Rodriguez, Rafael

English

University of Kentucky

Impact! (/full-blog?category=Impact%21), Natural Resource (/full-blog?category=Natural+Resource)By: Rafael RodriguezEven though you can survive many days without food and several hours without water, without airyou would die within a few minutes.[i] Particularly, air pollution can burn your eyes and nose, whichcan affect visibility and the ability to breathe.[ii] In order to combat pollution in the air, Congresspassed the Clean Air Act (hereinafter “the Act”), which gave the federal government the power tolimit air pollution in the United States.[iii]The Act states that air pollution prevention is the primary responsibility of individual states, butacknowledges federal assistance is essential on achieving those goals.[iv] The Act essentially dependson a cooperative federalism structure under which the federal government develops baselinestandards that the states follow.[v] The Act itself allows states to adopt or enforce standards for airthat can be stricter than what the federal guidelines require.[vi] Or at least, that is what some courtshave been ruling.[vii](http://www.uscourts.gov/about-federal-courts/court-role-and-structure)February 22, 2016STATE SOLUTION TO AIRPOLLUTIONH O M E  ( / )S U B M I S S I O N S  ( / S U B M I S S I O N S )A B O U TJ O U R N A L  ( / A B O U T )M AST H E A D  ( / N E W- PAG E )P R O S P E C T I V E  M E M B E R S  ( / P R O S P E C T I V E - M E M B E R S )S U B S C R I B E  ( / S U B S C R I B E )STA F F  R E S O U R C E S  ( / STA F F - R E S O U R C E S )P U B L I C AT I O N SP U B L I C AT I O N  A R C H I V E  ( / P U B L I C AT I O N - A R C H I V E )VO LU M E  1  ( 2 0 0 9 )  ( / VO LU M E - 1 - 2 0 0 8 - 2 0 0 9 )VO LU M E  2  ( 2 0 1 0 )  ( / VO LU M E - 2 - 2 0 0 9 - 2 0 1 0 )VO LU M E  3  ( 2 0 1 1 )  ( / VO LU M E - 3 - 2 0 1 0 - 2 0 1 1 )VO LU M E  4  ( 2 0 1 2 )  ( / VO LU M E - 4 - 2 0 1 1 - 2 0 1 2 )VO LU M E  5  ( 2 0 1 3 )  ( / VO LU M E - 5 - 2 0 1 2 - 2 0 1 3 )VO LU M E  6  ( 2 0 1 4 )  ( / VO LU M E - 6 - 2 0 1 3 - 2 0 1 4 )VO LU M E  7  ( 2 0 1 5 )  ( / VO LU M E - 7 - 2 0 1 4 - 2 0 1 5 )VO LU M E  8  ( 2 0 1 6 )  ( / VO LU M E - 8 - 2 0 1 5 - 2 0 1 6 )VO LU M E  9  ( 2 0 1 7 )  ( / VO LU M E - 9 - 2 0 1 6 - 2 0 1 7 )VO LU M E  1 0  ( 2 0 1 8 )  ( / VO LU M E - 1 0 - 2 0 1 8 )SY M P O S I U MI N F O R M AT I O N  ( / SY M P O S I U M )B LO GF U L L  B LO G  ( / F U L L - B LO G )B LO G  A R C H I V E  ( / B LO G - A R C H I V E - 1 )On November 2, 2015, the Sixth Circuit followed the Third Circuit and the Supreme Court ofIowa, and concluded that the Act does not preempt common law claims brought against an emitterof pollution based on the law of the state in which that emitter conducts its activities. [viii] InMerrick v. Diageo Ams. Supply, Inc., owners, lessors, and renters of properties near Diageo’swarehouses were affected by whiskey fungus and complained to air pollution control about theamount of whiskey fungus that was growing on their property due to their proximity to Diageo’swarehouses.[ix] The plaintiff ’s alleged that the Act did not preempt the state common laws ofnuisance and trespass, while the defendants suggested that those claims would disrupt the Act’scooperative federalism structure because it would allow states to adopt stricter standards than the‘floor’ established by federal law.[x] The Sixth Circuit held that the Act expressly allowed the Statesto impose stricter standards on air pollution than the federal government; therefore, the common-law claims were not preempted.[xi] The Fourth Circuit, however, in N.C. ex rel. Cooper v. TVA heldto the contrary, and recognized that allowing nuisance claims would provide an unmanageablemethod with which to implement regular standards of pollution control.[xii]  The court reasonedthat allowing the state claims would conflict too much with pollution control guidelines set forth inthe Act and dismissed the claims.[xiii]This circuit split raises the question on whether the Act preempts state common law claims or not. Aplain reading of the statute suggests that it does not, as Congress specifically carved out a provisionfor the states to retain authority over the level of strictness of air control.[xiv] Additionally, if the Actwere to be read as dismissing all common-law claims, something which even the Fourth Circuitfailed to accept, then there would be no remedy for those whose property value was damaged.[xv]Furthermore, the question whether state law is preempted by federal law depends on whethercompliance with the state law defeats the purposes and objectives of the federal law.[xvi] Allowingtort claims against polluters does not seem to defeat the purpose of Congress’ goal of quality aircontrol. In fact, it seems to further the goal as emitters will have stricter standards to adhere to.[i] The Plain English Guide to the Clean Air Act, U. S. Envtl. Protection Agency (Sept. 10, 2015),http://www3.epa.gov/airquality/peg_caa /concern.html.[ii] Id.[iii] Id.[iv] Bell v. Cheswick Generating Station, 734 F.3d 188, 190 (3d Cir. 2013).[v] See id.[vi] See 42 U.S.C. § 7416 (1999); See id.[vii] John A. Ferrolli, Sixth Circuit Holds That Clean Air Act Does Not Preempt State Common-Law Claims, DYKEMA (Nov. 6, 2015),http://www.dykema.com/resources-alerts-sixth-circuit-holds-that-clean-air-act-does-not-preempt-state-common-law-claims.html(explaining that the Sixth Circuit and Third Circuit agree that The Clean Air Act does not preempt state common-law claims, while theFourth Circuit held that the Act does preempt state common-law claims).[viii] Justin Jennewine, Sixth Circuit Sides with Third Circuit on Preemption Issue, Sixth Circuit App Blog (Nov. 3, 2015),http://www.sixthcircuitappellateblog.com/ recent-cases/sixth-circuit-sides-with-third-circuit-on-preemption-issue/.[ix] Merrick v. Diageo Ams. Supply, Inc., No. 14-6198, 2015 U.S. App. LEXIS 19096, at *7 (6th Cir. Nov. 2, 2015).[x] Id. at *25.[xi] Id. at *26.[xii] N.C. ex rel. Cooper v. TVA, 615 F.3d 291, 302 (4th Cir. 2010).[xiii] Id. at 303, 312.[xiv] 42 U.S.C. § 7416.COMMENTS (0)  Subscribe via e-mailSource: https://www.challenge.gov/agency/environmental-protection-agenc…0 Likes  Newer PostSupreme Court Smackdown: Obama’sOverreaching Clean Power Plan Halted (/full-blog/2016/2/25/johntylermullinsblog)Older PostControversy Following 2015 Breeders’ Cup:Ex-trainer of ‘Runhappy’ Files Suit (/full-blog/2016/2/7/markashleyhatfieldblog)6 3 1  S O U T H  L I M E S TO N E ,  L E X I N G TO N ,  KY4 0 5 0 8 ( 8 5 9 )  2 5 7 - 4 7 4 7 B LO G . K J E A N R L @ G M A I L . C O M  ( M A I LTO : B LO G . K J E A N R L @ G M A I L . C O M )[xv] N.C. ex rel. Cooper v. TVA, 615 F.3d at 302-303.[xvi] Merrick v. Diageo Ams. Supply, Inc., 2015 U.S. App. LEXIS 19096, at *25.  ShareNewest FirstPreview  P O S T  C O M M E N T …SEARCHABLE ARCHIVE ( /PUBLICATION-ARCHIVE-1)

State Solution to Air Pollution

https://uknowledge.uky.edu/cgi/viewcontent.cgi?filename=0&article=1358&context=law_kjeanrlblog&type=additional

State Solution to Air Pollution

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