Politico: In restricting repair, John Deere may be violating the Clean Air Act, advocates allege
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In restricting repair, John Deere may be violating the Clean Air Act, advocates allege
The farm equipment manufacturer prevents users of its equipment from repairing the machine’s emissions control systems other than via authorized dealerships.
Nonprofit organizations U.S. PIRG and Repair.org are calling on the Environmental Protection Agency to investigate John Deere for the alleged violations | Gene J. Puskar/AP Photo
By MARCIA BROWN
07/22/2022
Consumer advocates are alleging that John Deere & Co., the nation’s largest tractor maker, has repeatedly violated the Clean Air Act by limiting repair of its machines’ emissions control systems solely to authorized John Deere dealerships.
The Clean Air Act requires companies to provide the necessary information, including software, to repair emissions control systems in vehicles and confirm that the company is doing so in annual EPA certification filings, the advocates say. By denying farmers and independent technicians the source codes and other software necessary for repair, advocates say the tractor giant is in violation of the law — and has been since the regulation was first finalized in 2004.
Nonprofit organizations U.S. PIRG, a consumer protection group, and Repair.org, which advocate for legislation protecting consumers’ ability to repair and modify products they own, are calling on the Environmental Protection Agency to investigate Deere for the alleged violations and, if found in violation, bring the company into compliance.
The EPA declined to comment on potential enforcement matters and did not immediately offer comment on the veracity of the allegations.
John Deere did not respond to a request for comment.
But in testimony and other public statements, the company has said that the reason they restrict access to the emissions control systems is because farmers may delete the emissions software, which Deere says is a violation of the Clean Air Act. Rather than deal with emissions systems that sometimes break down, farmers may view deletion as an easier option, the company says. Farmers and activists said this argument is a red herring.
“Because of repair restrictions, farmers are left with two bad choices,” said Kevin O’Reilly, director of U.S. PIRG’s Campaign for the Right to Repair. “They can rely on the dealer and deal with lengthy delays and inflated repair costs or they can turn to a black market solution and … override those controls … You shouldn’t have to wait and pay more or break the law.”
The tractor giant has long faced complaints from farmers and their advocates over the company’s restrictions on who can repair their machines. In recent months, John Deere has faced down shareholder scrutiny, a complaint to the Federal Trade Commission, and is named in 17 class action lawsuits regarding their limits on repairs.
“This is a strategy of repair monopolization that we’ve seen Deere engage in for a long time,” said O’Reilly. “There are a number of different types of repair that farmers simply don’t have access to do themselves and the emissions control system and the emissions module is a big part of that.” A former attorney in the Office of General Counsel at the EPA and expert on the Clean Air Act, who did not want to be quoted by name without more facts on the case, analyzed the advocates’ allegations and agreed with their interpretation of the law.
The attorney said, “It is clear that federal law requires that … people will be able to take [this
type of equipment] to a shop or person of their choosing for repairs and that John Deere and all the manufacturers have to show they’re meeting a whole set of requirements for certification,” including this requirement of the maintenance instructions for purchasers [MB2].
But Ron Tenpas, a former assistant attorney general for the Environment and Natural Resources Division of the Department of Justice, said that the language may not be so clear. The statute’s language “seems primarily focused on insisting that equipment makers don’t tell customers, such as in a product manual, that the customer must absolutely use a Deere dealership for service,” Tenpas said. “But the [advocates’] claims here seem more focused on allegations that Deere is not making available software that may be useful in repairs. It’s not clear that [the law] prohibits that behavior.”
Tenpas acknowledged the ongoing fight between John Deere and its customers. “It seems what customers and independent repair services are really unhappy about is what they regard as an unfair competitive practice that they think Deere has adopted to control the market for repair services,” he said. This angle, he added, is “an interesting concern but I’m not sure that the Clean Air Act regulations really address the specific activities they are complaining about.”
Advocates, however, maintain that the intent of the law is clear. “We want the intent of the law, i.e. people to be able to repair, maintain or replace their emissions system” which would require John Deere making available to customers the diagnostic and repair software that’s currently only available to dealers, explained Willie Cade, an advocate for agricultural Right to Repair and Repair.org board member. In March, Deere announced it would sell the software that enables diagnostics and repairs to customers. But farmers and advocates have said that doesn’t go far enough.
The status quo, for example, does not allow farmers to use the software to diagnose and repair problems with the emissions systems. The program currently sells for $3,115 for a 1-year subscription. Cade argues that the fact the company is selling the software, rather than making it available for free, is an example of the company’s violation of the spirit of the law.
The problem has grown so acute that some farmers are turning to older tractor models with less advanced technology because they know they can repair them. Walter Schweitzer, president of the Montana Farmers Union, said in an interview he recently purchased a tractor with 12,000 hours on it because “I knew I could fix it myself.”
Compounding the challenges, consolidation at the dealership level has intensified, according to a U.S. PIRG report from February. For every 12,018 farms and 5.3 million acres of farmland, there is just one John Deere dealership chain, the report found. Schweitzer said that when he first started farming there were half a dozen family-owned Deere dealerships within an hour’s drive of his ranch. Now there are just three in all of Montana.
Consolidation is also a major issue at the manufacturing level, with just three major companies dominating the North American market for large tractors, Deere, CNH, and AGCO. Deere controls 53 percent of the North American market for large tractors and 63 percent of the market for combines.
The emissions system is central to the functionality of these pricey machines, which retail for around $300,000.
“The emissions are all part of your tractor being operational,” explained Schweitzer. “If there’s an issue with your emissions it will send error codes and in some cases it will put your tractor or combine into ‘limp mode,’ which is that it allows you to ‘limp’ it back to the shop or onto a trailer for repair.”
Advocates view the push for more flexibility on tractor emissions repairs as an opportunity for regulators to take swift action with an immediate impact. While the Right to Repair movement has gained rapid traction among farmers in the last few years, they have yet to notch many victories. In the last year, 21 state legislatures have proposed repair legislation that would include agriculture machines, but none have become law.
“It’s a rare opportunity for regulators to show up in the heartland and say ‘I’m from the EPA and I’m here to help,’” O’Reilly said.