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Dieselgate: How consumer law can help protect the environment

Boz Michalowska-Howells and Jessica Derwent discuss how consumer law can be a force for good when it comes to protecting the environment.

Posted on 22 July 2020

Many people have questioned the role of consumers in the fight against climate change, with some arguing consumer choices are simply transient and won’t materialize into lasting changes. But the evidence suggests otherwise. The rise of veganism has had supermarkets reporting rocketing sales of non-meat products. The power of consumers to drive change is the case I wish to advocate for when it comes to car emissions and climate change.
Many view consumer law itself as a co-conspirator in the environmental crisis. Indeed, the paramount goals of consumer law are to protect the consumer, who is in essence engaging in consumption, which is a problem when it comes to the environment. However, consumer law can be environmentally constructive in the fight against corporations flouting green promises, as Dieselgate has demonstrated.
If consumer choices for greener cars are defended by the law then the car industry is forced to take the environmental impact of their cars seriously. The ongoing international litigation against Volkswagen (VW), and the current investigation into Mercedes/Daimler, in respect of the emission of NOx emissions demonstrate that consumers care, and deserve, the lower emission vehicles they thought they were buying.
Car manufacturers cashing in on the consumer desire for greener cars without delivering on their promises of effective emissions technology is not only dishonest but also exploitive of consumers’ genuine growing appetite for more sustainable choices. Just as consumer habits have the power to make change for a greener planet, consumer law cases go hand in hand with the work of environmental campaigners and advocates of environment legal reform. Consumer law should be seen as a friend of environmental law, not a foe.
Litigation in the wake of Dieselgate attempts to rebalance the injustice of this unfairness and compensate consumers for being sold a high emission car masquerading as a low emission car. Consumer law claims hold car manufacturers accountable for misleading their customers, as well as drawing the attention of governments and nations to the importance of emissions on the environment and public health.
The emission of Nitrogen Oxides (NOx), a greenhouse gas emitted by diesel engines, which contributes to smog and acid rain, are not only harmful to the ozone layer but are also detrimental to public health. It is estimated that annually 10,000 people die prematurely across Europe due to diesel cars and half of these deaths are caused by emissions exceeding the EU limits.
Despite these groundbreaking lawsuits, many environmentalists are not entirely satisfied. They argue companies who cheat emissions tests should face a harsher punishment – that of ecocide.

Ecocide is defined as ‘the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.’

Ecocide is not yet recognised by the United Nations as a crime. However  Dieselgate has a dual injustice. Firstly that of consumers’ deception and secondly the harm done to the planet by the release of NOx gases.
In the United States VW was found guilty of a crime and fined a record $2.8 billion dollars[3], some of which was portioned towards the environmental impact of NOx gases. Perhaps an example the UK and the EU should follow.
Of course it would be naive to think the huge environmental challenges the world is facing can solely be addressed by law, rather a combination of economic, scientifically informed government policy, and behavioural changes are necessary.
In light of the looming environmental crisis lawmakers need to revaluate exactly what a ‘consumer’ is, and in what ways this converges and differs with a ‘citizen’ and what the role and responsibility of consumer law ought to be in a time when we face unprecedented environmental change.
However, there is a crucial need for the legal environmental community to acknowledge how powerful green consumer choices can be and to consider the positive precedent these consumer law claims will create for car manufacturers, and more broadly the whole commercial sector, in the future.
In the words of the late Polly Higgins, a barrister who devoted her life’s work campaigning to make ecocide a crime and environmental legal reform, “The Earth is in need of a good lawyer”