Jordan Candler / Sep. 30, 2015

Will VW Avoid Criminal Charges?

The company may dodge a bullet.

Volkswagen recently admitted to intentionally deceiving consumers and the Environmental Protection Agency for six years by circumventing emissions standards. The question now is what — or, quite remarkably, if — criminal charges will be levied against the company by the Department of Justice. In a surprising twist, it turns out Volkswagen may dodge a bullet thanks ironically to the decades-old Clean Air Act. The Wall Street Journal explains: “Despite the scale of Volkswagen’s behavior … the German auto maker may not face an environmental crime charge here, legal experts say. … While refineries and other types of major polluters are criminally liable under the Clean Air Act for emissions beyond legal limits, the section of the law that deals with automobiles specifically leaves out any similar provision.” Two Democrats are calling for criminal charges anyway, as well as what Sen. Richard Blumenthal called “legislation to close the loophole.”  However, the Constitution prohibits bills of attainder — laws meant to punish specific people or companies — and Congress can’t pass a law now and then sic the DOJ on VW for it. So it depends on what Blumenthal means by closing the loophole. On the other hand, since when do Democrats put Rule of Law first and foremost? All this isn’t to say Volkswagen is out of the woods — civil fines will likely accumulate into billions of dollars — nor is it to excuse its behavior. But how odd it would be if Congress engages in its own constitutional negligence to punish another type of negligence that, regardless of the ethics, technically isn’t criminal. If there’s an exemption in the law, it is what it is.

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