See Little v. Louisville Gas & Elec. Co., No. 3:13-CV-01214-JHM, 2014 WL 3547331, at *23 (W.D. Ky. July 17, 2014) (holding that CAA did not preempt plaintiffs’ state common law claims against power plant releasing dust and coal ash that coated plaintiffs’ homes and properties); Merrick v. Diageo Americas Supply, Inc., 5 F.Supp.3d 865, 876 (W.D. Ky. Mar. 19, 2014) (“[C]ourts have increasingly interpreted the CAA's savings clause to permit individuals to bring state common-law tort claims against polluting entities.”)United States v. EME Homer City Generation, 823 F. Supp. 2d 274, 296-97 (W.D. Pa. 2011) aff'd, 727 F.3d 274 (3d Cir. 2013); Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 865 (S.D. Miss. 2012). The procedural history of Comer is unusual.
Claims of this ilk often have been vulnerable to dismissal for failure to establish causation, standing and redressability, and on political question grounds. (See, e.g., American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), ruling that federal common law claims against large greenhouse gas sources are displaced by CAA; Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), finding CAA displaced state common law tort claims alleging climate change-related injuries; Comer v. Murphy Oil USA Inc., 839 F. Supp. 2d 849, 868 (S.D. Miss. 2012), in which tort claims filed by residents of Mississippi Gulf coast after Hurricane Katrina were dismissed on the basis that it was displaced and preempted by CAA, and barred by political question doctrine.) It is likely that the three lawsuits recently filed in Marin County, San Mateo County, and the City of Imperial Beach, which are based on similar tort theories, would be at risk of dismissal based on similar rationales.
The Freeman court added: “The citizens rights savings clause expressly states that the ability to bring actions under the CAA does not preempt common law rights” (Citations omitted, emphasis added.)Comer: The Lone Decision Endorsing Preemption That brings us to Comer v. Murphy Oil USA, Inc., 839 F. Supp.2d 849 (S.D. Mi. 2012), in which the plaintiffs brought suit against a number of oil, coal, electric and chemical companies.
As a result, the panel held that the class’s claims were not preempted, reversed the decision of the District Court, and remanded the case for further proceedings.It its Petition for Rehearing En Banc, GenOn argues that the panel focused solely on whether plaintiffs’ state common law claims were expresslypreempted by the CAA and failed to analyze whether the claims were preempted because they conflicted with, and would thereby be an obstacle to, the regulatory scheme established by Congress. GenOn asserts that such analysis is required by the 3rd Circuit’s prior decision in Farina v. Nokia, 625 F 3d 97 (3rd Cir. 2010), and, as a result, the Panel’s decision conflicts with a prior decision of the 3rd Circuit, and the decisions of the 4th and 5th Circuits in North Carolina v. Tennessee Valley Authority, 615 F 3d 291 (4th Cir. 2010), and Comer v. Murphy Oil, Inc., 839 F. Supp 2d 849 (S.D. Miss 2012). GenOn also argued that the panel erred in extending Ouellette insofar as the savings clauses in the CAA and the CWA are fundamentally different and that a careful reading of Ouellette does not support the panel’s holding.As noted in an earlier frESH law blog post, the Supreme Court left open the question of whether state law nuisance claims for damages were viable in the face of the CAA in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011).
Accordingly, notwithstanding the suggestion by the Supreme Court in American Electric Power that state law nuisance claims for carbon dioxide liability might be viable, if the Western District’s analysis is correct and applicable to carbon dioxide, such claims will not survive for very long. 1Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 865 (S.D. Miss. 2012), also relied on American Electric Power and found state law nuisance claims displaced by the Clean Air Act. That court had first found that plaintiffs’ claims failed due to res judicata and estoppel, and half a dozen other reasons, and its analysis of the displacement and preemption issue is not extensive.