Sixth Circuit Joins Growing Trend By Ruling Clean Air Act Does Not Preempt State Common Law Claims for Air Pollution
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 inLittle 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.