm that Volkswagen caused to the air communities breathe. There’s no changing what Volkswagen did but the funds will help improve air quality and protect public health in the future.   

Federal spending

As part of the settlement, Volkswagen must also create a National Zero Emission Vehicle (ZEV) Investment Plan and spend $2 billion on ZEV infrastructure and programs, including neutral media activities aimed at increasing public awareness of zero-emission vehicles. Of that total, USD $300 million is allocated towards the installation of electric vehicle charging stations.

Given that there were more than 100, 000 emissions-cheating vehicles sold in Canada, it is estimated that we could benefit from CAD $105 billion in fines under CEPA — the minimum penalty under the Act is CAD $1 million per penalty. This money could be used to help provinces meet air quality standards and help push forward the adoption of low and zero-emissions vehicles across Canada. Money could be given to each of the provinces to fund similar programs that are underway in the United States.

It seems ironic that under President Trump’s government — which has been notoriously anti-environment — Volkswagen’s cash settlement is being used to mitigate environmental damage while our government continues to claim it is on the side of the environment, but is buying billion dollar pipelines and letting foreign companies get away with crimes against Canadians.

Volkswagen broke the law and it is individuals, communities, and the environment that has been forced to bear the brunt of harm from its actions. But it doesn’t have to end on this note. The federal government does have options.

When VW plead guilty in the United States, its settlement agreement included a clause that prevents the company from walking back on any part of its confessions, anytime or anywhere. This also makes any effort by Canada to prosecute the company a veritable cake-walk.  That Canada still refuses to take action is why we are taking them to court.

We want to know why the government continues to drag its feet and why it is actively trying to withhold documents and information regarding the status of its investigation into Volkswagen’s crimes. It is high time the company pays the price for what it has done to the air you and I breathe.

Same story, two very different messages

The United States got this one right.

When Volkswagen lied and cheated Americans, their government took swift, decisive action that said more than words ever could. It sent a clear message to companies — both domestic and foreign — that if they were to scam American citizens and put their health in jeopardy, they would face consequences.

Canada’s government needs to start thinking about what message it wants to be sending to companies.

Is Canada open to polluters for business? Or will our federal government refuse to tolerate companies that break our laws and endanger our communities?

Both choices are on the table. We’ll be pushing for it to choose the latter.