Clean Air Act Doesn't Preempt State Tort Claims

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Nov. 2 — The Clean Air Act doesn't preempt state tort claims, the Sixth Circuit ruled Nov. 2, further widening a federal court split on the issue.

The Second and Third circuits have also found that the Air Act doesn't preempt state tort claims, but the Fourth Circuit found that it does. Federal trial courts have come down on both sides.

Here, the Sixth Circuit will allow neighbors of a whiskey distillery to proceed with state law tort claims alleging that emissions from the facility caused “whiskey fungus” to grow on their property (29 TXLR 295, 4/3/14).

The appeals court affirmed a ruling by the U.S. District Court for the Western District of Kentucky.

Right to Wholesome Air

“This ruling is significant because it further validates, from a judicial perspective, what the text of the Clean Air Act plainly states: that common law causes of action are not preempted,” Stacey Myers, with Hunsucker Goodstein P.C., told Bloomberg BNA Nov. 2. Myers represents plaintiffs and defendants in environmental and hazardous waste litigation.

“Nuisance-type common law claims to address air pollution can be traced back for centuries, for example the Tennessee Supreme Court stated in a 2002 case that the right of citizens to wholesome air dates back to ‘before time of memory.’ When they said that, they were referencing a decision written in 1610,” Myers said.

“Congress knew how important it was for private property owners, and the public at large, to be able to address local threats to air quality independent of the federal regulatory structure, and so Congress specifically preserved common law claims when it drafted the Clean Air Act.”

Putative Class

A putative class of Kentucky residents who live near the distillery sued the operator, Diageo Americas Supply Inc., in 2012 (27 TXLR 728, 6/28/12).

The complaint alleged that ethanol emitted from Diageo's facilities during the whiskey aging process combines with condensation on the plaintiffs' property to “cause an invisible, naturally occurring fungal spore to ‘germinate' (start growing) and become a living organism, visible to the naked human eye.”

The plaintiffs sought compensatory and punitive damages for themselves and others similarly situated based on state tort theories of negligence, nuisance and trespass.

They also sought an injunction, arguing that Diageo can correct or abate its emissions by implementing control technology.

Diageo moved to dismiss, arguing that the plaintiffs' state law claims are preempted by the CAA.

The trial court denied Diageo's motion, finding no preemption, and certified its ruling for interlocutory appeal.

Third Circuit Persuasive

Citing the Third Circuit's ruling in Bell v. Cheswick Generating Station, 734 F.3d 188 (3d Cir. 2013), the Sixth Circuit affirmed.

“The states’ rights savings clause of the Clean Air Act expressly preserves the state common law standards on which plaintiffs sue,” the Sixth Circuit said.

“The clause saves from preemption ‘the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution,' except that the ‘State or political subdivision may not adopt or enforce any emission standard or limitation' that is ‘less stringent' than a standard or limitation under an applicable implementation plan or specified federal statute” (42 U.S.C. Sec. 7416), the court said..

“The states’ rights savings clause makes clear that states retain the right to ‘adopt or enforce' common law standards that apply to emissions,” the court said.

“The phrase ‘any requirement,' as used in the states’ rights savings clause, clearly encompasses common law standards.”

The court distinguished the Fourth Circuit's ruling in North Carolina ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291 (4th Cir. 2010).

Cooper, however, did not involve claims under the common law of the source state. Rather, Cooper involved claims against Alabama and Tennessee sources brought under North Carolina law,” the court said.

The Sixth Circuit issued a parallel ruling Nov. 2 finding no CAA preemption of state law trespass, nuisance and negligence claims (Little v. Louisville Gas & Elec. Co., 6th Cir., 14-6499, 11/2/15).

Judge John M. Rogers wrote the opinion.

William F. McMurry & Associates represented Merrick.

Hunton & Williams LLP represented Diageo Americas Supply.

To contact the reporter on this story: Peter Hayes at

To contact the editor responsible for this story: Jeffrey D. Koelemay at

For More Information

Full text of the opinion available at


Federal Claims Preempted

The U.S. Supreme Court has held that the CAA displaces federal common law claims (Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011)) (26 TXLR 707, 6/23/11), and that the Clean Water Act doesn't bar nuisance claims under state law (Int'l Paper Co. v. Ouellette, 479 U.S. 481 (1987)).

Among the courts that have directly addressed the issue, there is a split of authority.

Some courts have rejected preemption (Bell v. Cheswick Generating Station, 734 F.3d 188 (3d Cir. 2013) (28 TXLR 915, 8/22/13); In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 725 F.3d 65 (2d Cir. 2013) (28 TXLR 835, 8/1/13); Cerny v. Marathon Oil Corp., 2013 BL 274981, W.D. Tex., No. 13–562, 10/7/13) (applying Bell)).

Others have found that the CAA preempts state tort claims (North Carolina ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291 (4th Cir. 2010); Comer v. Murphy Oil USA, 839 F. Supp. 2d 849 (S.D. Miss. 2012); United States v. EME Homer City Generation LP, 823 F. Supp. 2d 274 (W.D. Pa. 2011) (26 TXLR 1247, 10/20/11)).

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