What's Old Is New Again: State Common-Law Tort Actions Elude Clean Air Act Preemption

• Date: 01 April 2015

45 ELR 10282 ENVIRONMENTAL LAW REPORTER 4-2015

What’s Old Is New Again:

State Common-Law Tort Actions

Elude Clean Air Act Preemption

by Matthew Morrison and Bryan Stockton

Matthew Morrison is a Partner, and Bryan Stockton is an Associate, with Pillsbury Winthrop Shaw Pittman LLP, where they work

in the rm’s Environment, Land Use, and Natural Resources practice in Washington, D.C. Mr. Morrison was formerly a Deputy

Director in EPA’s enforcement program and a Senior Counsel in the Environmental Enforcement Section of the Justice Department.

I. Introduction

It usually takes at least three to start a trend, but two

recent appellate-level decisions suggest a new air pollution

enforcement trend is in the making: Environmental plain-

tis may be able to avoid Clean Air Act (CAA)1 preemption

by bringing state common-law tort claims against an intra-

state emitting source. e plaintis in both Bell v. Ches-

wick2 and Freeman v. Grain Processing Corp.3 successfully

convinced the U.S. Court of Appeals for the ird Circuit

and the Iowa Supreme Court, respectively, that the CAA

did not preempt their tort claims based on state common

law. e result—as well as the U.S. Supreme Court’s denial

of certiorari in both cases—surprised observers because the

Supreme Court has held previously that the CAA preempts

similar tort claims based on federal common law.4

If other courts follow t he precedent set by these two

decisions, an emissions source that is other wise in compli-

ance with all state and federal air permits and regulations

may still be found liable for state common-law nuisance,

negligence, or trespass claims. Two pending appeals5 in the

U.S. Court of Appeals for the Sixth Circuit could make the

trend complete; or, if the Sixth Circuit decides dierently

1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

2. 734 F.3d 188, 43 ELR 20195 (3d Cir. 2013),   , No.

12-4216 (3d Cir. Sept. 23, 2013), cert. denied sub nom. GenOn Power Mid-

west, L.P. v. Bell, 134 S. Ct. 2696 (2014).

3. 848 N.W.2d 58 (Iowa 2014), cert. denied, No. 14-307, 2014 WL 4542764,

at *1 (U.S. Dec. 1, 2014).

4. American Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 41 ELR 20210

(2011).

5. Little v. Louisville Gas & Elec. Co., No. 3:13-CV-01214-JHM, 44 ELR

20171, 2014 WL 3547331 (W.D. Ky. July 7, 2014), appeal docketed, No.

14-0508 (6th Cir. Dec. 12, 2015); Merrick v. Diageo Americas Supply, Inc.,

No. 3:12-CV-334-C, 44 ELR 20078 (W.D. Ky. Mar. 19, 2014), appeal

docketed, No. 14-0505 (6th Cir. Oct. 1, 2014). Defendants petitioned the

court to assign both appeals to the same merits panel. See Defendant-Ap-

pellant Diageo Americas Supply, Inc.’s Motion to Coordinate for Purposes

of Merits Panel Assignment and Oral Argument, No. 14-6198 (Feb. 20,

2015).

than the ird Circuit, the resulting circuit split could

position the issue for Supreme Court review.

It is too early to a scertain t he full impact of these deci-

sions, however, and recent rulings in other class action

cases suggests that courts may be hesitant to certify classe s

of plaintis with injuries that vary signicantly from one

plainti to another. Nevertheless, by resorting to torts that

date back over 400 years, plaintis may open the door to

litigation against facilities that a re otherwise meeting their

regulatory obligations. e common-law exposure is par-

ticularly daunting where the regulatory landscape remains

unsettled, such as greenhouse gas (GHG) emissions and

hydraulic fracturing, making risk management for emit-

ting sources a very complicated endeavor.

II. A Developing Trend in Air Pollution

Enforcement

A. Traditional Enforcement Role of Common Law

Narrows as Environmental Regulation Expands

Until the 1970s, individuals and states frequently used

state common-law torts such as nuisance to protect the

environment and individual property rights. According

to commentators, “the deepest doctrinal roots of modern

environmental law are found in principles of nuisance....

[N]uisance theory and case law is the common law back-

bone of environmental and energy law.”6

e CA A established a complex regime of cooperative

federalism, with states and the federal government regulat-

ing certain air pollutants. Two saving clauses in the C AA

preserved cert ain causes of action for states and individu-

als, respectively. e states-rights saving clause a llows

states to set more stringent air quality levels: “[E]xcept as

6. W H. R J., H  E L §2.1, at

100 (2d ed. 1977).

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.