Establishment of the State Trust and the Indian Tribe Trust
The State Trust and Indian Tribe Trust (collectively, the “Trusts”) have been established by order of the United States District Court for the Northern District of California in accordance with a Partial Consent Decree on October 25, 2016 (“First Partial Consent Decree”) in re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation, MDL No. 2672 CRB (JSC) (Dkt. No. 2103-1), among Volkswagen AG, Audi AG, Volkswagen Group of America, Inc., and Volkswagen Group of America Chattanooga Operations, LLC (collectively, the “Settling Defendants”), the United States, and the State of California. In that case, the Court also entered a Second Partial Consent Decree (Dkt. No. 3228-1) on May 17, 2017 (the “Second Consent Decree”), among the Settling Defendants, Dr. Ing. h.c. F. Porsche AG, and Porsche Cars North America, Inc. (collectively, the “Defendants”), the United States, and the State of California. Pursuant to the First Partial Consent Decree and the Second Partial Consent Decree. (The First Partial Consent Decree and the Second Consent Decree are collectively, hereinafter referred to as the “Consent Decrees”).
The Defendants and Wilmington Trust, N.A. (the “Trustee”) have entered into an Environmental Mitigation Trust Agreement for State Beneficiaries (hereinafter, the “State Trust Agreement”) —i.e., for the 50 States, Puerto Rico, and the District of Columbia—and established the environmental mitigation trust described therein (the “State Mitigation Trust” or “State Trust”). They have concurrently entered into a separate Environmental Mitigation Trust Agreement for Indian Tribe Beneficiaries (hereinafter, the “Indian Tribe Trust Agreement”)—i.e., for federally-recognized Indian Tribes—and established the environmental mitigation trust described in that agreement (“Indian Tribe Mitigation Trust” or “Indian Tribe Trust”).
The State Mitigation Trust and the Indian Tribe Mitigation Trust were both approved by Court Order on September 19, 2017 (the “Approval Order”) and final fully-executed versions were filed with the Court on October 2, 2017, establishing October 2, 2017 as the Effective Date for each Trust pursuant to the terms of the Approval Order (the “Effective Date”).
Purpose and Funding of the Trusts
The Consent Decrees require the Defendants to establish the State Mitigation Trust and the Indian Tribe Mitigation Trust and to fund each of the State Trust and the Indian Tribe Trust with funds to be used for environmental mitigation projects that reduce emissions of nitrogen oxides (“NOx”) where the Subject Vehicles were, are, or will be operated (“Eligible Mitigation Actions”), and to pay for Trust Administration Costs as set forth in the State Trust Agreement and the Indian Tribe Trust, respectively.
The Defendants and the Trustee acknowledge that the purpose of the State Mitigation Trust and the Indian Tribe Mitigation Trust is to fulfill the Defendants’ environmental mitigation obligations under the First Partial Consent Decree and the Defendants’ environmental mitigation obligations under the Second Partial Consent Decree. All payments to and expenditures from the State Mitigation Trust and the Indian Tribe Mitigation Trust shall be for the sole purpose of fulfilling the Settling Defendants’ environmental mitigation obligations under the First Partial Consent Decree and the Defendants’ environmental mitigation obligations under the Second Partial Consent Decree, and for the costs and expenses of administering each trust as set forth in the State Mitigation Trust and the Indian Tribe Mitigation Trust.
The purpose of the State Trust and the Indian Tribe Trust is to expeditiously and efficiently fund Eligible Mitigation Actions to be proposed and administered by the Beneficiaries subject to the requirements of the Consent Decrees and the terms of each of the respective State Trust Agreement and Indian Tribe Trust Agreement and to provide funds for the administration and operation in accordance with the terms of the State Trust and the Indian Tribe Trust. As set forth therein, the goal of each Eligible Mitigation Action shall be to achieve reductions of NOx emissions in the United States.
Selection and Oversight of Eligible Mitigation Actions
In accordance with the terms of both the State Trust and the Indian Tribe Trust, each Beneficiary is responsible for selecting Eligible Mitigation Actions and certifying that any such Eligible Mitigation Action meets all the requirements of the State Trust or the Indian Tribe Trust, as applicable. The Trustee shall have no duty to monitor or supervise the use of Trust Funds paid in accordance with the Beneficiary’s Eligible Mitigation Action Certification (Appendix D-4) and Funding Direction forms or any Beneficiary’s compliance with an Eligible Mitigation Action. The Trustee may rely upon, with no further duty of inquiry, and shall be protected in acting upon, the certifications made by and delivered to it by the Beneficiaries. (See paragraph 3.5.4 of the Trusts). Each Beneficiary is responsible for oversight of the proposed Eligible Mitigation Action (see paragraph 5.2.7 of the Trusts) and each Beneficiary is required to maintain and make publicly available all documentation submitted in support of the each funding request and all records supporting all expenditures of Eligible Mitigation Action funds, subject to applicable laws governing the publication of confidential business information, together with an explanation of the procedure by which the Beneficiary shall make such documentation publicly available (see subparagraph 5.2.7.2 of the Trusts). Beneficiaries are also responsible for certifying that all vendors were selected in accordance with state or tribal public contracting laws, as applicable (see paragraph 5.2.5 of the Trusts).
Appointment and Duties of the Trustee
Wilmington Trust, N.A. has been appointed as the Trustee of each of the State Mitigation Trust and the Indian Tribe Mitigation Trust in accordance, respectively, with Paragraph 3.0 of each trust.
Following is a summary of some of the duties of the Trustee. For a complete list, please refer to the State Trust or the Indian Tribe Trust, respectively.
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To establish and maintain a public-facing website onto which it will post all materials as required by each of the State Trust Agreement and the Indian Tribe Trust Agreement
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To distribute Trust Assets for the purposes contemplated by each of the State Trust Agreement, the Indian Tribe Trust Agreement, and the Consent Decrees, including distributions of funds to Beneficiaries for approved Eligible Mitigation Actions
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To engage a professional investment manager to receive, manage, invest, reinvest, supervise, and protect the Trust Assets as provided in Paragraph 3.2 of the Trusts for the benefit of the Beneficiaries
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To maintain the books and records relating to the Trust Assets and income and the payment of expenses of and liabilities against each of the Trusts. The detail of these books and records and the duration the Trustee shall keep such books and records shall be such as to allow the Trustee to make a full and accurate accounting of all Trust Assets, as well as to comply with applicable provisions of law and standard accounting practices, including Generally Accepted Accounting Principles (“GAAP”).
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To file on behalf of the State Trust and the Indian Tribe Trust all required Tax Returns (which shall be completed in consultation with Tax Professionals), ensure compliance with withholding and reporting requirements, and pay any and all Taxes
Inquiries About the Trusts
The Trustee is happy to respond to inquiries where appropriate and as required by each of the State Trust and Indian Tribe Trust, in accordance with its duties under each of the Trusts. Inquiries to the Trustee that are beyond the scope of its duties, enumerated above, would best be answered by directing them to the appropriate external parties. To direct an inquiry to the Trustee, please do so by using the Contact Us page.
Questions regarding Eligible Mitigation Actions
If you have questions or would like more information regarding Eligible Mitigation Actions, please contact the Lead Agency contact(s) designated for each Beneficiary. This contact information will be posted, in time, on this website.