Air Permits Don't Stop Neighbors' Nuisance Claims

On November 2, 2015, the United States Court of Appeals for the Sixth Circuit issued opinions in two cases presenting the issue of whether the federal Clean Air Act ("CAA") preempts state common law claims against sources. In both cases, the Sixth Circuit ruled that the state law claims were not preempted. These recent opinions, in combination with efforts by environmental regulators to make reporting and compliance information more widely available, could lead to more state law claims seeking damages or injunctive relief related to air emissions from sources across the country.

Background—Previous Case Law

The Sixth Circuit opinions followed a series of similar cases also analyzing the preemption of state law claims by the CAA. In American Electric Power Co., Inc. v. Connecticut, the U.S. Supreme Court held that federal common law claims were preempted by the CAA, but it expressly left open the question of whether state common law claims were preempted.1 More recently, the U.S. Court of Appeals for the Third Circuit held in Bell v. Cheswick Generating Station that a class action against a coal-fired electrical generation facility, alleging nuisance, negligence, and trespass stemming from ash and other contaminants allegedly settling on nearby properties, was not preempted by the CAA because it was "brought by Pennsylvania residents under Pennsylvania law against a source of pollution located in Pennsylvania."2 Last year, in Freeman v. Grain Processing Corp.,3 the Iowa Supreme Court reasoned that "a claim that seeks to regulate pollution based on the law of the source state ... is precisely the kind of cooperative federalism anticipated by" the CAA.4 The Iowa Supreme Court went on to hold that "a private lawsuit seeking damages anchored in ownership of real property" is not preempted by the CAA.5 The U.S. Supreme Court denied certiorari in appeals of both Bell and Freeman.6

The Sixth Circuit Cases

In Little v. Louisville Gas & Electric Co.,7 the plaintiffs alleged that a power plant in Kentucky was the cause of a dust that was periodically coating their nearby homes and properties. In addition to arguing that the power plant had violated various statutory requirements under federal law, the plaintiffs brought state law claims of nuisance, trespass, negligence, negligence per se, and gross negligence. The district court dismissed most of the plaintiffs' federal law claims but rejected defendants' argument that the CAA preempted plaintiffs'...