Sixth Circuit Holds That Clean Air Act Does Not Preempt State Common-Law Claims

In two cases decided the same day, the Sixth Circuit Court of Appeals held that the federal Clean Air Act (CAA) does not preempt tort claims under state law for permitted emissions. These rulings establish a clear trend against a finding of preemption and they substantially widen the potential liability of businesses who have assumed that their CAA permits would insulate them against tort liability—including class actions—for their emissions.

In the principal case, Merrick v Diageo Americas Supply, 2015 U.S. App. LEXIS 19096 (Nov. 2, 2015), the Sixth Circuit held that a whiskey distiller whose operations caused ethanol vapors to migrate to neighboring properties and cause the growth of "whiskey fungus" was not protected against state common-law tort claims by the fact that its CAA permit governed such emissions. In the other case, Little v Louisville Gas & Electric Co, 2015 U.S. App. LEXIS 19095 (Nov. 2, 2015), the Sixth Circuit held that a coal burning power plant operator whose plant allegedly emitted airborne dust and coal ash that migrated onto neighboring properties could not avoid common-law tort claims on grounds that the emissions were governed by the plant's air permit and therefore preempted by the CAA. The Sixth Circuit reached the same result as the Third Circuit did in Bell v Cheswick Generating Station, 734 F.3d 188 (3d Cir 2013).

The Sixth Circuit in Merrick and Little emphasized the effect of the "savings clauses" in the citizen suit and states' rights provisions of the CAA, holding that because state common law standards are "requirements" adopted by "States," the states' right savings clause bars preemption. The Court noted that this conclusion was consistent with other parts of the CAA and its legislative history as well as Supreme Court precedent under the federal Clean Water Act. The Sixth Circuit...