The Real Emissions Assessment Logging (REAL) program adopted by the California Air Resources Board (CARB) expands CARB’s ability to collect emissions data from all covered vehicles, and may lead to an increase in enforcement actions against vehicle owners subject to the program.  Under this program, On-Board Diagnostic (OBD) system software, which notifies drivers when emissions control components are malfunctioning, will be modified to track and collect NOx emissions data from all medium- and heavy-duty diesel vehicles, starting with 2022 model year vehicles.  All in-use heavy-duty vehicles will also be required to collect and store fuel consumption data, from which CARB will estimate CO₂ emissions.

The REAL program is a leap from previous regulations that merely permitted CARB to bring a select few vehicles in for emissions testing, or required installation of Portable Emissions Measurement Systems (PEMS).  Now, all vehicles subject to the REAL program will continuously store data during their day-to-day use.  The emissions data will be periodically collected by CARB by scan tools or data readers.

Regulations requiring this level of monitoring and collection raise questions of constitutionality.  The Fourth Amendment’s prohibition of unreasonable searches has been used to challenge emissions inspection programs throughout the United States, most notably in a 1979 case from Arizona.  In State of Arizona v. Burns, 121 Ariz. 471 (Ct. App. 1979), Arizona’s Court of Appeals examined the question of whether a program requiring individuals to bring in vehicles for regular emissions tests was an unconstitutional search under the Fourth Amendment to the United States Constitution.  In its analysis, the Burns court focused on Arizona’s asserted interest in ensuring air quality protections, holding that such an interest outweighed any intrusions upon vehicle owners’ privacy interests.  The court went on to even characterize the program as “consensual,” reasoning that individuals choose whether to own and operate vehicles covered by the regulatory program.

While the Burns decision is not binding authority in California, it demonstrates the possible considerations a California court may find persuasive in a constitutional challenge to the REAL program.  In fact, the Burns court’s holding was cited in a similar case in Maryland:  DOT., Motor Vehicle Admin. v. Armacost, 299 Md. 392 (1984).  In Armacost, the Maryland Court of Appeals determined that a vehicle emissions test did not infringe on a Fourth Amendment right because there was no privacy interest in things “knowingly exposed to the public.”  When the lack of such a privacy interest was coupled with the strong state interest in ensuring clean air, the court concluded that the program was constitutional.  Notably, there is little subsequent jurisprudence on these issues, which suggests that a California court would likely not reach a contrary decision in the context of the REAL program.

Regardless, questions remain regarding the REAL program, such as its practical impact on the regulated community.  We expect the effects of the REAL program will be largely determined by a myriad of factors, such as the frequency that CARB requires submittal of, or gains access to, data collected under the program as well as how aggressively enforcement actions will be pursued in instances of noncompliance.  One thing, however, is clear:  the increasing extent of air quality regulations imposed by CARB has the potential to dramatically change the nature of medium- and heavy-duty diesel vehicle compliance and enforcement actions for years to come.

A copy of the Press Release is here.

A copy of the Staff Report is here.

For more information on REAL, the OBD Regulations, and other air-related issues, please contact Alyson E. Ackerman at aackerman@somachlaw.com or 916-469-3843, or Michael E. Vergara at mvergara@somachlaw.com or 916-469-3824.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.