The EPA hit big-name shops and suppliers with more than $4.96 million in fines and payments in FY 2021 alone.
While the EPA’s current interpretation of the Clean Air Act (CAA) creates hurdles for the aftermarket tuning industry at large, its consequences are further reaching, and may prevent enthusiasts from building race cars out of road cars. A group of enthusiasts aiming to protect our ability to build race cars have embroiled the EPA in a new lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit. R&T spoke with both sides of this legal battle to better understand the stakes.
The EPA quietly tweaked the language of the Clean Air Act in 2016, which some argue changed the scope of the law entirely. Specifically, the language may prevent one from building a race car from any vehicle that carries a VIN tag. This has created massive issues for the companies responsible for dolling out off-road use parts, with several large brands forced into large financial settlements with the EPA over the past year.
“It doesn’t matter what form of racing you want to participate in, that lifestyle is in jeopardy right now, and it has been in a serious way since 2016,” Performance Racing Industry President Dr. Jamie Meyer told R&T.
For background, the EPA released a 600-page document on heavy-duty road vehicles ahead of the 2016 language adjustment. Part of that statement included Proposal 40 CFR 1037.601(a)(3), which aimed to clarify the EPA’s position on these types of heavy machines. The language stated that the Clean Air Act’s nonroad engine and competition exemptions are not applicable to motor vehicles, nor have they ever been. That interpretation means race cars (which are considered “competition vehicles”) built from road cars (which are considered “motor vehicles”) are not exempt from the Clean Air Act.
Proposal 40 CFR 1037.601(a)(3) garnered a fierce response from the aftermarket, and the regulatory agency issued a more clearly worded follow-up. In this message, the EPA noted it wasn’t after individual racers or their vehicles, but rather the aftermarket companies selling race products that frequently end up on the street. In an effort to further quell enthusiast panic, the agency directly addressed its outright support of motorsports.
Based on that about-face, you’d expect the fervor to die down. But the aftermarket insists the announcement was little more than a PR move, as punitive actions by the EPA continued.
“Our position is that the EPA has a gross misinterpretation of this,” Meyer said. “You’re talking about a hundred-year legacy in the United States of modifying street-driven vehicles to turn them into race-dedicated cars. I find it quite insulting that the EPA can say that they support racing but they don’t support any form of tampering. Racing in this country is built on modifying street cars. Period.”
According to Racing Enthusiasts and Supplier Coalition (RESC) co-chair Jon Pulli, the new language surrounding exemptions is the crux of the issue. The language update virtually eliminated the former exemptions outlined in the original definition of a motor vehicle. These included exceptions for vehicles that lacked features associated with safe road use, or features that rendered its use on the street impractical or unlikely. Aftermarket shops have long considered race car builds to belong to the second category of exemptions.
The EPA argues in the lawsuit that the CAA has instead stated that individuals are free to build or purchase dedicated competition vehicles like Indy cars or stock cars.
Pulli points to that statement as a lack of understanding for what amateur racing really is, and believes if street cars cannot be turned into race cars, there is no longer a viable pathway to the sport. The EPA has undeniable authority to interpret the laws, but Pulli argues that the agency has instead taken to rewriting the laws without Congressional input. And while Pulli is a massive supporter of the work SEMA is doing in Congress with the RPM Act, the legislative branch takes its sweet time. Until a party is able to score some sort of victory in court, the EPA is able to continue setting legal precedent that it can use to further justify its actions.
RESC has made suggestions to the EPA on how to move forward in harmony. One such suggestion includes the concept of a new racing licensing system, from which the profits could be used to invest into greater carbon offsets. Pulli’s plans haven’t been well received.
“If you really want to fix the problem, tell us what the problem is and the industry will fix it,” Pulli told R&T. “They have no interest in that whatsoever, and it seems they just want it to be gone. I just want everybody to know what they’re doing. If you’re going to kill motorsports, let’s kill it out in the public. You’re not going to do it behind closed doors.”
While the EPA has not said that is seeking to kill motorsports in general, it has been levying huge fines on some of America’s largest aftermarket companies. In the 2021 financial year alone, as noted on the EPA’s website, it has hit Xtreme Diesel Performance with $1,125,000 in civil penalties for selling off-road use parts. Idaho’s Premier Performance, which has “illegally sold devices allowing 3.5 million pounds of illegal emissions per year,” as the EPA puts it, has to pay $3 million. Even JEG’s Automotive, known from the back windows of ratty Camaros across the country, was hit with $300,000 in penalties, and is expected to foot the bill for a supplemental environmental project involving school buses, totaling an additional $275,000. Advanced Flow Engineering seemingly got off light by comparison, having to fork over a sum of just $250,000.
As bad as this all sounds, it is important to note that the impacts of this current EPA effort shouldn’t be felt by current race car owners. While the EPA was unwilling to comment on specifics related to the ongoing lawsuit, the agency did provide the following clarifying statement for R&T:
“As a matter of enforcement discretion, the EPA’s longstanding practice has been not to take enforcement action against vehicle owners for removing or defeating the emission controls of their EPA-certified motor vehicles, so long as they can show the vehicles are used solely for competition events and no longer driven on public roads”
The EPA doesn’t perfectly mirror that sentiment in its legal filings for the lawsuit:
“Motor vehicles, however, cannot become racing vehicles even if they are used solely for competition. They remain motor vehicles, “designed for transporting persons or property on a street or highway,” and continue to be regulated as such.”
That statement is also noticeably careful to leave out the companies that make racing conversions possible. Pulli himself is aware of this stance, and acknowledges a case like this isn’t the aftermarket’s saving grace. He believes that SEMA and other organizations need to politically activate the enthusiast community. SEMA has made this a simple process via its website for the RPM Act, should you wish to voice your concerns. The two sides, which have entered the oral argument process, clearly need to find some common ground to stand on, particularly if preserving amateur racing is a real priority.