Air Permits Don't Stop Neighbors' Nuisance Claims

On November 2, 2015, the United States Court of Appeals for the Sixth Circuit issued opinions in two cases presenting the issue of whether the federal Clean Air Act ("CAA") preempts state common law claims against sources. In both cases, the Sixth Circuit ruled that the state law claims were not preempted. These recent opinions, in combination with efforts by environmental regulators to make reporting and compliance information more widely available, could lead to more state law claims seeking damages or injunctive relief related to air emissions from sources across the country.

Background—Previous Case Law

The Sixth Circuit opinions followed a series of similar cases also analyzing the preemption of state law claims by the CAA. In American Electric Power Co., Inc. v. Connecticut, the U.S. Supreme Court held that federal common law claims were preempted by the CAA, but it expressly left open the question of whether state common law claims were preempted.¹ More