In its landmark 2011 decision in American Electric Power Co., Inc. v. Connecticut, et al., 131 S.Ct. 2527 (2011), the U.S. Supreme Court held that the Clean Air Act (CAA) and the actions by the U.S. Environmental Protection Agency (EPA) it authorized displace – that is, preempt – “any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired plants.” Significantly, however, the American Electric Court expressly declined to extend its preemption holding to state common law nuisance suits. To date, only four reported decisions have addressed the state law preemption issue. Three have rejected preemption and one has embraced it.
Cases Rejecting State Law Preemption
The first case is In re: Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 725 F.3d 65 (2d Cir. 2013). Briefly, that suit arose from groundwater contamination allegedly stemming from the spillage and leakage from MTBE-treated gasoline stored in underground tanks. On the preemption issue, the defendant argued that amendments to the CAA enacted in 1990 requiring oxygenation of gasoline – with which the defendant complied by using MTBE – preempted any ensuing state law tort claims arising from groundwater contamination. The Second Circuit, however, rejected the argument.
The second case, Bell, et al. v. Cheswick Generating Station, et al., 42 ELR 20221, No. 2:12-cv-929, (W.D. Pa., 10/12/2012) involved a class action suit by property owners residing in the vicinity of a coal-fired power plant. In their complaint, the plaintiff class alleged that their properties had been contaminated by a variety of toxic substances emanating from the plant “on occasions to [sic] numerous to list.” The defendant plant owner moved to dismiss the suit on the ground that state tort liability was preempted by the CAA. The district court granted the motion, and on appeal the Third Circuit reversed, citing the “savings clause” language in the CAA preserving citizens’ rights to common law suits. In so ruling, the court highlighted the similarity between the savings clause language in the CAA and the Clean Water Act (CWA).
In the third and most recent case, the Supreme Court of Iowa rejected preemption in Freeman, et al. v. Grain Processing Corp., 2014 Iowa Sup. Lexis 72 (2014). Freeman arose from a state class action suit by homeowners residing in the vicinity of a corn wet-milling facility. They claimed that the facility’s operations caused “harmful pollutants...
