This week, the 6^th Circuit Court of Appeals held, in Merrick v. Diageo Americas Supply, that the Clean Air Act does not preempt source state common law remedies seeking to control air pollution – even where the defendant is in compliance with CAA requirements.  The 6^th Circuit joins the 3^rd Circuit, which reached the same conclusion in Bell v. Cheswick in 2013.  Merrick involved allegations that emissions from the defendant’s whiskey distillery caused “whiskey fungus” to grow on the plaintiffs’ property.  These facts are not really relevant to the decision, but Whiskey fungus sounds cool and it justifies me including a picture of the fungus.

When Bell v. Cheswick was decided, I ranted – as I sometimes do – that the decision was not just wrong, but “willfully wrong”.  However, bloggers, like judges, as my partner Robby Sanoff recently noted, can sometimes change their mind.  The decision in Merrick has persuaded me that, however wrong Congress may have been to do so, it did not preempt source state common law claims.  The CAA preserves the rights of states to adopt “any requirement respecting control or abatement of air pollution”.  As Merrick demonstrates, there is substantial jurisprudence to the effect that “any requirement” includes requirements imposed under state common law.

Good law. Still terrible policy, however.  Why?

Let’s assume that the CAA requires a facility to limit its emissions to X.  The problem with allowing nuisance actions even where the facility’s emissions are below X is that the facilities have no way of knowing in advance what kind of nuisance claims might be brought and what emissions standard will result.  It many cases, a facility might not even use the same technology to attain a standard of 0.5X as it would to attain X.  Does it really seem reasonable to require a facility to go back to the drawing board, completely wasting the costs incurred to attain X, so that it can install the new technology and attain the 0.5X standard required to avoid nuisance liability?

The CAA is not a well-written statute (though of course it pales in comparison to CERCLA).  If I were king, the CAA would include some kind of market-based system to control GHG emissions.  It would impose more stringent limits on traditional pollutants, also subject to a trading regime.  The quid pro quo for generators would be the elimination of PSD/NSR for facility modifications and preemption of state law claims.

Any takers?