How Big Ag Weaponizes The Clean Air Act To Keep Its Repair Monopoly
Agricultural equipment giants like John Deere have used warnings about farmers subverting emissions controls to build profitable service and repair monopolies
Imagine this scenario: you’re driving on the highway one evening when, all of a sudden, your car begins to decelerate sharply while an angry, yellow “EMISSIONS” light on your dashboard begins to blink rapidly. You limp to the side of the road but find that your vehicle can’t go more than 5 miles per hour. Moreover, it is acting funny: the power steering, environmental controls and the radio are all disabled.
Check Engine…Or Else!
You leaf through the owner’s manual in the glove box, desperate to figure out what has happened. You learn that the “Emissions” light indicates that your vehicle has fallen out of compliance with the federal Clean Air Act regulations of auto emissions. “What?” you ask. “That doesn’t make sense. My car is just a year old!”
You are forced to wait on the side of a busy highway in the early morning hours for a technician from your dealer to come out and punch in a code to diagnose the problem. Alas, it looks like a sensor on your vehicle is malfunctioning. The dealer’s tech types in an override code to get your car moving again and you make an appointment at the dealer to get the sensor replaced. They name the price.
Absurd, right? Simply: that’s not how it works. Everyone who has owned an automobile knows the deal. The federal government (and also, California) sets auto emissions standards. Individual states are charged with making sure vehicles on their roads are compliant with them. Most rely on an annual emissions inspection regime to do that, for which they receive federal funding as an incentive.
Sure, systems on the car monitor emissions and alert the driver if something is amiss. In the end, though, it is up to the vehicle owners to keep their cars compliant with environmental laws, not the manufacturers.
Of course, this isn’t a perfect system. It is possible, after all, that your car may fall afoul of the emissions standards at any point between annual inspections and you can simply ignore the blinking light for as long as you can stand it. (And that may be a long time.) Your car doesn’t stop working, let alone strand you on the roadside.
And, even if you choose to ignore the warning, the automaker isn’t liable. They are responsible for manufacturing vehicles that can meet federal standards. Full stop. In no way are Ford, GM or Toyota deputized and asked to enforce the Clean Air Act or any other emissions standards on behalf of the federal government or the states. In fact, under the 1990 Clean Air Act, they must also provide dealers, owners and independent repair shops with the data and tools to monitor ongoing compliance with clean air rules. Pollution monitoring is democratized.
Follow the (Repair) Money
So why is it that, in the closely adjacent agricultural equipment market, things are so different?
After all, sales of farm equipment pale in comparison to passenger vehicles. There were 244,637 farm tractors sold in the U.S. in 2019, compared to 17.1 million passenger vehicles. Exhaust from transportation accounts for 28% of U.S. greenhouse gas emissions. Agriculture accounts for just 9%, according to the EPA. And yet, today, a deep and (literally) paralyzing concern about emissions from farm equipment seems to agitate agricultural equipment makers to the point that they willingly cripple their customers’ $200,000 harvesters and combines in the field the moment they detect that the machinery may have fallen afoul of emissions standards.
What’s going on? Well, as a new report by the folks at the U.S. Public Interest Research Group (US PIRG) points out: agricultural equipment makers’ hard line on emissions isn’t about loving the planet. Rather, its the point of the spear in a decades-long campaign to build after market parts, maintenance and repair monopolies.
In hearing rooms across the U.S., Big Ag scare mongering about emissions bypasses and pollution is being used to try to kill state-level right to repair laws that seek to give farmers the tools and information needed to service and repair their own equipment. Industry lobbyists warn lawmakers that providing owners with tools to diagnose and fix problems with their equipment will enable them to disable emissions control systems on the devices.
Farmers are caught in the crosshairs. For example, that report relates the experience of Andrew McHargue of Chapman, Nebraska.
“When error codes from a balky emissions system sent McHargue’s 2014 tractor—which cost him $300,000 when he bought it new—into limp mode in the middle of planting season, his machine was down for an entire week. Over the years he used the machine, McHargue spent $8,000 to have the dealership periodically “clear” these error codes before eventually buying an older tractor without these issues, costing an additional $160,000. As of March 2020, McHargue had been unable to sell the 2014 tractor.”
Stories like McHargue’s aren’t hard to come by, either. Kevin Anderson, a 5th generation farmer in Somerset County Maryland told a Committee considering right to repair legislation in the Maryland House of Delegates in January that his company spent $138,000 in 2020 on repair and maintenance alone. Prices for repair run upwards of $100 an hour, including milage and service fees, Anderson told the committee.
Its the scarcity, stupid
Multiply that kind of repair lucre over hundreds of thousands of U.S. farmers and you end up with a big pile of money. As the PIRG report notes: company filings by Deere indicate that services and repair are a growing share of its revenue and have been as much as three to six times as profitable as new equipment sales. For example, between 2013 to 2019, annual sales of parts by Deere increased by 22% to $6.7 billion while annual sales of equipment fell by 19% to $23.7 billion.
For farmers, the cost of repair isn’t even the biggest concern. Scarcity is.
Anderson told the Maryland Delegates in January that, in his part of the state, 30 farmers are served by a single repair technician.
“With each staffing shortage and lack of resources, I grow more concerned about the impact on my operation. Agriculture is critical. Failure to meet windows of opportunity can have serious implications,” he said. Dealers and manufacturers like John Deere were well aware of the service labor shortage, but were unwilling to “step outside their existing structure,” Anderson told lawmakers.
Clean Air Fan Fiction
So what gives? At the heart of big Ag’s strategy is a rather fanciful reading of U.S. environmental law. As with automakers, nothing in the original Clean Air laws of 1970 and 1977 or the updated Clean Air Act that passed in 1990 requires heavy equipment makers like John Deere to enforce emissions standards. As this FAQ from the EPA’s Office of Transportation and Air Quality indicates, the responsibilities of manufacturers and owners are pretty clear.
“Manufacturers must ensure that each new engine, vehicle, or equipment meets the latest emission standards. Once manufacturers sell you a certified product, no further effort is required to complete certification.”
In other words, assuming the engine meets the latest emissions standards when it is manufactured, it is compliant with the law. The owner’s responsibility under law is simply not to mess with the pollution controls that the manufacturer installed. From the FAQ: “a key part of the regulations that applies to you is the tampering prohibition—you may not disable any emission controls installed on certified engines, vehicles, or equipment.” According to EPA, that includes “removing emission control devices, adding or modifying hardware or software that increases emissions (of any pollutant), reprogramming onboard computers, or operating engines without any needed supplies such as Diesel Exhaust Fluid.”
Under the Clean Air Act, equipment and car manufacturers aren’t expected to prevent their customers from violating the law. As with many other regulations (not to mention the tax code): it’s up to you to obey the law.
Manufacturers can help. EPA notes that OEMs may “explain in their owner’s manual what type of emission controls exist for each model; they may also specify some minor maintenance that must be done to keep emission controls working properly.” That sounds reasonable.But any notion that OEMs are on the hook to enforce the Clean Air Act in perpetuity is fiction. Furthermore, the idea that owner repair is somehow antithetical to the spirit of the Clean Air Act is also not supported by the language or spirit of the law. In fact, the EPA provides detailed guidance on rebuilding and maintaining engines to EPA standards (PDF) - proof enough that repair and emissions monitoring are not in tension.
Fear Served Three Ways
So what’s going on? Big Ag’s focus on emissions is part of a three legged “scare” strategy to keep right to repair laws off the books. Along with disabled emissions monitoring systems, the other two legs are physical safety and intellectual property theft. For example, OEMs readily conflate right to repair laws demanding access to software updates (that is: patches) to requiring access to manufacturer “source code,” even though there is no such requirement in the proposed laws.
When scare mongering over emissions, OEMs use the same tactic. As Kevin Anderson, the Maryland farmer pointed out, right to repair laws like the one proposed in that state cover equipment manufactured starting in 1996, long before stringent “Tier 4” emissions standards were in place. Also, engine emissions are just one small component of complex agricultural equipment, yet OEMs seek to ban access to any and all repair and diagnostic information.
“My combine has 15 on-board computers. Only one controls the engine and emissions,” Anderson told the Maryland delegates. “Even with concern about emissions tampering, why can’t I work on the other 14 (computers)?”
The bare truth is that limiting access to repair and diagnostic tools is about maintaining a lucrative monopoly on parts and service, not about clean air. As VICE reported, even limited promises by manufacturers and industry groups like AEM to make service and repair tools and data available to farmers haven’t yielded anything in three years. Farmers are still denied access to the software and information needed to diagnose and fix problems on their equipment and forced to rely on scarce and expensive authorized service providers at a cost of thousands of dollars for even simple repairs. That is unless the farmer is looking to fix a toy John Deere tractor, in which case the company has a fully outfitted repair station for sale. File that one under: irony.