Yesterday in two parallel class action interlocutory appeals, the Sixth Circuit joined the Third Circuit in holding that the Clean Air Act does not preempt state common law tort claims related to air pollution.  The first case, Merrick v. Diageo Americas Supply, Inc., involved excess ethanol emissions from Johnny Walker and J&B brand whiskey distilleries located in Louisville, Kentucky that allegedly caused the growth of a specific type of mold on neighboring properties.  The proposed class of local property owners asserted claims for negligence, nuisance, trespass, and injunctive relief, relying on violations of a local ordinance that prohibited air pollution which caused “injury, detriment, nuisance, or annoyance to any considerable number of persons or to the public.”  The second case, Little v. Louisville Gas & Electric Co., involved dust and coal ash emissions from a coal-fired power plant which effected local residents, and which were the subject of multiple notices of violation issued to the power company.  The class action claims in Little included claims for violations of the federal Clean Air Act and the Resource Conservation and Recovery Act, as well as state common law claims for nuisance, trespass, negligence, negligence per se, and gross negligence.  In both cases, United States District Court for the Western District of Kentucky allowed the common law claims to survive defendants’ motions to dismiss, ruling that the common law claims were not preempted by the federal Clean Air Act.  

In the Merrick case, the Sixth Circuit largely adopted the reasoning and holding of the Third Circuit’s opinion on Bell v. Cheswick Generating Station, which we reported on here, and which held that the Clean Air Act does not preempt state common law tort claims.  The Sixth Circuit reasoned that the Clean Air Act contains an express “savings clause” that grants states the right to “adopt or enforce” common law standards to air emissions, which include state common law claims adjudicated by the courts. The Sixth Circuit also pointed to legislative history of the Clean Air Act, which indicated Congress did not intend to preempt state common law claims for air pollution, but rather specifically reserved all other rights and remedies available under other federal and state laws.  While the Sixth Circuit recognized that the whiskey-distilleries were already subject to a federal Clean Air Act regulations which include a comprehensive federal permitting and enforcement scheme that imposes significant costs on industry, they noted that industry’s concerns with allowing state common law claims for air pollution “must however be directed to Congress.  There is no basis in the Clean Air Act on which to hold that the source state common law claims of plaintiffs are preempted.”

The Sixth Circuit likewise affirmed the District Court’s ruling in the Little case, and allowed the proposed class action state common law claims to proceed.  

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