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Legal Battle in Germany Leaves Diesel in the Dust

German court empowers cities to ban diesel vehicles due to dangerous health effects

In 2009, Volkswagen launched an aggressive advertising campaign in the US under the banner of "clean diesel," presenting its new range of diesel cars as an eco-conscious choice that offered "efficiency without compromise." This strategy for selling diesel vehicles was new to the US but had already succeeded in Europe. Ever since the Kyoto Protocol was signed in 1997, European governments and car manufacturers have collaborated to promote diesel as a sustainable alternative to gasoline.

photo of VW in EuropePhoto by Dave Pinter The ruling may prove historic for the European environmental movement because despite public outcry over the Volkswagen "clean diesel" car scandal, European governments have been extremely reluctant to act against car manufacturers.

German manufacturers lobbied the EU to support the technology, arguing that diesel, which produces 15 percent less CO2 than petrol, provides an affordable and efficient means to lowering greenhouse gas emissions. Most EU governments readily agreed, implementing subsidies and tax breaks to keep diesel cheaper than petrol. As a result, the production of diesel vehicles has skyrocketed over the last 20 years. There are 15 million diesel cars in Germany today — representing more than 30 percent of all vehicles on the nation's roads — and similar figures can be cited for the other EU countries.

The evidence is now clear, however, that "clean diesel" is nothing but an oxymoron. Despite its promotion by the auto industry as an eco-friendly fuel, diesel has led to extreme levels of air pollution across most European cities. Diesel cars may produce less CO2 than those run on petrol, but they release more than four times as many nitrogen oxides (NOx) — dangerous gases that produce smog and aggravate or induce a variety of health conditions, ranging from asthma, emphysema, and bronchitis to stunting in children and strokes. In Germany alone, NOx pollution causes an estimated 6,000 to 13,000 premature deaths per year.

On February 27, a date that may prove historic in the European environmental movement, the highest administrative court in Germany ruled that cities have a right to ban the use of diesel vehicles. The court determined that citizens' rights to a healthy environment trump the rights of car manufacturers, upholding prior bans enacted by local courts.

The scale of the diesel crisis in Europe was obscured for many years. But in 2015, diesel-related health costs were dramatically exposed when a US investigation revealed that Volkswagen’s diesel cars had only been deemed safe because of systematic fraud. The investigation showed that the company had secretly installed so-called "defeat devices" in more than 11 million cars worldwide, enabling vehicles to meet regulatory emissions standards during testing but then to release more than 40 times more NOx during real-world use.

Although this degree of brazen criminality was particularly shocking, the routine failure of emissions tests to detect pollution levels became quickly apparent. The scandal caused international outrage and exploded feel-good myths surrounding diesel. Millions of Europeans were incensed to learn that cars marketed as sustainable had condemned most major cities on the continent to dangerous levels of pollution.

Despite public outcry, European governments have been extremely reluctant to act against car manufacturers. Volkswagen released 500,000 diesel cars in breach of safety standards in the US versus 5.2 million in Germany — yet while US courts forced Volkswagen to pay $25 billion in fines and handed prison sentences to certain prominent individuals, no prosecutions have been made in Germany.

Far from levying fines, in fact, the German government reached a sordid compromise with automakers designed to protect the industry. After a much-publicized "diesel summit" with industry executives in 2017, government advisers announced that hardware upgrades — designed to bring compromised cars in line with safety regulations — should be paid for "entirely or to the greatest possible proportion" by the German state, passing the bill for Volkswagen’s fraud to the German taxpayer. Meanwhile, measures to address the broader problem of endemic air pollution were entirely rejected.

Close ties between the German government and the automotive industry are well-established, with German cars having long been the most visible symbol of the industrial strength and technical sophistication of Europe’s leading economy. Indeed, the German automotive industry is one of the largest employers in the world and produces more than one-third of all cars in Europe. The 2017 diesel summit was intended to restore faith in this strategic industry — to reassure customers both at home and abroad that German cars could still be relied upon, and that the diesel engine, long-hailed as a triumph of German engineering, could still be made clean and represent a fuel of the future. The summit was also devised to placate public anger while averting any real structural reforms.

February's ruling was the culmination of years of activism and legal action. The case began in 2015, just as the emissions scandal was breaking in the US, when the small environmental nonprofit Deutsche Unwelthilfe (German Environmental Aid) sued the German cities of Stuttgart and Dusseldorf, arguing that municipal authorities were obligated to ensure that EU clean air standards were being met. These standards are hardly radical — since 2010, the EU has mandated that NOx should not reach "unsafe" levels more than 35 days per year — yet, 70 German cities regularly exceed this relatively tame limit. In the worst offending cities, like Stuttgart, the average level of NOx is almost double the EU's safety standard. With increasingly stringent EU clean air legislation being simply ignored, Deutsche Unwelthilfe demanded that cities actually enforce the law by banning diesel vehicles if necessary.

These local court cases were only the latest in a series of struggles. Since 2005, environmental activists had focused on municipal authorities and fought several cases to demand local action against air pollution. Their efforts were met with many defeats, but the strategy finally succeeded in Stuttgart and Dusseldorf. In 2016, in the wake of the emissions scandal and amid growing public anger against car manufacturers, the local courts ruled that cities in which air pollution exceeds EU limits have the right to ban diesel cars. They called upon both Stuttgart and Dusseldorf to implement such a ban.

The idea that EU clean air law should actually be enforced was naturally intolerable to the political establishment. The states of Baden-Wurttemberg and North-Rhine Westphalia (where Stuttgart and Dusseldorf are respectively located) promptly appealed the decision to the higher courts, with wholehearted support from the federal government. Germany thus witnessed the strange spectacle of governing authorities at municipal, state, and federal levels fighting an intense and lengthy court battle to limit their own powers, investing considerable energy to defend their inertia.

The February ruling decisively defeated these authorities. In cities where air pollution exceeds EU limits, municipalities can now ban all diesel vehicles except those allowed by the most recent EU emissions legislation — meaning that 10 million of the 15 million diesel cars in Germany can be legally banned by city governments, and that decades of government support for the auto industry could now be swept aside.

Hamburg recently became the first German city to make use of the ruling, announcing that it will soon introduce a diesel ban. Stuttgart and Dusseldorf are likely to swiftly follow suit, and many other cities may soon begin to consider bans, too. The mere fact that cities now have a right to introduce bans has already caused a fall in the value of diesel cars, with potentially dramatic consequences. Shortly after the ruling, for example, Toyota declared that it will be terminating diesel sales in Europe. The German federal government, terrified of widespread bans, has already been pressured into proclaiming a billion dollar increase in funding for public transport. Some state governments are considering free public transport to reduce NOx levels.

The political fallout from this case extends far beyond Germany. The court's ruling creates a crucial legal precedent that can be exploited by environmental activists throughout Europe, and has damaged the public standing and economic strength of the auto industry in its heartland. The effects of the ruling are already being felt across the continent. The day after the court made its decision, Rome announced plans to ban diesel cars from 2024 onwards. Copenhagen may implement a ban as early as next year. Several commentators have suggested that German bans could represent a "Fukushima moment" for diesel.

The rise and fall of diesel is cautionary tale. Governments promoted diesel because it appeared to offer a quick technological fix to the environmental crisis — an easy way to address global warming. For the German government in particular, environmental concerns seemed to coincide nicely with the traditional aim of promoting the automotive industry. The comprehensive failure of this model powerfully illustrates the need for an environmentalism ready to challenge vested economic interests and make bold changes to social organization.

We must not seek to replace diesel cars with only slightly more environmentally friendly alternatives, but must challenge the centrality of the car itself. Luckily, there is a growing European environmental movement to develop genuinely sustainable transportation. In many German cities, calls for driving bans are being coupled with demands for more walkways for pedestrians, free public transport, and the redesign of urban spaces. If this movement grows, diesel bans may well be a powerful tool for developing a genuinely sustainable future.

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