Recent Trend in Environmental Litigation: Public Nuisance Cases Against Regulated Entities for Air Pollution

A June 13 ruling by the Iowa Supreme Court highlights a recent trend in environmental litigation: lawsuits against regulated entities asserting state law public nuisance claims for air pollution.  In 2011, the U.S. Supreme Court held unanimously that the Clean Air Act preempts federal common law nuisance claims against a utility for emissions of greenhouse gases. American Electric Power v. Connecticut, 564 U.S. ___ (2011). Since then, litigants have sued power utilities and other entities with Clean Air Act permits under the state common law of nuisance in various states. In 2010, the Fourth Circuit Court of Appeals held that the Clean Air Act preempts state nuisance law claims against an out of state source of air pollution.  North Carolina ex rel. Cooper v. Tennessee Valley Authority, 615 F. 3d 291 (4th Cir. 2010). The Iowa Supreme Court case, Freeman v. Grain Processing Corp., No. 13-0723, 2014 Iowa Sup. LEXIS 72 (Iowa Sup. Ct. June 13, 2014), indicates that, at least for now, state law nuisance claims are still viable. It reinforces that viability after the U.S. Supreme Court recently denied certiorari in an appeal of a Third Circuit Court of Appeals decision that the Clean Air Act does not preempt state law nuisance claims against a power company. Bell v. Cheswick Generating Station, 734 F. 3d 188 (3rd Cir. 2013), cert. denied, 82 USLW 3531 (U.S. June 2, 2014).

In Freeman, plaintiffs asserted common law nuisance claims for emissions from a corn wet milling facility in Iowa. The case thus presented the issue of whether the Clean Air Act preempts state law nuisance claims against an in-state source.  The trial court ruled that it did, and dismissed the case. The Iowa Supreme Court ruled that state law nuisance claims are not preempted by the Clean Air Act, and reinstated the claims. The Court relied in on “savings clauses” in the Clean Air Act which, with language nearly identical to the savings clauses in the Clean Water Act, preserve state law and citizens’ rights to bring state law nuisance claims as long as the state law is at least as stringent as the federal law. The U.S. Supreme Court had relied in 1987 on the Clean Water Act’s savings clause to hold that some state common law claims are not preempted by the Clean Water Act. International Paper Co. v. Ouellette, 479 U.S. 481 (1987). With rulings like the Iowa Supreme Court’s Freeman decision and the Third Circuit’s Bell decision, it is likely that courts will see increasing numbers of state law nuisance law claims against alleged air polluters.

For more information on environmental litigation trends, or on Clean Air Act litigation, contact Steve O’Day or Andy Thompson.

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