Preemption of Emissions Fraud Claims Under the Clean Air Act: Counts v. General Motors

Introduction

In Counts v. General Motors, LLC, 25a0150p.06 (6th Cir. June 6, 2025), a putative class of diesel-vehicle purchasers challenged General Motors and Bosch on state-law fraud and RICO theories. The plaintiffs alleged that certain Chevrolet Cruze models emitted far higher levels of nitrogen oxides (NOx) than advertised, asserting that the manufacturers had concealed “defeat devices” in the vehicles’ software. The key questions on appeal were (1) whether those state-law fraud claims are conflict-preempted by the Clean Air Act (CAA) and the EPA’s exclusive authority to certify vehicle emissions, and (2) whether the RICO claims fail under the “indirect-purchaser” rule. The Sixth Circuit affirmed in part, vacated in part, and remanded for further proceedings on preemption issues in light of intervening precedents.

Summary of the Judgment

The Sixth Circuit affirmed the dismissal of the plaintiffs’ RICO claims under the indirect-purchaser rule.
Relying on Ford Motor Co. and Fenner v. GM, the court held that state-law fraud claims challenging emissions compliance may be conflict-preempted if they impermissibly second-guess EPA determinations about so-called “defeat devices.”
The court vacated the district court’s blanket holding of preemption for the remaining fraud claims and remanded for a focused inquiry into whether each claim depends on a challenge to an EPA certification.
The district court may then decide in the first instance whether genuine disputes of material fact remain on any unpreempted claims and proceed accordingly.

Analysis

Precedents Cited

Several key decisions shaped the Sixth Circuit’s analysis:

Clean Air Act & EPA Regulations (42 U.S.C. §§ 7522–7525; 40 C.F.R. Part 86): Establish the exclusive federal scheme for certifying new-vehicle emissions, define “auxiliary emission control devices” (AECDs) and “defeat devices,” and bar sale of uncertified vehicles.
Ford Motor Co. Litigation, 65 F.4th 851 (6th Cir. 2023): Held that fraud claims attacking EPA-approved fuel-economy figures are conflict-preempted because they effectively permit juries to rewrite EPA testing protocols and rebalance the agency’s objectives.
Fenner v. General Motors, 113 F.4th 585 (6th Cir. 2024): Distinguished various theories of emissions fraud, permitting claims that do not hinge on second-guessing EPA’s defeat-device determinations or emissions-testing process, while preempting those that do.
Silkwood v. Kerr-McGee, 464 U.S. 238 (1984): Articulated the Supreme Court’s two-prong approach to conflict preemption—impossibility of dual compliance or obstacle to congressional objectives.
Apple, Inc. v. Pepper, 587 U.S. 273 (2019): Provided the bright-line rule for direct- vs. indirect-purchaser antitrust standing, applied by analogy to RICO claims in Fenner and here.

Legal Reasoning

The Sixth Circuit’s opinion centered on conflict preemption. Under CAA § 209(e)(2) and implementing EPA regulations, once the EPA issues a certificate of conformity, it has exclusive authority to determine whether a vehicle’s emissions controls—including any AECD—comply with federal standards. State-law claims that inevitably require relitigating those EPA decisions create an obstacle to Congress’s goal of uniform national emissions regulation.

In Ford, the court barred consumer suits that would let juries revise EPA-approved fuel-economy ratings. In Fenner, a narrower panel allowed some fraud theories to survive—specifically those that did not rest on challenging the EPA’s defeat-device findings and had evidentiary support independent of EPA standards.

Applying those principles in Counts, the Sixth Circuit held that the district court must determine, theory by theory and piece by piece, whether each remaining fraud claim:

“Implication or challenge” to an EPA determination that a particular AECD is not a defeat device; and
Evidence “existing independently of EPA standards,” so that plaintiffs can win without proving a vehicle violated the CAA.

If both conditions are satisfied, the claim escapes preemption; otherwise it fails. The court remanded for this detailed inquiry, rather than making a categorical ruling on the existing record.

Impact

Counts clarifies that:

Federal preemption under the CAA is fact- and theory-specific. Not all emissions-related fraud claims are automatically barred, but those that imperil the EPA’s exclusive domain will be.
Plaintiffs must carefully frame causes of action and adducing evidence that does not seek to relitigate EPA certifications.
District courts should conduct granular preemption analyses in putative emissions-fraud and fuel-economy cases, applying the Ford/ Fenner framework.

Complex Concepts Simplified

Certificate of Conformity: An EPA-issued approval indicating a vehicle model meets federal emissions limits.
Auxiliary Emission Control Device (AECD): Software or hardware features that change emission-control performance based on operating conditions.
Defeat Device: An AECD that unjustifiably reduces emission-control effectiveness under real-world driving, barred by EPA regulations.
Conflict Preemption: Federal law overrides state law when dual compliance is impossible or state requirements conflict with federal objectives.
Indirect-Purchaser Rule: Under antitrust—and by analogy RICO—only direct purchasers may sue for overpayments; pass-on plaintiffs lack standing.

Conclusion

Counts v. General Motors marks a refined application of CAA preemption principles to consumer-fraud litigation. By directing a focused, claim-by-claim review in light of Ford and Fenner, the Sixth Circuit ensures that only those state-law suits truly intruding on the EPA’s exclusive certification role are barred. The decision underscores the importance of defining fraud theories that rest on independent evidence, avoiding any collateral attack on federal emissions determinations. Future lower-court and plaintiff-side strategies will turn on this nuanced blueprint for navigating the complex interplay between federal emissions regulation and state-law remedies.