“The trouble with government regulation of the market is that it prevents capitalistic acts between consenting adults.” Robert Nozick, Philosopher and Author

“I cannot conceive of any vital disaster happening to this vessel. Modern shipbuilding has gone beyond that.” Captain Edward Smith, Captain of the Titanic

OK, I’ll say it up front: I tend to be libertarian in philosophical bent. Many car enthusiasts I encounter are. Before you fire off an angry email, please note that I used a small “l” in my first sentence … this article isn’t a political statement. But it is a philosophical statement about government regulation and the unintended consequences of such regulations. On the other hand, I admit I can also be recalcitrant, and sometimes there is good, evidence-based reasoning on why safety regulations are necessary. The trick is in striking a reasonable balance. Why am I writing an article about regulations and safety? Read on…

The eternal conflict between safety and liberty came to a head in my recent search and subsequent desire to purchase a particular BMW. We really wanted a second all-wheel drive vehicle for the winters here in the PNW. Our F250 is great, but the 335i and 135i are not suited to snow and ice, and while the i3S is serviceable with Blizzacks, it has its limits. We also had a desire to have a second vehicle which could tow, as we have both a horse trailer and a car hauler. Decent fuel economy was also a factor. It also helped that my wife’s eyes seemed to light up whenever we talked about X5d’s so … we began our search for a low mileage CPO 2018 X5d.

After several months of searching we found our unicorn. A sleek black 2018 model with only 23K miles at a local BMW dealer. An amazing find in the current market! We test drove it and loved it, and started the process to buy. However, there was a snag. Turns there was a recall for the EGR cooler that was upgraded from an inspection (which had been done) to one requiring EGR replacement, and therefore, it was actually against the law for the dealer to sell us the vehicle. And of course, there are no parts available right now. So “our” X5d sits in a forlorn section of the dealership that is reminiscent of the island of misfit toys. Except it’s the island of BMWs with N47 and N57 engines, as multiple models used the same EGR component and are all awaiting the recall to be accomplished.

Now, I understand the need for reasonable safety regulations. But initially, I have to admit, I was pretty perturbed. So, I did some research. Turns out, a small number of diesel BMW vehicles have, indeed, caught fire. Enough that South Korea fined BMW the equivalent of 10 million dollars in 2018 for not responding with a recall sooner (!). This did give me pause. But the percentages are also extremely small.

One source I read said it was estimated at 300 vehicles of 1.6 million worldwide. If true, that makes the chance of a fire 0.018%. So, definitely a real problem, but one that requires they must all be parked until they are fixed? Wait. Not all … just the ones the dealers have – the recall is apparently voluntary for all those on the road with their X5d’s (you know who you are, the ones I jealously see everywhere now that the Baader-Meinhof phenomenon (frequency illusion) has kicked in).

Despite that disparity, my real principle-based issue with external safety decisions like this are the unintended consequences, which I am not sure are ever fully considered. In this case, one is a loss of liberty consequence – the ability to execute a voluntary transaction between the dealer and I is prohibited.

The other is a hidden “tax” – because the BMW dealers around the country must impound these cars, it becomes unsold inventory and has overhead cost consequences to ALL BMW customers. Where is the right balance for a 0.018% risk? Ironically, a risk created by emissions components that were also government-mandated. (I could write a whole separate article about how adding things like EGR coolers and DPFs to diesel engines create more problems then they solve and reduce one of the main things diesels have going for them … reliability – but I won’t subject you to that.)

In the end, I do understand the reasons for the stop sale, even if I don’t quite agree that the level of risk required it. I suppose I’m just a grumpy guy harrumphing about not being able to buy another BMW. Plus, I just wrote a President’s column on waiting and being patient. So, I suppose I should try to take the high road here, avoid hypocrisy, and admit that determining the scope of recalls is probably hard, for car companies and for government regulators, and that maybe, just maybe, not every regulator has a chip on their shoulder to make my life personally harder and that they really do care about public safety. I just won’t be able to take that high road in an X5d anytime soon.