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You Can Sue Air Polluters Under State Common Law, 6th Says

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By Casey C. Sullivan, Esq. on November 30, 2015 6:57 AM

The Clean Air Act might be massive, complex, and unwieldy, but it doesn't "occupy the field" of air pollution control, the Sixth Circuit reminded us in two decisions released earlier this month. As such, the Clean Air Act does not preempt state common law claims against polluters who are regulated under the Act.

Even if you're in compliance with federal rules and regulations, you can still be sued for pollution under state common law, the court found. The ruling puts the Sixth Circuit in line with precedent from the Second and Third Circuits, but veers slightly away from Supreme Court caselaw.

Clear Text, Clear Rulings, and Some Whiskey Fungus

The Second Circuit's ruling was not exactly ground breaking. The Clean Air Act directly states that "nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law" and that it does not prevent states for regulating air pollutants concurrently. In these two cases, Merrick v. Diageo Americas Supply and Little v. Louisville Gas & Electric, individuals sued polluters, in part, under state common law theories of negligence, nuisance, and trespass.

Plaintiffs alleged that Diageo Americas, a whisky distilling company, released ethanol vapor that covered neighboring properties in whiskey fungus. (America's best fungus.) In the second case, plaintiffs claimed that Louisville Gas & Electric power plant covered their properties in coal ash and dust. (Slightly less appealing that whiskey fungus.)

Both companies argued that those state torts were preempted by the Clean Air Act. The Supreme Court had ruled similarly in American Electric Power v. Connecticut, finding that the CAA preempted federal common law public nuisance claims. The key difference, of course, was that those claims relied on federal common law -- a disfavored body of law -- whereas here, the plaintiffs depended on state laws. Displacement of federal common law "is a natural occurrence" when federal statutory law is enacted, the Sixth explained. But it is not presumed that federal laws preempt their state counterparts, particularly when the Act explicitly preserves those state causes of action.

Lessons for Lawyers, Emitters

The rulings could open up regulated industries to increased state common law challenges. Mathew Morrison and Bryan Stockton, of Pillsbury Winthrop Shaw Pittman, distill the cases into four takeaways for attorneys and CAA-covered industries:

1. First, state common law claims were clear and unambiguous. Those can be expected to survive preemption challenges.

2. The rulings may have a wide impact. They "could be applied to other regulated activities with dust, contamination or fugitive emissions impacts," Morrison and Stockton write.

3. Class actions will still be tough. Common law claims of nuisance and trespass are extremely individualized, making class certification unlikely.

4. Don't expect SCOTUS to step in. Supreme Court review will be unlikely, so consider litigation exposure risks soon.

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