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Volkswagen seeks to dismiss Illinois lawsuit over diesel scandal, cites Wyoming ruling

Volkswagen hopes to parlay a court victory over the state of Wyoming into a similarly successful defense in a lawsuit filed by the state of Illinois last year.

A federal judge on Aug. 31 tossed out a lawsuit by Wyoming over environmental damages caused by the automaker's surreptitious installation of a "defeat device," or software that masked true diesel emission levels. Illinois was among the states filing legal briefs in support of Wyoming's case.

A day after U.S. District Judge Charles Breyer granted Volkswagen's motion to dismiss Wyoming's complaint, the German company asked Cook County Circuit Judge Kathleen Pantle to throw out the lawsuit filed last November by Illinois Attorney General Lisa Madigan over the environmental impact of the emissions cheating scandal.

In a Sept. 1 filing in Cook County Circuit Court, Volkswagen cited a section of the Clean Air Act enacted by Congress to ensure that the federal government, not the states, would regulate automakers when it comes to emissions controls in new vehicles. By doing so, manufacturers wouldn't have to deal with a patchwork of programs, it said.

That section says "states ... may not adopt or enforce their own rules prohibiting defeat devices in new vehicles," Volkswagen said in its motion to dismiss. "Like Wyoming, that's precisely what Illinois impermissibly seeks to do through its action."

Likewise, Illinois' claims should be dismissed, Volkswagen said in its 25-page motion.

Federal judge Breyer said Wyoming's claims were barred under the federal Clean Air Act.

"Wyoming's claims (and those of other states) threaten to interfere with interstate commerce because they're predicated on conduct that occurred during the manufacture of hundreds of thousands of vehicles intended for distribution throughout the United States," Breyer wrote in a 24-page ruling. "Because Volkswagen's conduct took place during manufacturing, Congress determined that EPA, not the 50 states, was best suited to regulate it."

Breyer noted that Volkswagen has been held responsible for its actions.

Madigan and most other state attorneys general previously reached settlements with Volkswagen for violating state consumer protection laws for marketing, selling and leasing diesel vehicles with illegal and undisclosed software that concealed the true level of nitrogen oxide emissions.

Volkswagen, in its filing with Cook County Circuit Court, said "Illinois and its residents are set to receive nearly $732 million in consumer relief, plus nearly $109 million to mitigate" environmental damage, plus part of a national $2 billion zero-emissions vehicle infrastructure program, "plus over $51 million to compensate 27 dealers."

Volkswagen said a provision of the Clean Air Act "merely allows states to regulate the use or operation of vehicles after their sale to limit emissions, through inspection and maintenance programs or measures addressing extended idling, carpool lanes and the like."

byerak@chicagotribune.com

Twitter @beckyyerak

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