What’s Old Is New Again: State Common-Law Tort Actions Elude Clean Air Act Preemption

I. Introduction

It usually takes at least three to start a trend, but two recent appellate-level decisions suggest a new air pollution enforcement trend is in the making: Environmental plaintiffs may be able to avoid Clean Air Act (CAA)¹ preemption by bringing state common-law tort claims against an intrastate emitting source. The plaintiffs in both Bell v. Cheswick² and Freeman v. Grain Processing Corp.³ successfully convinced the U.S. Court of Appeals for the Third Circuit and the Iowa Supreme Court, respectively, that the CAA did not preempt their tort claims based on state common law. The result—as well as the U.S. Supreme Court’s denial of certiorari in both cases—surprised observers because the Supreme Court has held previously that the CAA preempts similar tort claims based on federal common law. ⁴