09 September 20
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The Electoral College Will Destroy America
Jesse Wegman, The New York Times
Wegman writes: "I still cannot fathom why, in a representative democracy based on the principle that all votes are equal, the person who wins the most votes can - and does, repeatedly - lose the most consequential election in the land."
ast week, Nate Silver, the polling analyst, tweeted a chart illustrating the chances that Joe Biden would become president if he wins the most votes in November.
The “if” is probably unnecessary. It’s hard to find anyone who disputes that Mr. Biden will win the most votes. This isn’t a liberal’s fantasy. In a recent panel discussion among four veteran Republican campaign managers, one acknowledged, “We’re going to lose the popular vote.” Another responded, “Oh, that’s a given.” The real question is will Mr. Biden win enough more votes than President Trump to overcome this year’s bias in the Electoral College.
Mr. Silver’s analysis is bracing. If Mr. Biden wins by five percentage points or more — if he beats Donald Trump by more than seven million votes — he’s a virtual shoo-in. If he wins 4.5 million more votes than the president? He’s still got a three-in-four chance to be president.
A 'Save U.S. Postal Service' rally in front of the U.S. Post Office in Santa Ana, California. (photo: Irfan Khan/Getty)
The Latest on Republican Efforts to Make It Harder to Vote
Perry Bacon Jr., FiveThirtyEight
Bacon writes: "Here's an update on Republican efforts to complicate the voting process and oppose moves that would make it easier."
bout a month ago, we laid out five ways that Republicans are making it harder to vote and more generally undermining the electoral process in 2020. We focused on Republicans for two reasons. First, making it harder to vote is a more controversial and anti-democratic goal than making it easier to vote, as Democrats are aiming to do. And second, President Trump is playing a central role in these voting wars. Trump has publicly said that he is opposed to efforts in many states to make absentee voting and voting by mail (the two are functionally the same thing) available to virtually anyone who wants to vote that way. He has also suggested that higher overall voter turnout would make it harder for Republicans to win elections.Over the last month, with the election approaching, Republican officials — from county-level election administrators to the president himself — have in some ways escalated their use of these tactics. So here’s an update on those efforts to complicate the voting process and oppose moves that would make it easier. These five categories, which we used in the last article, are generally ordered from least alarming to most alarming. (There is no formal system tracking every lawsuit concerning voting and the electoral process in all 50 states, so this article is based on our informal tracking, which means we might have missed a key development in a state or two.) Here’s what’s happening:
1. Opposing changes to make it easier to vote amid COVID-19
- Opposing or limiting the use of ballot drop boxes. Recent U.S. Postal Service changes enacted by Postmaster General Louis DeJoy, a GOP megadonor, have slowed down mail delivery and likely increased the potential that some mail-in ballots will get to elections offices too late to be counted. (In most states, mail-in ballots must be received by Election Day.)
In response, to make sure that people don’t have to vote in person and to ensure that their ballots are received in time, Democrats have been pushing states and localities to expand the number of secure boxes where people can drop off their ballots so they can be picked up later by election officials. Republicans, though, are also opposing these drop boxes. In Ohio, the Republican secretary of state is blocking any county from having more than one ballot drop-off location — even though it would obviously make sense for counties with larger populations to have more than one. In Iowa, the Republican secretary of state is allowing such boxes only at government-owned buildings (as opposed to, say, outside grocery stores). Missouri, another GOP-dominated state, is barring the use of any drop boxes. - Opposing moves to make it easier to vote by mail. The GOP-controlled board of commissioners in Gwinnett County, Georgia (that’s suburban Atlanta), rejected a proposal to have applications for absentee ballots sent to all registered voters in the county. In Arizona, the Trump campaign is opposing a push to count any ballot that is postmarked by Election Day (as opposed to received by Election Day).
- Limiting the use of NBA arenas as voting centers. After their brief strike in the days after the shooting of Jacob Blake in Kenosha, Wisconsin, NBA players successfully pushed the league to authorize using its arenas as voting centers. But despite owners offering the space to local governments, election officials in Miami (Florida) and Memphis (Tennessee) have opted against using those arenas. (Miami has a Republican mayor; the elections procedures in Shelby County, which includes Memphis, are set by a board whose members are appointed by the state’s GOP-controlled legislature.)
- Opposing early processing of absentee ballots. In Michigan, Republican lawmakers so far aren’t pushing forward proposed legislation to allow elections officials to start processing mail-in ballots (basically removing the outer envelope that they are contained in and verifying voters’ signatures) before Election Day. Even under this proposed legislation, election officials would not start reading the ballots and counting votes until Nov 3. But starting the process of opening up the ballots before Election Day would help officials speed up the count.
2. Seeking to invalidate laws that make it easier to vote amid COVID-19
This is different from the prior category (and more concerning) because in these instances Republicans are seeking to overturn decisions already made to ease the voting process.
- Pushing to get existing drop boxes removed. In Pennsylvania, Republicans are suing to prevent the use of drop boxes, as well as advancing legislation that would limit drop boxes to a few types of official sites, which would mean some existing boxes could no longer be used.
- Stopping local officials from making absentee voting easier. Republicans in Texas filed and won a lawsuit to bar officials in Democratic-leaning Harris County (the Houston area) from sending absentee ballot applications to all registered voters in the county. In Iowa, the Trump campaign filed and won a lawsuit stopping officials in one of the state’s more urban and Democratic-leaning areas from sending voters absentee ballot applications that already had some information (like the voter’s name and birthday) already filled in. In Montana, the Trump campaign and GOP officials have filed a lawsuit to block a policy implemented by the state’s governor, who is a Democrat, that would allow all counties to set up comprehensive vote-by-mail programs.
3. Advancing new practices and provisions that make it harder to vote
- Complicating the voting process for felons in Florida. Not much has changed in the last month in this category. But Republican officials in Florida are continuing litigation to keep in place a law they adopted in 2019 that requires convicted felons to pay all fees associated with their sentence before their voting rights are restored. The law, in effect, limits a 2018 ballot initiative adopted by Florida voters intended to restore felon voting rights. In continuing this litigation, Florida Republicans are likely to be successful in basically running out of the legal clock and keeping the 2018 provision from truly going into effect in the 2020 election cycle.
4. Anti-democratic rhetoric
- Misleading statements about voter fraud. Trump and Attorney General William Barr continue to argue that widespread mail-in voting will lead to a lot of voter fraud, often making outlandish and inaccurate claims to support their position. There is no evidence that voting by mail leads to increased fraud, and in states like Washington and Oregon, where most people have voted by mail for years, there has been no evidence of widespread malfeasance.
5. Fundamental changes to the electoral process
- Encouraging people to vote twice. Trump has recently been encouraging people who vote by mail to also go to vote at the polls on Election Day. If the election systems are working properly, he argues, they won’t be allowed to vote in person. It is very unlikely that anyone’s vote will be counted twice, but encouraging people who have already voted by mail to also show up in person will complicate election officials’ jobs. If some people actually do vote twice, that would, of course, undermine the entire voting process — and break the law.
- Downplaying potential Russian interference. Published reports suggest that Russian operatives are using measures similar to those they employed in 2016 to both boost Trump and increase political division in America. But the Trump administration has opted against clearly saying that Russia is engaged in such conduct or forthrightly condemning it. Instead, senior Trump officials have suggested that both Russia and China are trying to interfere, with China favoring Democratic nominee Joe Biden and Russia favoring Trump. But in reality, while the Chinese do favor Biden, according to published reports, there is no evidence that they are pursuing active measures to help him win, unlike Russia.
In addition, the Trump administration — apparently in retaliation for congressional Democrats publicly indicating that Russia is trying to tilt the election toward Trump — has opted to limit briefings to Congress on election security. In particular, top intelligence officials will now only submit written comments to Congress, instead of meeting in-person with leaders from both parties on the key intelligence committees.
There are plenty of Republican officials, even in some of the states listed above, taking steps to make it easier to vote. Texas, for example, increased the number of days in which early voting is available. So it’s not that all Republicans are trying to complicate the voting process. Rather, most of the officials trying to complicate the voting process are Republicans. Also, Republicans aren’t the only people filing a lot of lawsuits and pushing a lot of changes to the voting system — it’s just that Democrats’ extensive legal efforts are generally pushing to make it easier to vote.
So the most surprising aspect of the voting process is what we have laid out here: One party seems to be systemically making it harder to vote and taking other steps that undermine the integrity of the electoral process. The big question is whether these tactics will work, either by keeping anti-Trump ballots from being cast or counted, or by throwing the election results (whatever they end up being) into doubt.
A death penalty protestor carries a sign across the street from the federal prison complex in Terre Haute, Ind., on Aug. 26, 2020. (photo: Michael Conroy/AP)
Trump Execution Spree Continues at Federal Killing Ground
Liliana Segura, The Intercept
Segura writes: "More federal executions have been carried out in 2020 than in the past 57 years combined."
READ MORE
Department of Homeland Security. (photo: Timothy A. Clary/Getty)
ALSO SEE: Right-Wing Militia Members Arrested for Beating
Black Lives Matter Protesters Outside Pro-Trump Rally
White Supremacy Is 'Most Lethal Threat' to the US, DHS Draft Assessment Says
Geneva Sands, CNN
Sands writes: "White supremacists will remain the most 'persistent and lethal threat' in the United States through 2021, according to Department of Homeland Security draft documents."
hite supremacists will remain the most "persistent and lethal threat" in the United States through 2021, according to Department of Homeland Security draft documents. The most recent draft report predicts an "elevated threat environment at least through" early next year, concluding that some US-based violent extremists have capitalized on increased social and political tensions in 2020.
Although foreign terrorist organizations will continue to call for attacks on the US, the report says, they "probably will remain constrained in their ability to direct such plots over the next year."
The threat assessment -- which also warns of continued disinformation efforts by Russia -- is especially notable as President Donald Trump has often employed race-baiting tactics in his quest for reelection and frequently downplayed the threat from white supremacists during his term in office. The Trump administration has portrayed Antifa and anarchists as a top threat to the US, with the President tweeting this summer that the US will designate Antifa as a terrorist organization.
The recently released draft reports, which were made public by Lawfare Editor in Chief Benjamin Wittes and first reported by Politico, assess a host of threats, including cyber, foreign influence and irregular migration.
All three drafts state that white supremacist extremists are the deadliest threat. However, the placement and language about white supremacy in three versions of the DHS draft documents differ slightly.
The earliest available version of the "State of the Homeland Threat Assessment 2020" drafts reads: "We judge that ideologically-motivated lone offenders and small groups will pose the greatest terrorist threat to the Homeland through 2021, with white supremacist extremists presenting the most lethal threat."
The lead section on terror threats to the homeland is changed in the latter two drafts to replace "white supremacist extremists" with "Domestic Violent Extremists presenting the most persistent and lethal threat."
The reports, however, all contain this language: "Among DVEs [Domestic Violent Extremists], we judge that white supremacist extremists (WSEs) will remain the most persistent and lethal threat in the Homeland through 2021."
Wittes published the documents because he wanted there to be a "benchmark about what the career folks at DHS actually assessed the threats to be against" the final product that is released by the department.
He told CNN that "the most striking thing is in this political atmosphere; they have said what they said" -- that white supremacist violence is the threat they are most concerned about.
"I don't want to criticize them when that language is there. That said it is somewhat different in the first draft than the subsequent two and I do think the nature of the change is notable as a reflection of the political pressure they are under," he said.
CNN has reached out to DHS for comment. The final 2020 threat assessment has not been publicly released.
The 2020 draft report also finds that Russian state-affiliated actors will continue targeting US industry and all levels of government with "intrusive cyber espionage." According to the draft, China and Russia are the most capable nation-state cyber adversaries, but Iran and North Korea also pose a threat to the US.
One of the report's "key take-aways" is that "Russia probably will be the primary covert foreign influence actor and purveyor of disinformation and misinformation in the Homeland."
Moscow's primary aim is to undermine the US electoral process and weaken the United States. Some Kremlin-linked disinformation also might motivate acts of violence in the US, the draft report says.
Trump has regularly downplayed the threat of white supremacist violence during his presidency, most notably when he said there were some "fine people" among the extremists who sparked violence in Charlottesville, Virginia, in 2017. He's also called Blacks Lives Matter a "symbol of hate" and has regularly pushed narratives on Twitter that emphasize violence against White Americans as he seeks to curry support in the suburbs.
Officials in his administration, however, have warned against white supremacist extremism.
Last year, CNN reported that White House officials rebuffed efforts by their DHS colleagues for more than a year to make combating domestic terror threats, such as those from white supremacists, a greater priority as specifically spelled out in the National Counterterrorism Strategy.
Then-acting Homeland Security Secretary Kevin McAleenan said last year White supremacist extremism is one of the most "potent ideologies" driving acts violence in the US, when he released the department's counterterrorism strategy, outlining the ongoing threats from foreign terrorism and focusing on domestic terror threats, particularly white supremacism.
"In our modern age, the continued menace of racially based violent extremism, particularly white supremacist extremism, is an abhorrent affront to the nation, the struggle and unity of its diverse population," he said in a speech at the Brookings Institution almost a year ago.
The threat assessment was prompted by a 2019 DHS counterterrorism strategy that called for annual reports to inform government officials and the public.
An F/A-18F Super Hornet lands on the US navy's super carrier USS Dwight D. Eisenhower (CVN-69) ('Ike') in the Mediterranean Sea on July 6, 2016. (photo: Getty)
Donald Trump Is the Military-Industrial Complex
Adam Weinstein, The New Republic
Excerpt: "The president says the generals hate him because he ends endless wars. That ain't it, chief."
verybody knows Donald Trump is an opportunistic, lying asshole. Hell, that was his defenders’ main point this weekend, when they tried vainly to save the president from Jeffrey Goldberg’s September 3 article in The Atlantic, in which multiple former U.S. officials and senior military officers revealed—anonymously—that Trump in private is the same as Trump in public: a narcissistic twit who lacks a tenth-grader’s understanding of American combat history and thinks the nation’s war dead are “losers” and “suckers.” Trump, one senior White House official told The Daily Beast, “means no disrespect to our troops; it’s just that the way he speaks, he can sound like an asshole sometimes.” Sometimes! On Labor Day, however, Trump held a press conference and funneled his Big Asshole Energy into a different demagogic faux-populist defense. Those retired military officers hate him, the wealth-inheriting tycoon said, because they’re deep-state war profiteers. “They want to do nothing but fight wars so that all of those wonderful companies that make the bombs and make the planes and make everything else stay happy,” said the man who has increased U.S. bombing in Afghanistan by 800 percent over his presidential predecessor, dropping more bombs on the nation in 2019 than in any year since the military began keeping those records in 2006.
“Some people don’t like to come home, some people like to continue to spend money,” said the man who vowed in late 2017 to “once and for all, stop the endless budget cuts to our military” and has bragged about increasing the military’s budget in every year of his presidency, a runaway spree that even honest conservative think tanks call “crazy.”
But America’s expensive wars, Trump claimed on Labor Day, were not his fault. Responsibility for them went to the generals and to another shadowy group: “One cold-hearted globalist betrayal after another, that’s what it was.” It should be lost on no one that Trump made sure to deploy the “globalist” slur—with its echoes of past anti-Semitic conspiracy plots—to push back on Goldberg’s story. (“He may be a globalist,” Trump once said of Gary Cohn, his outgoing Jewish economic adviser, “but I still like him.”)
By Monday evening, Trump was on Twitter, retweeting self-identified anti-imperialist and longtime horseshoe-theory vindicator Glenn Greenwald, who compared Trump’s blather to Dwight Eisenhower’s famous warning to the American people about the “military-industrial complex”:
This isn’t exactly new brand positioning for Trump, but a long-standing extension of his “drain the swamp” scam, in which he is a dovish anti-establishment savior of the little guy. In this case, he loves the comparisons to Eisenhower—who, it should be noted, spent decades as a uniformed soldier at war and delivered his speech against the militarism industry as he was leaving office. In this bad-faith Republican fantasy, Trump also figures to look like populist Marine veteran Smedley Butler, who in 1935 wrote that “war is a racket” for big business. (Butler also earned two Medals of Honor in combat and became an ardent anti-fascist who detested the American Legion, which now enthusiastically supports Trump.)
Some well-paid pundits were falling for this Donald-as-dove garbage in the lead-up to his 2016 election against bona fide liberal hawk Hillary Clinton. Even cold geopolitical realists and neoliberals got into the game last year, when Trump canned the war-addicted neoconservative John Bolton as his national security adviser. (“Bolton’s firing ends Trump’s hawkish phase,” one gullible optimist wrote.)
But today, there is no excuse for reasonable people to pretend Trump is fighting the good fight against U.S. imperialism or runaway military expansion. To pretend thus is to forget entirely about the years of accusations and political assassinations to goad Iran into an open conflict; the civil war in Yemen, in which tens of thousands of women and children have been killed by U.S. proxies, who deploy with American bombs and aircraft; and the mind-boggling expansion of Afghanistan bombing, which has predictably killed scores more civilians and has not led to victory or even withdrawal: U.S. troop levels in Afghanistan may actually be higher now than when Trump took office. (I say “may” because the Trump administration, breaking with its predecessors, simply refuses to publicly reveal how many troops the U.S. deploys, something a dove would totally do.)
Do enemies of the military-industrial complex secretly entice Middle Eastern allies to sign peace deals in exchange for a delivery of U.S.-built F-35 fighter jets? Trump does. He loves the F-35, the largest military boondoggle in human history, so much that he constantly brags, quite incorrectly, that the aircraft is literally invisible. He loves space-age military technology so much that he forced the military to accept its first new branch since 1947, the Space Force, which is already shaping up to be a boon for thirsty defense contractors.
To consider Trump an enemy of the American militarism business, you would also have to forget why he was impeached, so let me help with that: He held up the sale of “coveted overpriced” Javelin anti-tank missiles to Ukraine as leverage to persuade the Ukrainian president to announce a criminal investigation against Joe Biden’s son. Trump did that because he believes—to paraphrase convicted influence-peddler Rod Blagojevich—that American military hardware is a fucking valuable thing. (Trump, of course, sprung Blago from his prison sentence earlier this year; commutation power is a valuable thing, too.)
For the past four years, and again on Labor Day, Trump has claimed without warrant that “we’re getting out of the endless wars.” Who still believes this bullshit? Only the bullshit-consuming Trump base, and a handful of platformed “left” anti-imperialists who still find value in appearing on Tucker Carlson and allying with alleged GOP war skeptics who might as well put triple parentheses around the words “globalist” and “cosmopolitan” when they use them.
Consequently, I write here not to convince anyone of Trump’s obvious, hardware-worshipping affection for war and violence but to remind you of what kind of a dove Trump is attempting to pose as: an incoherent populist, glomming onto a few borrowed words that activate people’s emotions. As a businessman, as a politician, as a human being, this disingenuous bizarro-Trump self-marketing has profited him richly—and it has ruined almost every person, corporation, or institution that has ever invested any money or faith in him. It has also bumbled the United States into destruction, death, and disorder. If you buy Trump or his partisans as anti-imperialists, you may as well buy a casino from them while you’re at it.
A refugee woman holding a baby passes the burned debris after a fire in the Moria refugee camp on the northeastern Aegean island of Lesbos, Greece, on Wednesday. (photo: Petros Giannakouris/AP)
Thousands of Refugees Homeless After Fire Destroys Moria Camp on Lesbos
Katy Fallon, Al Jazeera
Fallon writes: "Thousands of refugees have been made homeless after a fire engulfed Moria, a notoriously overcrowded refugee camp on Greece's Lesbos island, where about 13,000 people had been living in a space designed for just under 3,000."
The origin of the fire, which started inside the camp late on Tuesday night and began to spread quickly through the densely packed hillside, remains unclear.
Considerable areas of the sprawling site were burned to cinders, with reports from officials that about 70 percent of containers and tents had been destroyed.
"The situation is unbearable and difficult for us, at the moment we are currently homeless on the roads," Mohammad Hanif Joya, a 35-year-old Afghan, told Al Jazeera by phone as he sat on a road with his family, including four children.
"We saved only the children and ourselves," he said. "All our clothes and belongings were burned in the fire."
Joya said they had no food and water.
"Moria is all burned," he said. "Everyone is on the road under the scorching sun."
He added that a peaceful demonstration was planned for this afternoon.
Camp residents fled after the fire broke out, grabbing any belongings they could.
Many, like Afghan Omid Alizada, left with nothing.
Sitting on the side of a road between Moria and the main town of Mytilene with thousands of others from the camp, he said: "We left with nothing, only the clothes on our body. Thousands of people rescued their lives from this huge fire, they are wandering in the streets and left the camp to go to Mytilene."
There were unconfirmed reports that there were police-initiated blockades along the road between Moria and Mytilene, preventing people from reaching the main town.
The fire brought fresh tragedy to the residents of the infamous refugee camp, which was under quarantine restrictions due to an outbreak of COVID-19 last week; cases have since been steadily rising.
As of Tuesday, there had been at least 35 confirmed cases in the camp.
In response to the fire, Ylva Johansson, the European Commissioner for Home Affairs tweeted that she had agreed to finance the immediate transfer to the mainland of the remaining 400 unaccompanied children and teenagers, a sum which would include accommodation.
"The safety and shelter of all people in Moria is the priority," she said.
Prime Minister Kyriakos Mitsotakis called ministers to an emergency meeting.
Faris al-Jawad from Doctors Without Borders, known by its French initials MSF, told Al Jazeera that his group still did not have clarity on whether there were injuries or deaths.
Most Moria residents were on the road between Moria and the main town of Mytilene, he said, with some people now returning to the site to collect any belongings they could salvage.
"It's fair to say that after five years of trapping people in barbaric and inhumane conditions, at some point something like this was inevitable," he said. "It seems impossible for everyone to go back to Moria tomorrow, everyone needs to be evacuated to a safe place on the mainland or to other EU countries."
"Ali Mustafa, a 19-year-old Moria resident, said that he had not slept at all.
"I saw bad things with my eyes," he said. "Nothing is left and most of the people are sleeping in the streets, they don't have money to buy anything, they lost everything last night."
Traffic on the Hollywood Freeway in Los Angeles in December 2018. (photo: Damian Dovarganes/AP)
Illegal Devices That Bypass Vehicle Emissions Controls Spread Across US
Eli Wolfe and Alexandra Tempus, Guardian UK
Excerpt: "Thousands of tons of pollution spew into the air in the US from devices that proliferate online and in body shops."
hen officials at the Environmental Protection Agency began investigating Freedom Performance, LLC, they didn’t have to look very hard for evidence that the company was violating the Clean Air Act. According to legal documents, the Florida car parts distributor literally advertised violations on its website.
“The road to hell is often paved with good intentions,” stated one ad for a kit to remove federally required emissions controls from diesel trucks. It identified a particular emissions control system that “is certainly noble in its intent” but “in reality it is putting your engine through hell … The best solution is deletion.”
According to the EPA, Freedom Performance was advertising defeat devices –hardware and software that bypasses or eliminates emission controls. The Clean Air Act forbids tampering with these controls, and violations carry heavy fines. But defeat devices – also known as “delete devices” – are popular with many vehicle owners.
Shops advertise that “delete kits” will improve mileage and extend the lifespan of expensive components, saving customers thousands of dollars. In recent years, a lucrative cottage industry of defeat devices has exploded across the US as repair shops, online retailers and manufacturers feed, and generate, consumer demand.
The EPA estimates that more than 500,000 diesel pickup trucks have been “deleted” since 2009. The EPA claims that these illegally modified vehicles produced hundreds of thousands of tons of excess nitrogen oxide – the equivalent of adding 9m more trucks to the road. Public health advocates say diesel emissions contribute to increases in fine particulate matter and other airborne pollutants that have been linked to higher rates of cancer, heart attacks, strokes and neurodegenerative diseases.
In recent years, the EPA has escalated a crackdown, resolving more than 60 cases against companies that make or distribute defeat devices since 2017. The penalties can be stiff: in February, the agency announced that Freedom Performance would pay more than $7m for committing thousands of violations. A managing member of the company, Geoffrey Kemper, did not respond to a request for comment.
But the crackdown has left much unresolved.
For one, defeat devices can be easily found for sale in brick-and-mortar stores around the country and online. That has led some public health advocates to launch their own litigation under the Clean Air Act. They have targeted body shops featured on the popular Discovery Channel show Diesel Brothers, where some mechanics have customized huge diesel trucks with names like BroDozer and Truck Norris.
Enforcement of the defeat device law has triggered pushback from body shops and retailers who say the law is confusing and draconian. The industry is backing a bill in Congress written by lawmakers calling themselves the Motorsports Caucus. The bill claims it would protect the right of motorists to convert a highway vehicle into a race car, but that, opponents say, would hamper EPA enforcement of clean air standards.
Delete kits
Once upon a time, turning off the emissions controls in a vehicle was almost as simple as flipping a switch, according to the EPA. But as the agency imposed tighter emissions standards, automakers introduced increasingly sophisticated equipment to reduce pollutants.
Nowadays, defeat devices generally come in “delete kits” with hardware and software to use in tandem. “Tuners”, which plug into a vehicle, install software known as “tunes” that changes how a vehicle’s computer regulates emission levels. Physical devices can be installed in a vehicle’s engine or exhaust system; they include “delete pipes”, hollow tubes that bypass or replace equipment containing sensitive filters.
Though aftermarket defeat devices have always been illegal, the EPA significantly ramped up enforcement around the time of the most notorious automotive industry fraud of the 21st century: the Volkswagen scandal.
In 2013 and 2014, the California government’s air resources board and researchers at West Virginia University discovered that the German automaker had installed a defeat mechanism across its fleet of diesel-engine passenger vehicles. It could detect when the cars were being tested, bringing emissions levels down to regulatory standards.
On the road, however, the vehicles emitted up to 40 times more nitrogen oxides – reactive, poisonous gases – than during the tests. Nearly 600,000 of these vehicles were sold or for sale in the US, and the company later admitted it had manufactured about 11m globally.
The result was a legal settlement that has cost Volkswagen more than $20bn in the US alone, including criminal and civil penalties and investments in emission reduction projects around the country.
“Few companies could survive that litigation,” said John Cruden, assistant attorney general for environment at the time and lead negotiator on the Volkswagen case. “So obviously it has an exceptional deterrent effect.”
The ripples have reached smaller operators in the aftermarket parts industry, which makes and installs defeat devices after vehicles are on the road. They range from subsidiaries of major companies such as Polaris Inc to local garages tampering with controls on a few dozen semi trucks.
One of the first companies to catch the EPA’s attention was H&S Performance.
In 2015, the EPA announced that the Utah manufacturer had agreed to pay a $1m fine for making and selling tens of thousands of defeat devices. According to the consent agreement, the EPA estimated that the H&S tuners had created an additional 71,669 tons of nitrogen oxides. The agency claimed that H&S had committed more than 114,000 violations of the Clean Air Act – one violation for each time H&S sold a defeat device.
Over the next five years, the EPA took aim at companies that had manufactured hundreds of thousands of defeat devices. For example, in September 2018, the agency settled a case with a Florida firm called Derive Systems, which allegedly manufactured and sold approximately 363,000 parts.
Despite these actions, many companies continue to operate with impunity. The clearest evidence is the sheer number of tuners and straight pipes that appear to be openly sold on e-commerce sites, including eBay, and by users on Facebook’s Marketplace platform.
“All you’ve got to do is Google DPF tuner online and you’ll have a hundred places you can buy it today,” David Sparks, a mechanic who has featured on Diesel Brothers, said in a deposition in a court case.
While most sites don’t openly claim that their products bypass emissions controls, eBay vendors sell “delete kits” that do make this boast, despite an eBay policy that forbids the sale of defeat devices. An eBay representative told FairWarning the company would remove the illegal listings, but a search for “delete kits” nearly five weeks later still turned up numerous items for sale.
There is also at least one listing for a “delete kit” on Facebook’s Marketplace platform that remains active days after FairWarning notified the company. Facebook puts the legal onus on Marketplace buyers and sellers, a spokesperson told FairWarning, and only investigates listings when asked by regulators or law enforcement.
Lawsuits
Discouraged by what they see as the EPA’s limited results, public health advocates in Utah are pursuing a novel strategy to eliminate defeat devices.
In 2017, Utah Physicians for a Healthy Environment filed what the group claims was the first Clean Air Act citizen suit against companies selling defeat devices. The law allows private citizens to file lawsuits to enforce emissions standards. Their targets included body shops featured on Diesel Brothers.
County health department data showed that many diesel trucks were failing emissions tests due to deliberate tampering with pollutant controls, and that a deleted diesel typically produced 36 times more nitrogen oxides than allowed by the EPA.
Reed Zars, the attorney who filed the suit, only had to look as far as Instagram and Facebook to find potential violations by some of the companies featured on the TV show.
Zars bought one of the trucks that had appeared on the show and took it to an EPA-certified lab in Colorado for emissions testing. The lab discovered that the modified truck emitted 30 to 40 times the limit for various pollutants.
The Discovery Channel declined to comment.
David Sparks, a body shop owner featured on Diesel Brothers and one of the defendants in the lawsuit, did not respond to requests for comment.
In March, a court ruled in favor of the physicians’ group, imposing over $850,000 in fines and penalties and forbidding the defendants from selling defeat devices.
Last September, the Utah advocacy group went after a bigger target: Tap Worldwide, an aftermarket parts company with dozens of brick-and-mortar outlets across the US. Tap is a subsidiary of Polaris Inc.
According to the suit, Tap has repeatedly violated the Clean Air Act by selling and installing defeat devices. The company, which has asked the court to dismiss the case, did not respond to requests for comment.
In California, the industry is well aware of state rules that are more stringent than the EPA’s, said Stanley Young, spokesman for the California air resources board.
“By now everybody knows how strict California is and anybody who tries to sell unauthorized aftermarket parts in California typically knows that they’re doing it illegally and they have to do it kind of on the down-low,” Young said.
The EPA said it had made more than two dozen educational presentations to various industry groups since fall 2019.
But players in the industry and their supporters in Congress continue to promote the idea that the EPA is targeting people who transform their vehicles solely for racing.
In October 2019, Congress’s “Motorsports Caucus” introduced a bill to protect the right of motorists to convert their vehicles into race cars – the latest version of legislation that has previously failed.
According to public records, the Specialty Equipment Market Association has lobbied for years for Congress to pass such a bill, branding it a commonsense correction to EPA overreach.
The EPA stated in an email that it had no interest in cracking down on those who manufacture, sell or install parts that transform street-legal vehicles into race-cars only operated on a track. What is illegal, according to the EPA, is modifying emissions controls in vehicles that will be used on streets and highways.
The bill’s opponents believe that rather than clarifying the EPA’s scope, it would make enforcement more difficult. The Congressional Budget Office anticipated that the bill would probably force the EPA to shift its focus from manufacturers and sellers to vehicle users.
In the aftermath of the Volkswagen scandal, regulators are devising new ways to catch potential defeat device violations at every level.
The California air resources board, for instance, is testing ways to identify trucks exceeding emissions standards even when they’re on the road, Young said.
Hi-tech solutions may become an effective form of deterrence. For now, though, many companies are still willing to test the law. On 23 July, the EPA announced that it had busted an Irvine, California, company for manufacturing and distributing defeat devices.
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