[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Yost v. Volkswagen Aktiengesellschaft, Slip Opinion No. 2021-Ohio-2121.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2021-OHIO-2121

THE STATE EX REL. YOST, ATTY. GEN., APPELLEE, v. VOLKSWAGEN 

AKTIENGESELLSCHAFT, D.B.A. VOLKSWAGEN GROUP AND/OR VOLKSWAGEN 

AG, ET AL., APPELLANTS.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Yost v. Volkswagen Aktiengesellschaft, Slip 

Opinion No. 2021-Ohio-2121.] 

Federal preemption—Vehicle-emissions anti-tampering claims—The federal Clean 

Air Act neither expressly nor impliedly preempts R.C. 3704.16(C)(3) or 

precludes an anti-tampering claim against a vehicle manufacturer under 

Ohio’s Air Pollution Control Act for the manufacturer’s post-sale 

tampering with a vehicle’s emissions-control system—Court of appeals’ 

judgment affirmed.

(No. 2020-0092—Submitted January 26, 2021—Decided June 29, 2021.) 

APPEAL from the Court of Appeals for Franklin County, 

No. 19AP-7, 2019-Ohio-5084. 

__________________ 
SUPREME COURT OF OHIO

 2

FISCHER, J.

{¶ 1} In this case, we are asked to decide whether the federal Clean Air Act, 

42 U.S.C. 7401 et seq., preempts Ohio law and precludes an anti-tampering claim 

under Ohio’s Air Pollution Control Act, R.C. 3704.01 et seq. For the reasons that 

follow, we hold that it does not and therefore affirm the judgment of the Tenth 

District Court of Appeals. 

I. BACKGROUND 

{¶ 2} Starting around 2009, appellant Volkswagen Aktiengesellschaft, 

d.b.a. Volkswagen Group and/or Volkswagen AG (“Volkswagen”),1

 programmed 

vehicles manufactured and sold under its various labels with software that would 

enable those vehicles to perform better than they otherwise would have on federal 

emissions tests. The software, sometimes referred to as a “defeat device,” would 

identify when a Volkswagen vehicle was being tested by regulators for compliance 

with federal emissions standards. Once the software detected that an emissions test 

was in progress, the software would trigger equipment within the vehicle that would 

reduce the vehicle’s emissions to an acceptable level. In reality, of course, 

emissions from the vehicle during everyday driving, i.e., under non-test conditions, 

were well above the federally imposed legal limit. 

{¶ 3} Several years into that scheme, Volkswagen learned that its 

emissions-control software was not working properly and was causing certain 

performance problems in its vehicles. Volkswagen updated the software to fix 

those problems and to continue skirting federal emissions standards. Starting 

around 2013, Volkswagen installed the improved and updated software in new 

 

1. Other defendants named in the complaint and appellants here are Audi AG; Volkswagen Group 

of America, Inc., d.b.a. Volkswagen of America, Inc., or Audi of America, Inc.; Volkswagen of 

America, Inc.; Audi of America, L.L.C.; Dr. Ing. h.c. F. Porsche AG, d.b.a. Porsche AG; and 

Porsche Cars North America, Inc. 
January Term, 2021 

 3

vehicles slated for sale in the United States. Without telling its customers the true 

reason why, Volkswagen also installed the updated software in its older vehicles 

through a voluntary recall program and when its customers brought their vehicles 

in for routine maintenance. 

{¶ 4} Eventually, the United States Environmental Protection Agency 

(“EPA”) discovered Volkswagen’s scheme. In a subsequent enforcement action, 

Volkswagen admitted to all of this and agreed to pay a $2.8 billion penalty in 

connection with its wrongdoing. 

{¶ 5} In 2016, then Ohio Attorney General Mike DeWine sued Volkswagen

for its vehicle-emissions tampering, alleging that Volkswagen’s conduct, which 

impacted approximately 14,000 vehicles that had been sold or leased in Ohio, 

violated Ohio’s Air Pollution Control Act, R.C. 3704.01 et seq. As relevant here, 

Volkswagen moved to dismiss the attorney general’s claims on the grounds that 

Ohio’s anti-tampering statute was preempted by the federal Clean Air Act, 42 

U.S.C. 7401 et seq., and that the attorney general’s claims were therefore precluded. 

The trial court agreed with Volkswagen’s preemption argument and granted 

Volkswagen’s motion to dismiss. 

{¶ 6} On appeal to the Tenth District, appellee, Ohio Attorney General 

Dave Yost,2 argued that the trial court erred when it determined that federal 

preemption principles barred the state’s claims against Volkswagen, because the 

federal Clean Air Act draws a critical distinction between new and used vehicles. 

While the attorney general conceded below that federal law alone governs 

emissions from new vehicles, he argued that the federal legislative scheme does not 

preempt Ohio law and preclude state-based claims concerning post-sale tampering 

with a vehicle’s emissions-control system. 

 

2. Attorney General Yost was substituted for former Attorney General DeWine as a party during 

the appeal below to the Tenth District. See App.R. 29(C)(1). 
SUPREME COURT OF OHIO

 4

{¶ 7} The Tenth District agreed with the attorney general, concluding that 

the federal Clean Air Act evinces “no clear and manifest congressional purpose to 

[expressly or impliedly] preempt the State’s in-use motor vehicle emission control 

system tampering claims.” 2019-Ohio-5084, 137 N.E.3d 1267, ¶ 29. As a result, 

the court of appeals reversed the trial court’s judgment and remanded the matter for 

further proceedings. Id. at ¶ 35. 

{¶ 8} Following the Tenth District’s decision, Volkswagen appealed to this 

court and we accepted its appeal to consider whether the federal Clean Air Act 

either expressly or impliedly preempts state-law claims against a manufacturer for 

its post-sale emissions control tampering. See 158 Ohio St.3d 1450, 2020-Ohio1090, 141 N.E.3d 985. 

II. ANALYSIS 

A. Federal Preemption

{¶ 9} Before turning to whether federal law expressly or impliedly preempts 

Ohio’s anti-tampering law and precludes the state-law claims involved here, it is 

helpful to review some basic principles regarding federal preemption. 

{¶ 10} The doctrine of federal preemption originates from the Supremacy 

Clause of the United States Constitution, which provides that the “the Laws of the 

United States * * * shall be the supreme Law of the Land; and the Judges in every 

State shall be bound thereby, any Thing in the Constitution or Laws of any State to 

the Contrary notwithstanding.” Article VI, cl. 2. 

{¶ 11} Under the Supremacy Clause, the United States Congress has the 

power to preempt state law. In re Miamisburg Train Derailment Litigation, 68 

Ohio St.3d 255, 259, 626 N.E.2d 85 (1994); see also Gibbons v. Ogden, 22 U.S. 1, 

210-211, 6 L.Ed. 23 (1824) (“the act of Congress, or the treaty, is supreme; and the 

law of the State, though enacted in the exercise of powers not controverted, must 

yield to it”). Congress may do so either expressly or impliedly. Kansas v. Garcia, 
January Term, 2021 

 5

___U.S. ___, 140 S.Ct. 791, 801, 206 L.Ed.2d 146 (2020); Girard v. Youngstown 

Belt Ry. Co., 134 Ohio St.3d 79, 2012-Ohio-5370, 979 N.E.3d 1273, ¶ 14. 

{¶ 12} When Congress expressly preempts state law, it explicitly says so 

with clear statutory language. English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 

S.Ct. 2270, 110 L.Ed.2d 65 (1990). When considering whether preemption is 

implied, courts look to congressional intent to determine whether Congress meant 

to preempt state law without saying as much. See id. at 79. Identifying implied 

preemption is thus a little more complicated than identifying express preemption, 

but courts generally find this type of preemption in two circumstances. 

{¶ 13} The first circumstance occurs when Congress has enacted a 

legislative and regulatory scheme that is so pervasive “ ‘that Congress left no room 

for the States to supplement it’ ” or when the legislative and regulatory scheme 

“ ‘touch[es] a field in which the federal interest is so dominant that the federal 

system will be assumed to preclude enforcement of state laws on the same 

subject.’ ” (Brackets added in English.) Id., quoting Rice v. Santa Fe Elevator 

Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). Implied 

preemption of this variety is referred to as “field preemption.” English at 79. 

Volkswagen has not presented a field-preemption argument here, so we focus our 

analysis on the second type of implied preemption, which is discussed below. 

{¶ 14} The second circumstance in which implied preemption is found 

occurs when a state law “actually conflicts with federal law.” Id. This type of 

implied preemption is fittingly referred to as “conflict preemption.” Id. at fn. 5. 

Conflict preemption may be broken down further into subcategories depending on 

whether the conflict exists because (1) compliance with both state and federal law 

is impossible, id. at 79, citing Florida Lime & Avocado Growers, Inc. v. Paul, 373 

U.S. 132, 142-143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or (2) the state law 

“ ‘stands as an obstacle to the accomplishment and execution of the full purposes 
SUPREME COURT OF OHIO

 6

and objectives of Congress,’ ” id., quoting Hines v. Davidowitz, 312 U.S. 52, 67, 

61 S.Ct. 399, 85 L.Ed. 581 (1941). 

B. Standard of Review

{¶ 15} Because the “purpose of Congress is the ultimate touchstone,” Retail 

Clerks v. Internatl. Assn., Local 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96, 

103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963), preemption—whether express or 

implied—is primarily a question of legislative intent and so our focus is on the text 

and structure of the provisions involved. Ohio State Bldg. & Constr. Trades 

Council v. Cuyahoga Cty. Bd. of Commrs., 98 Ohio St.3d 214, 2002-Ohio-7213, 

781 N.E.2d 951, ¶ 46; Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 

1185, 55 L.Ed.2d 443 (1978). Preemption is thus a question of law, Pinchot v. 

Charter One Bank, F.S.B., 99 Ohio St.3d 390, 2003-Ohio-4122, 792 N.E.2d 1105, 

¶ 39, and we conduct a de novo review of a judgment that was based on preemption 

grounds. See Menorah Park Ctr. for Senior Living v. Rolston, ___ Ohio St.3d ___, 

2020-Ohio-6658, ___ N.E.3d ___, ¶ 12. 

C. The Federal Clean Air Act and Ohio’s Air Pollution Control Act 

1. The Federal Clean Air Act Does Not Expressly Preempt Ohio’s VehicleEmissions Anti-Tampering Law and Preclude the Attorney General’s Claims 

{¶ 16} When it comes to preemption, Section 209 of the federal Clean Air 

Act expressly provides that “[n]o State or any political subdivision thereof shall 

adopt or attempt to enforce any standard relating to the control of emissions from 

new motor vehicles or new motor vehicle engines subject to this part.” 42 U.S.C. 

7543(a). 

{¶ 17} Volkswagen contends that the Ohio statute at issue here, R.C. 

3704.16(C)(3), is expressly preempted by 42 U.S.C. 7543(a) and that the attorney 

general’s claims are precluded as a result. Specifically, Volkswagen asserts that by 

prohibiting states from adopting or enforcing standards relating to emissions from 

new motor vehicles and new motor-vehicle engines, Congress has expressly 
January Term, 2021 

 7

precluded states from regulating anything relating to a vehicle’s emissions-control 

system in any way, including post-sale tampering by the manufacturer. We 

disagree. 

{¶ 18} Congress has told us exactly what it meant to include within the 

scope of the Clean Air Act’s express-preemption provision in 42 U.S.C. 7543(a): 

“new motor vehicles” and “new motor vehicle engines.” It has also defined both 

of those terms. 

{¶ 19} A “new motor vehicle” is defined as “a motor vehicle the equitable 

or legal title to which has never been transferred to an ultimate purchaser.” 42 

U.S.C. 7550(3). A “new motor vehicle engine” is defined similarly as “an engine 

in a new motor vehicle or a motor vehicle engine the equitable or legal title to which 

has never been transferred to the ultimate purchaser.” Id.

{¶ 20} Congress has also helpfully defined the term “ultimate purchaser,” 

as it is used in 42 U.S.C. 7550(3), as “the first person who in good faith purchases 

such new motor vehicle or new engine for purposes other than resale.” 42 U.S.C. 

7550(5). 

{¶ 21} Taken together, the plain text of the applicable statutes indicates that 

after a new motor vehicle or new motor-vehicle engine is first sold, the expresspreemption clause in 42 U.S.C. 7543(a) no longer applies. In re Volkswagen 

“Clean Diesel” Marketing, Sales Practices, & Prods. Liab. Litigation (“In re 

Volkswagen”), 959 F.3d 1201, 1216 (9th Cir.2020). Put differently, the Clean Air 

Act expressly preempts only state and local laws regulating or setting vehicleemissions standards for new motor vehicles and new motor-vehicle engines. See

42 U.S.C. 7543(a). 

{¶ 22} In this case, the relevant Ohio statute, R.C. 3704.16(C)(3), provides 

that “[n]o person shall knowingly * * * [t]amper with any emission control system 

installed on or in a motor vehicle after sale, lease, or rental and delivery of the 

vehicle to the ultimate purchaser, lessee, or renter.” 
SUPREME COURT OF OHIO

 8

{¶ 23} Notably, R.C. 3704.16(C)(3) does not create or adopt any emissionscontrol standards and does not apply to new motor vehicles or new motor-vehicle 

engines. Instead, it applies only to conduct (tampering) that takes place after a 

vehicle has reached its “ultimate purchaser, lessee, or renter.” Consequently, R.C. 

3704.16(C)(3) does not fall within the scope of the federal Clean Air Act’s expresspreemption provision. 

{¶ 24} In an attempt to get around the plain text of these laws and to avoid 

the obvious conclusion that the federal Clean Air Act does not expressly preempt 

R.C. 3704.16(C)(3) and preclude anti-tampering claims under Ohio’s Air Pollution 

Control Act, Volkswagen calls our attention to the decisions in Allway Taxi, Inc. v.

New York, 340 F.Supp. 1120 (S.D.N.Y.1972), and Engine Mfrs. Assn. v. S. Coast

Air Quality Mgt. Dist., 541 U.S. 246, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004). 

Neither Allway Taxi nor Engine Mfrs. Assn., however, supports Volkswagen’s 

arguments or requires a different conclusion regarding the applicability of the 

express-preemption provision in Section 209 of the Clean Air Act, 42 U.S.C. 

7543(a). 

{¶ 25} To begin, the federal district court in Allway Taxi upheld a local 

ordinance that required taxi cabs operating in New York City to be equipped with 

emissions-control devices. 340 F.Supp. at 1122, 1124. In doing so, that court 

specifically stated that the definition of “new motor vehicles” provided in the Clean 

Air Act reveals a clear congressional intent to “preclude states and localities from 

setting their own exhaust emission control standards only with respect to the 

manufacture and distribution of new automobiles.” (Emphasis added.) Id. at 1124. 

In other words, the Clean Air Act prohibits states and local governments from 

“setting standards governing emission control devices before the initial sale or 

registration of an automobile.” (Emphasis added.) Id. So, although the Allway 

Taxi court cautioned that its decision should not be read to sanction the imposition 

of “emission control standards the moment after a new car is bought and 
January Term, 2021 

 9

registered,” id., it nonetheless read the Clean Air Act’s express-preemption 

provision as drawing a distinction between pre- and post-sale emissions 

regulations. 

{¶ 26} Next, nothing in the United States Supreme Court’s decision in 

Engine Mfrs. Assn. calls into question this pre- and post-sale distinction. In fact, in 

determining whether the Clean Air Act preempted rules regulating the types of 

commercial vehicles that could be purchased or leased within a particular region in 

California based on different emissions criteria, the court was careful to note that 

its decision did not answer whether 42 U.S.C. 7543(a) also preempts rules that 

apply “beyond the purchase of new vehicles.” (Emphasis added.) Engine Mfrs. 

Assn. at 259. Thus, Engine Mfrs. Assn. does not help this court to decide this 

particular case, which involves state-law claims under a statute governing post-sale 

conduct and used vehicles. 

{¶ 27} Accordingly, we hold that Section 209 of the federal Clean Air Act, 

42 U.S.C. 7543(a), does not expressly preempt R.C. 3704.16(C)(3) and preclude 

the attorney general’s anti-tampering claims. 

2. The Federal Clean Air Act Does Not Impliedly Preempt Ohio’s VehicleEmissions Anti-Tampering Law and Preclude the Attorney General’s Claims 

{¶ 28} In addition to its arguments regarding express preemption, 

Volkswagen also argues that claims brought under R.C. 3704.16(C)(3) are 

impliedly preempted by the Clean Air Act. According to Volkswagen, 42 U.S.C. 

7543(a) impliedly preempts Ohio law because R.C. 3704.16(C)(3) conflicts with 

and stands as an obstacle to the federal government’s ability to ensure continued 

compliance with its vehicle-emissions standards after a new motor vehicle or new 

motor-vehicle engine is sold and interferes with the federal EPA’s ability to bring 

and resolve enforcement actions. As with our conclusion regarding its expresspreemption arguments, we find these arguments unpersuasive. 
SUPREME COURT OF OHIO

 10 

{¶ 29} Again, arguments calling for a finding of implied preemption, “like 

all preemption arguments, must be grounded ‘in the text and structure of the statute 

at issue.’ ” Garcia, ___ U.S. at ___, 140 S.Ct. at 804, 206 L.Ed.2d 146, quoting 

CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 

387 (1993). It is therefore not enough to claim that a state law is impliedly 

preempted by simply ascribing “unenacted purposes and objectives to a federal 

statute.” Virginia Uranium, Inc. v. Warren, ___ U.S. ___, 139 S.Ct. 1894, 1907, 

204 L.Ed.2d 377 (2020). Instead, an actual conflict between the state and federal 

law is required. Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 884, 120 S.Ct. 

1913, 146 L.Ed.2d 914 (2000), citing English, 496 U.S. at 78-79, 110 S.Ct. 2270, 

110 L.Ed.2d 65. For Volkswagen, the lack of an actual conflict is the problem with 

its argument here. 

{¶ 30} First, although it is true that the Clean Air Act contains provisions 

that apply post-sale and provide the federal government with tools to ensure 

continued compliance after a new motor vehicle or new motor-vehicle engine is 

sold, Ohio’s anti-tampering law does not stand as an obstacle to the federal scheme 

or make it impossible to comply with that scheme. 

{¶ 31} Indeed, Ohio’s law specifically makes it possible to comply with it 

and the federal scheme by stating that it is not a violation of R.C. 3704.16(C)(3) if 

the conduct in question is “taken for the purpose of repair or replacement of the 

emission control system or is a necessary and temporary procedure to repair or 

replace any other item on the motor vehicle and the action results in the system’s 

compliance with the ‘Clean Air Act Amendments.’ ” R.C. 3704.16(E)(1). 

{¶ 32} Importantly, that means that Ohio’s law does not conflict with the 

federal vehicle-warranty statute, 42 U.S.C. 7541(a)(1), federal vehicle-recall 

procedures, 42 U.S.C. 7541(c)(1), or federal useful-life requirements, 42 U.S.C. 

7521(a)(1) and (d). It also means that Volkswagen’s fears that it will be punished 
January Term, 2021 

 11 

for actions taken in response to EPA guidelines or for modifications approved by 

the EPA are unfounded. 

{¶ 33} The bottom line here is that as long as Volkswagen complies with, 

rather than circumvents, federal law it will have nothing to worry about in Ohio 

regarding actions brought under R.C. 3704.16(C)(3). By definition, under these 

circumstances, there is no conflict between the relevant federal and state statutes or 

any obstacle to Congress’s objectives. 

{¶ 34} We also disagree with Volkswagen that there is a conflict between 

federal and Ohio law merely because the Clean Air Act also prohibits emissionscontrol tampering, see 42 U.S.C. 7522(a)(3)(A), and punishes that conduct, see 42 

U.S.C 7524(a). To begin, the fact that there is some overlap between the state and 

federal provisions does not automatically indicate that the applicable state law is 

impliedly preempted. Garcia, ___ U.S. at ___, 140 S.Ct. at 806-807, 206 L.Ed.2d 

146. Likewise, it is no problem for preemption purposes that emissions-control 

tampering is punished under both Ohio and federal law. As a matter of fact, it has 

long been settled that a state government may punish conduct that the federal 

government also punishes. California v. Zook, 336 U.S. 725, 731, 69 S.Ct. 841, 93 

L.Ed. 1005 (1949), quoting United States v. Marigold, 50 U.S. 560, 569, 13 L.Ed. 

257 (1850) (“ ‘the same act might, as to its character and tendencies, and the 

consequences it involved, constitute an offence against both the State and Federal 

governments, and might draw to its commission the penalties denounced by either, 

as appropriate to its character in reference to each’ ”). 

{¶ 35} Moreover, and perhaps most significantly, the Clean Air Act does 

not suggest that Congress intended to shield vehicle manufacturers from state-law 

emissions-control-tampering liability. In re Volkswagen, 959 F.3d at 1223. 

Certainly, if Congress had wished to preclude states from punishing companies or 

persons for emissions-control tampering, it could have said so. After all, as the 

Ninth Circuit pointed out in In re Volkswagen, a number of states had laws on their 
SUPREME COURT OF OHIO

 12 

books prohibiting tampering with emissions-control systems in motor vehicles 

during the period in which Congress amended the Clean Air Act, id. at 1219-1220, 

and Congress did not make “any changes to the preservation of state authority,” id. 

at 1220. Because we can presume that Congress was aware of those state laws 

when it amended the Clean Air Act, see Goodyear Atomic Corp. v. Miller, 486 U.S. 

174, 184-185, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988), its silence on the issue is 

“ ‘powerful evidence that Congress did not intend’ to preempt local anti-tampering 

laws,” In re Volkswagen at 1220, quoting Wyeth v. Levine, 555 U.S. 555, 575, 129 

S.Ct. 1187, 173 L.Ed.2d 51 (2009). 

{¶ 36} Finally, we reject Volkswagen’s argument that the potential 

imposition of state-law penalties under R.C. 3704.06 makes it impossible for the 

federal EPA to administer its vehicle-emissions program or interferes with the 

federal EPA’s ability to resolve enforcement actions. 

{¶ 37} First of all, it is not impossible for a violator to pay federal penalties 

and state-law penalties relating to the same conduct, so exposure to liability at the 

state level does not necessarily frustrate the purpose of the federal scheme. See

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 257, 104 S.Ct. 615, 78 L.Ed.2d 443 

(1984). The fact that such penalties might be considerable when aggregated, as 

Volkswagen contends, does not change that conclusion. California v. ARC Am. 

Corp., 490 U.S. 93, 105, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989) (“Ordinarily, state 

causes of action are not pre-empted solely because they impose liability over and 

above that authorized by federal law”). 

{¶ 38} Additionally, there is no evidence that the potential for liability 

under Ohio’s anti-tampering law actually frustrates or interferes with the federal 

government’s interests in any way. In fact, despite the likelihood of subsequent 

actions by states and local governments here, the federal EPA was tellingly able to 

resolve its case against Volkswagen. The mere possibility that future enforcement 

actions might be slightly more difficult because of a defendant’s potential exposure 
January Term, 2021 

 13 

to dual liability does not provide a basis for this court to hold that Ohio’s antitampering law is preempted and that the attorney general’s claims here are 

precluded. Garcia, ___ U.S. at ___, 140 S.Ct. at 807, 206 L.Ed.2d 146, quoting 

United States Constitution, Article VI, cl. 2 (“The Supremacy Clause gives priority 

to ‘the Laws of the United States,’ ” not the “enforcement priorities or preferences 

of federal officers”). 

{¶ 39} Since “as in any field of statutory interpretation, it is our duty to 

respect not only what Congress wrote but, as importantly, what it didn’t write,” 

Virginia Uranium, ___ U.S. at ___, 139 S.Ct. at 1900, 204 L.Ed.2d 377, we cannot 

ignore these realities and manufacture a conflict that has no basis in the text and 

structure of the applicable state and federal statutes just because it would be 

advantageous for a particular party. We therefore conclude that Ohio’s antitampering law, R.C. 3704.16(C)(3), and the attorney general’s claims under that 

provision are not impliedly preempted by the federal Clean Air Act. 

III. CONCLUSION 

{¶ 40} For the reasons stated above, we hold that the federal Clean Air Act 

neither expressly nor impliedly preempts R.C. 3704.16(C)(3) or precludes an antitampering claim under Ohio’s Air Pollution Control Act for a manufacturer’s postsale tampering with a vehicle’s emissions-control system. Accordingly, we affirm 

the judgment of the Tenth District Court of Appeals. 

Judgment affirmed. 

DEWINE, STEWART, and DELANEY, JJ., concur. 

O’CONNOR, C.J., and KENNEDY, J., concur in judgment only. 

DONNELLY, J., dissents, with an opinion. 

PATRICIA A. DELANEY, J., of the Fifth District Court of Appeals, sitting for 

BRUNNER, J. 

_________________ 

DONNELLY, J., dissenting.
SUPREME COURT OF OHIO

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{¶ 41} I respectfully dissent from the majority’s holding that the federal 

Clean Air Act, 42 U.S.C. 7401 et seq., does not preempt the antitampering claim 

brought by appellee, the Ohio Attorney General, pursuant to Ohio’s Air Pollution 

Control Act, R.C. 3704.01 et seq. I would hold that appellant Volkswagen 

Aktiengesellschaft, d.b.a. Volkswagen Group and/or Volkswagen AG 

(“Volkswagen”), has met its burden of showing that the state-law claim is impliedly 

preempted by federal law. 

{¶ 42} Generally, there are two ways in which federal law may impliedly 

preempt state law: (1) the federal law is so comprehensive in scope that it occupies 

the entire field of the regulated activity (“field preemption”), or (2) the federal law 

and the state law are actually in conflict with each other (“conflict preemption”). 

Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d 919, 

¶ 7. Because the parties here have framed their arguments around conflict 

preemption rather than field preemption as a distinct matter, I will focus on the 

conflict-preemption aspect of the preemption doctrine. . 

{¶ 43} Within the category of conflict preemption there are two 

subcategories: (1) “impossibility preemption,” which applies when it is impossible 

to comply with both the state law and the federal law, and (2) “obstacle 

preemption,” which applies when the “state law ‘stands as an obstacle to the 

accomplishment and execution of the full purposes and objectives of 

Congress.’ ” English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 

L.Ed.2d 65 (1990), quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 

L.Ed. 581 (1941). Regarding impossibility preemption, given that the attorney 

general is seeking to penalize Volkswagen for its fraud against the United States 

Environmental Protection Agency (“EPA”) relating to motor vehicles that were 

certified by the EPA, motor-vehicle-emissions standards that were set by the EPA, 

and actions monitored by the EPA, and for violations that have already been 

penalized by the EPA, it is readily apparent that it was possible for Volkswagen to 
January Term, 2021 

 15 

have complied with both the Ohio and federal laws that prohibit tampering with 

motor-vehicle-emissions systems. Thus, obstacle preemption is the only type of 

conflict preemption that might apply in this case. 

{¶ 44} For Volkswagen’s violations of Title II of the federal Clean Air Act, 

which spanned about a decade and affected motor vehicles throughout the United 

States, the EPA carefully crafted a multibillion-dollar penalty that balanced a 

variety of financial and environmental factors pursuant to 42 U.S.C. 7524. In my 

view, the attorney general’s decision to seek an additional judgment that could total 

more than $1 trillion involves nothing more than the attorney general’s 

disagreement with the penalty that the federal government carefully crafted. In this 

immediate sense, I believe that there is a clear conflict between the federal and state 

objectives. And when considering the possibility of similar lawsuits from other 

states and municipalities across the United States, a broader conflict is apparent; 

such an action threatens to undermine the enforcement power of the EPA and 

thereby the efficacy of the entire federal scheme. Because the attorney general’s 

antitampering claims stand as an obstacle to the execution of the full purposes of 

Congress in the Clean Air Act, they are preempted by federal law. 

{¶ 45} The EPA plays a central role in the Clean Air Act, and its 

enforcement and penalty powers are crucial to the effectiveness of the federal law. 

In Title II of the Clean Air Act, Congress directs the EPA to “prescribe * * * 

standards applicable to the emission of any air pollutant from any class or classes 

of new motor vehicles or new motor vehicle engines.” 42 U.S.C. 7521(a)(l). In 

order for it to be able to follow that mandate, the EPA is empowered to set 

emissions standards for motor vehicles, 42 U.S.C. 7521(a)(l) and (3), establish 

emissions-control technology requirements, e.g., 42 U.S.C. 7521(a)(6), and 

regulate the use of emissions-control devices, 42 U.S.C. 7521(a)(4)(A). These 

exclusively federal standards apply throughout a vehicle’s “useful life,” 42 U.S.C. 
SUPREME COURT OF OHIO

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7521(a)(1), and the EPA is authorized to monitor vehicles and their manufacturers 

throughout that time, 42 U.S.C. 7541 and 7542. 

{¶ 46} In order for it to enforce the standards and regulations, the EPA is 

empowered by the Clean Air Act to conduct testing to ensure that new motor 

vehicles comply with the federal law as a prerequisite to certification and to refuse 

to certify vehicles that do not meet the requirements. 42 U.S.C. 7521(m); 42 U.S.C. 

7525. Even when a vehicle is no longer considered new under the Clean Air Act, 

the EPA requires the manufacturer to report any emissions-related defect that 

affects 25 or more of the vehicles of the same model year, 40 C.F.R. 85.1903, 

including defects in “software * * * which must function properly to ensure 

continued compliance with emission standards,” 40 C.F.R. 85.1902(b)(2). The 

EPA requires manufacturers to test a portion of the in-use vehicles that they 

manufactured, 40 C.F.R. 86.1845-04 and 86.1827-01, and if the vehicles fail those 

tests then the EPA may require the vehicles to be recalled, 42 U.S.C. 7541(c)(1). 

The EPA also has the power to bring civil enforcement actions against 

manufacturers for their violations of the federal law, 42 U.S.C. 7523 through 7525, 

including violations of the federal statute prohibiting tampering with a motor 

vehicle’s emissions system either before or after the sale of the vehicle, 42 U.S.C. 

7522(a)(3)(A). 

{¶ 47} The EPA’s central enforcement mechanism is its power to impose 

civil penalties pursuant to 42 U.S.C. 7524. The EPA may begin the penalty process 

either by filing suit in a federal court or by imposing an administrative penalty that 

may later be subject to judicial review. 42 U.S.C. 7524(b) and (c). Through either 

method, the goal is to determine an appropriate penalty amount by balancing 

various factors such as “the gravity of the violation, the economic benefit or savings 

(if any) resulting from the violation, the size of the violator’s business, the violator’s 

history of compliance * * *, action taken to remedy the violation, the effect of the 

penalty on the violator’s ability to continue in business, and such other matters as 
January Term, 2021 

 17 

justice may require.” 42 U.S.C. 7524(b) and (c)(2). It is in that method of enforcing 

the Clean Air Act and, particularly in its requirements for determining an 

appropriate penalty, that the conflict between the federal and Ohio laws is most 

apparent. 

{¶ 48} In crafting an appropriate penalty for a violation of Title II of the 

Clean Air Act, the EPA’s goal is to adequately deter future violations. But it must 

also balance the need for deterrence with factors such as the potential for the penalty 

to cause the manufacturer to go out of business, the need to not create precedent 

that adversely affects the EPA’s ability to enforce the law, and any relevant 

“competing public interest considerations.” United States Environmental 

Protection Agency, Clean Air Act Title II Vehicle & Engine Civil Penalty Policy, 

at 18-19, available at https://www.epa.gov/sites/production/files/2021-

01/documents/caatitleiivehicleenginepenaltypolicy011821.pdf (accessed June 9, 

2021) [https://perma.cc/95DE-8JMB]. Imposing a penalty so steep that it causes a 

manufacturer to go out of business might have the immediate negative effect of 

rendering the manufacturer unable to pay any of its penalties and a wider negative 

effect of wiping out a large swath of jobs from the United States automotive 

industry and making vehicles less affordable for United States citizens. Such 

effects would certainly go against the public’s best interests.

{¶ 49} Moreover, if states and municipalities are permitted to sue motorvehicle manufacturers based on admissions made when settling civil actions with 

the EPA, manufacturers will be deterred from making such admissions. The 

efficacy of the EPA’s rulemaking and enforcement powers would be severely 

reduced if manufacturers were to be disincentivized from cooperating with the EPA 

and other federal governmental entities. 

{¶ 50} Following Volkswagen’s cooperation with the federal government,

it entered into a plea agreement and consent decrees with the EPA in 2017, which 

required Volkswagen “to pay $4.3 billion in civil and criminal penalties, to invest 
SUPREME COURT OF OHIO

 18 

$2.0 billion in Zero Emission Vehicle technology, to recall and/or repair the 

affected vehicles, and to contribute $2.925 billion to an emissions mitigation trust.” 

In re Volkswagen “Clean Diesel” Marketing, Sales Practices, & Prods. Liab. 

Litigation, 264 F.Supp.3d 1040, 1044 (N.D.Cal.2017). Of the $2.925 billion that 

Volkswagen paid into the emissions-mitigation trust, over $75 million was 

allocated to the state of Ohio. The fact that the EPA was empowered by Congress 

through the Clean Air Act to reach such a large-scale settlement with Volkswagen 

regarding its nationwide misconduct—and the fact that the federal law obligates the 

EPA to craft a penalty that thoughtfully balances a multitude of competing 

interests—indicates to me that the attorney general’s seeking a potential additional 

$1 trillion penalty pursuant to Ohio’s Air Pollution Control Act, R.C. 3704.01 et 

seq., for a local portion of that same misconduct conflicts both with the EPA’s 

immediate authority and the longer-term goals underlying the federal law. 

{¶ 51} Courts in Alabama, Minnesota, and Tennessee have concluded that

similar antitampering claims filed in their respective states conflicted with the 

Clean Air Act, because the claims stood as an obstacle to the EPA’s effective 

execution of the purposes and objectives of the Clean Air Act. See State ex rel. 

Slatery v. Volkswagen Aktiengesellschaft, Tenn.App. No. M2018-00791-COA-R9-

CV, 2019 WL 1220836, *13 (Mar. 13, 2019); State of Alabama v. Volkswagen AG, 

279 So.3d 1109, 1128-1129 (Ala.2018) (“Alabama”); State by Swanson v. 

Volkswagen Aktiengesellschaft, Minn.App. No. A18-0544, 2018 WL 6273103, *6-

9 (Dec. 3, 2018). I recognize that one federal circuit court of appeals has come to 

the opposite conclusion. See In re Volkswagen “Clean Diesel” Marketing, Sales 

Practices, & Prods. Liab. Litigation (“In re Volkswagen”), 959 F.3d 1201 (9th 

Cir.2020). But this court is not required to follow those rulings, including any 

ruling of a federal circuit court. See State v. Burnett, 93 Ohio St.3d 419, 424, 755 

N.E.2d 857 (2001). We are free to determine which ruling is better-reasoned and 
January Term, 2021 

 19 

more persuasive, and I find the decisions from the courts in Alabama, Minnesota, 

and Tennessee more compelling. 

{¶ 52} I disagree with the view of the United States Court of Appeals for 

the Ninth Circuit, adopted by the majority here, that any conflict between the 

federal and state laws is rendered irrelevant by the fact that it is perfectly 

permissible in other circumstances for the same conduct to be punished by both the 

state and federal governments. In re Volkswagen at 1224-1225; see also majority 

opinion at ¶ 34-35, citing California v. Zook, 336 U.S. 725, 731, 69 S.Ct. 841, 93 

L.Ed. 1005 (1949), and United States v. Marigold, 50 U.S. 560, 569, 13 L.Ed. 257 

(1850). In Zook and Marigold, the United States Supreme Court rejected the notion 

that federal preemption of state law is implicated simply when the federal and state 

laws prohibit the same conduct and create the possibility of “double punishment.” 

Zook at 737 (regarding state and federal prosecutions for selling transportation of 

persons without an Interstate Commerce Commission permit); Marigold at 568-

569 (regarding state and federal prosecutions for counterfeiting). But the concern 

here does not implicate the mere possibility of double punishment; the concern is 

that punishment by the state will undermine the ability of the federal government 

to effectively enforce its environmental laws. In Marigold, the state criminal 

prosecution did not undermine any attempt by the federal government to negotiate 

with counterfeiters across the nation to reach a resolution that adequately penalized 

the counterfeiters but that still took into account the public’s interest in not crippling 

the entire counterfeiting industry; the prosecution simply sought to punish discrete 

conduct that was also punishable by federal law. The context of Marigold and Zook 

render the court’s holdings in those cases inapplicable to the case at hand. 

{¶ 53} The decisions by the courts in Alabama, Minnesota, and Tennessee 

more persuasively reason that state emissions-tampering lawsuits (like that at issue 

here) conflict with the federal Clean Air Act, because the penalties sought in such 

lawsuits would upset the balance that the EPA is both empowered and obligated to 
SUPREME COURT OF OHIO

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achieve when penalizing manufacturers under the federal law and undermine the 

EPA’s ability to achieve such a balance in the future. See Slatery at *13; Alabama 

at 1128-1129; Swanson at *8. Rather than having only the effect of exacting a 

double punishment against Volkswagen, the potential state sanctions here are “at 

odds with achievement of the federal decision about the right degree of pressure to 

employ,” and the inconsistency of the potential sanctions “undermines the 

congressional calibration of force,” Crosby v. Natl. Foreign Trade Council, 530 

U.S. 363, 380, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000); see also Alabama at 1126;

Swanson at *8. 

{¶ 54} The regulation of motor-vehicle emissions reflected in Title II of the 

Clean Air Act has been “a principally federal project,” and the exclusive federal 

regulation of motor-vehicle emissions is necessary in part because “the possibility 

of 50 different state regulatory regimes ‘raise[s] the spectre of an anarchic 

patchwork of federal and state regulatory programs, a prospect which threaten[s] to 

create nightmares for the manufacturers.’ ” Engine Mfrs. Assn. v. United States 

Environmental Protection Agency, 88 F.3d 1075, 1079 (D.C.Cir.1996), quoting 

Motor & Equip. Mfrs. Assn., Inc. v. Environmental Protection Agency, 627 F.2d 

1095, 1109 (D.C.Cir.1979). Allowing states like Ohio to individually regulate and 

penalize manufacturers for violations relating to motor-vehicle emissions 

undermines the EPA’s comprehensive and carefully balanced enforcement power 

and creates the anarchic patchwork of federal and state regulatory programs that 

the Clean Air Act is specifically designed to prevent. Accordingly, because the 

antitampering claims brought by the attorney general pursuant to R.C. 3704.01 et 

seq. undermine the purpose and efficacy of the federal Clean Air Act, they are 

preempted by federal law. 

{¶ 55} Because I would hold that the attorney general’s state-law claims are 

impliedly preempted by federal law and would reverse the judgment of the Tenth 

District Court of Appeals, I dissent. 
January Term, 2021 

 21 

_________________ 

 David Yost, Attorney General, Benjamin M. Flowers, Solicitor General, 

Michael J. Hendershot, Chief Deputy Solicitor General, and Aaron S. Farmer and 

Karia A. Ruffin, Assistant Attorneys General, for appellee. 

Reminger Co., L.P.A., Hugh J. Bode, and Jackie M. Jewell; and Sullivan & 

Cromwell, L.L.P., Robert J. Giuffra Jr., David M.J. Rein, Matthew A. Schwartz, 

and Judson O. Littleton, for appellants Volkswagen Aktiengesellschaft, d.b.a. 

Volkswagen Group and/or Volkswagen AG; Audi AG; Volkswagen Group of 

America, Inc., d.b.a. Volkswagen of America, Inc., or Audi of America, Inc.; 

Volkswagen of America, Inc.; and Audi of America, L.L.C. 

 Porter, Wright, Morris & Arthur, L.L.P., L. Bradford Hughes, and Elizabeth 

L. Moyo; and King & Spalding, L.L.P., and Joseph Eisert, for appellants Dr. Ing. 

h.c. F. Porsche AG, d.b.a. Porsche AG; and Porsche Cars North America, Inc. 

Arnold & Porter Kaye Scholer, L.L.P., Jayce Born, Jonathan S. Martel, and 

S. Zachary Fayne; and Kevin D. Shimp, urging reversal for amici curiae, United 

States Chamber of Commerce, Ohio Chamber of Commerce, and Alliance for 

Automotive Innovation. 

_________________