CASE INVOLVING PREEMPTION OF AIR POLLUTION CLAIMS MAY BE CONSIDERED BY THE SUPREME COURT

By TONI ELLINGTON

Manufacturers, refiners, and businesses of all kinds should be aware of a petition for certiorari filed and currently pending in the Supreme Court by an Iowa corn processing facility.  In the case of Grain Processing Corporation v. Laurie Freeman, et al., No. 14-307, the petitioners seek review of a decision of the Iowa Supreme Court on whether state court tort claims involving air pollution, including state court nuisance claims, are preempted under the Clean Air Act, 42 U.S.C. §7401, et seq.

The underlying case in Iowa is a class action lawsuit brought by residents over air pollution from a grain processing facility.  The Iowa Supreme Court allowed the class action to go forward.  The petitioners argue that the Clean Air Act provides the exclusive authority for regulating air pollution. The respondents assert that the Clean Air Act system can exist concurrently with various state laws and state tort causes of action, including nuisance.  The respondents allege that even where a source like the processing plant in question is in compliance with federal Clean Air Act permits, relief under state law for air pollution may be available.

The petitioners and supporting amicus briefs ask the Court to clarify this issue, which was left open in the Supreme Court’s decision in American Electric Power v. Connecticut, 131 S.Ct. 2527 (2011).  In that case, the Supreme Court decided that public nuisance claims were “displaced” by the Clean Air Act.  The Supreme Court remanded the case to the Second Circuit Court of Appeal to decide whether such claims were preempted.  Upon remand, the plaintiffs withdrew their complaint, and the preemption issue was never decided.

In addition, the Supreme Court may grant certiorari and consider this case because a conflict exists among the circuits on the issue of preemption under the Clean Air Act.

For updates, check this blog, or contact Toni Ellington at (504) 599-8500.