Tuesday, Pillsbury attorneys Matt Morrison and Bryan Stockton published their client alert Recent Cases on Clean Air Act Preemption of Common Law Torts Upend Conventional Wisdom. The Alert discusses two recent appellate-level decisions allowing state common law tort claims against an intrastate emitting source to avoid Clean Air Act (CAA) preemption, decisions that have surprised many CAA litigators. The outcome in both Bell v. Cheswick Generating Station, 734 F. 3d 188 (3d Cir. 2013), and Freeman v. Grain Processing Corporation, 848 N.W.2d 58 (Iowa 2014)–as well as the Supreme Court’s recent denial of certiorari in both cases–was unexpected to many because the Supreme Court has held previously that the CAA preempts similar tort claims based on federal common law. Stationary sources should be aware that some plaintiffs may be more inclined to attempt to raise state law tort claims, regardless of ultimate merit.
If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Matt Morrison or Bryan Stockton, the authors of this blog.