Perhaps The Clean Air Act Really Doesn't Preempt State Common Law Remedies

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