In two decisions released on November 2, 2015, Merrick, et al. v. Diageo Americas Supply, Inc. and Little et al. v. Louisville Gas & Electric Company; PPL Corporation, the U. S. Court of Appeals for the Sixth Circuit unambiguously held that the Clean Air Act (CAA) does not preempt state common law claims brought against regulated sources of air emissions in the same state.1 As we noted in a previous client alert and subsequent Environmental Law Reporter article,2 a facility that is otherwise in compliance with CAA emission requirements can still face lawsuits by neighboring landowners for traditional torts such as nuisance and trespass. Merrick and Little are not outliers but add to the foundation of precedent across the Second, Third, and Sixth Circuits, and Iowa Supreme Court.
When these cases first began being litigated, many practitioners and observers had expected courts to treat state common law claims the way the Supreme Court dealt with federal common law claims3—as being preempted by the CAA. In light of these decisions, emitting sources may want to reevaluate their compliance strategies, factoring in potential exposure to state common-law claims when reevaluating their compliance strategies.
Here are four things you need to know about the Sixth Circuit’s decisions:
- They were clear and unambiguous in authorizing state common law claims against sources within the same state.
The Sixth Circuit considered state common law standards to be “requirements” adopted by “States,” and as such, protected against preemption by the Clean Air Act states’ rights savings clause.4 No such savings clause exists in the CAA for either federal common law claims or state law claims brought against sources in other states; such claims are expressly preempted under the CAA.
- They could impact a wide variety of industrial and utility sources.
The decisions apply to state common law claims brought against a source within the same state. Cases have dealt with corn wet-mills, whiskey distilleries, coal-fired power plants, and MBTE contamination.5 The holdings in these cases could be applied to other regulated activities with dust, contamination or fugitive emission impacts transcending property boundaries.
- It will still be difficult for class action plaintiffs to certify their class in these types of cases.
Because the common law claims at issue in these cases—such as nuisance and trespass—are highly individualized determinations, a court may refuse to certify a putative class if the plaintiffs do not share the requisite commonality of...
