Sixth Circuit Says Clean Air Act Does Not Preempt State Common Law Claims

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled yesterday that the federal Clean Air Act does not preempt state common law claims.

The ruling was hardly a surprise, given the plain language of the CAA. Still, the case is a victory for those who seek to enforce clean air requirements through the higher standards of state common law. (The court emphasized several times that the CAA permits states to adopt more stringent standards than the federal standards.) The ruling also allows the plaintiffs' state common law case to move forward.

The case arose when neighbors of Diageo Americas Supply, Inc., a whiskey distiller, complained that ethanol vapors from the facility combined with condensation to propagate "whiskey fungus" on their property. The neighbors filed suit in federal court, alleging state common law caused of action. Diageo moved to dismiss, arguing that the CAA preempted these claims.

The Sixth Circuit rejected that argument. The court looked to the plain text of the Act, congressional purposes, and Supreme Court precedent--all of which pointed against preemption. But the case can be resolved on the text alone, in particular, the savings clause. As the court explained:

The states' rights savings clause of the Clean Air Act expressly preserves the state common law standards on which plaintiffs sue. 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.

The court went on to say that state courts are part of the "state," and that common law requirements are "requirement[s] respecting control or abatement or air pollution."

In addition to looking at text, purpose, and precedent, the court added a federalism point:

When Congress acts to preempt state law--especially in areas of longstanding state concern--it treads on the states' customary prerogatives in ways that risk upsetting the traditional federal-state balance of authority. This is why there is a strong presumption against federal preemption of state law, one that operates with special force in cases "in which Congress has legislated . . . in a field which the States have traditionally occupied." Environmental regulation is a field that the states have traditionally occupied. Accordingly, even if the express language of the states' rights savings clause here did not preserve state common law claims, principles of federalism and respect for states' rights would likely do so in the absence of a clear expression of such preemption.