Volkswagen (VW) has been in the news lately after university researchers discovered its “clean diesel” emissions were as much as 40 times higher than EPA regulations allowed. VW apparently programmed its engine control unit (ECU) software to run on a more efficient setting—meeting EPA emission standards—while undergoing testing. But in normal use the software runs a different setting, boosting performance at the expense of emissions. The scandal caused the CEO to promptly resign, but the fallout is hardly over. What will this mean to agriculture?
Earlier this year there was a lot of debate about “technology protection measures” or “TPMs” that agricultural equipment manufacturers place on tractor, combine, and forage harvester’s ECUs. These TPMs make it illegal for owners of these machines to hack into and modify the engine management software, since that software is only licensed by John Deere and others and not sold to the buyers. Media outlets like WIRED and NPR chastised farm companies for using TPMs and taking away farmers’ rights to modify their software.
I wrote an article about this topic as well and asked if farmers should have “The Right to Tinker?”
I think VW’s diesel engine debacle will move the needle towards greater ag equipment manufacturer control of engine and software components. This means less control for farmers (although the trend was already moving that direction anyway) and away from farmers’ right to tinker with their equipment’s programming. The EPA could argue that the ease at which a few VW engineers reprogrammed diesel engines to boost performance at the expense of air emissions should be another reason why farmers should not be allowed to hack into their tractor’s ECU to customize the settings. VW’s actions make clear that the performance benefits to the hacking farmer who reprograms his diesel engine could be significant, but at the expense of air quality.
Farmers have always loved to tinker with their equipment, but VW’s conduct is going to make it that much harder.
For more information, the New York Times explains how VW cheated on emissions testing.
The ABA Journal explains that, in a world of transparency, companies often forget internal transparency. The Journal asks, “Where were VW’s lawyers?”
Todd Janzen grew up on a Kansas farm and now practices law with Plews Shadley Racher & Braun LLP, which has offices in Indianapolis and South Bend. He also serves as General Counsel to the Indiana Dairy Producers and writes regularly about agricultural law topics on his blog: JanzenAgLaw.com. This article is provided for informational purposes only. Readers should consult legal counsel for advice applicable to specific circumstances. Todd is currently serving as chair of the American Bar Association’s (ABA’s) Agricultural Management Committee, which is part of the ABA’s Section of Environment, Energy, and Resources.
Submitted by: Todd J. Janzen, Plews Shadley Racher & Braun LLP