In an opinion issued yesterday, the Sixth Circuit concluded that the Clean Air Act does not preempt common law claims brought against an emitter that are based on the law of the state in which the emitter operates. Merrick, et al. v. Diageo Americas Supply. The court’s holding is consistent with the Third Circuit’s holding in a case that raised substantially the same issue.

The process to distill and age whiskey that is used by Diageo American Supply produces ethanol emissions. The Clean Air Act, passed in an effort to combat the threat of air pollution, provides for federal baseline pollution standards, but leaves individual implementation and enforcement up to the states. The Clean Air Act leaves the states the authority to pass standards that are stricter than the federal standard and does not restrict the right of “any person… to seek enforcement of any emission standard or limitation or to seek any other relief.”

Based on an investigation performed by the Louisville Metro Air Pollution Control District (the District) and the complaints of 27 residents living near Diageo’s facilities, the District issued a notice of Violation letter to Diageo. While this notice was being resolved, a group of local residents filed a class action complaint against Diageo. The plaintiffs sought compensatory and punitive damages from Diageo to abate the company’s ethanol emissions. The district court denied Diageo’s argument that the plaintiffs’ claims were preempted by the Clean Air Act, but certified its ruling for interlocutory appeal under 28 U.S.C. 1292(b).

The Sixth Circuit noted that states reserve the right to adopt common law standards that apply to emissions because the “states’ rights saving clause” of the Clean Air Act saves “any requirement respecting control or abatement of air pollution” from preemption. The Sixth Circuit found support for its conclusion that common law standards are contemplated by the phrase “any requirement” within the Supreme Court’s analysis of the issue in Cipollone v. Liggett Grp., Inc., where the High Court found that the phrase “sweeps broadly and… easily encompasses obligations that take the form of common law rules.” The Sixth Circuit goes on to note that it was not Congress’ purpose to preempt state law claims like the ones made by the plaintiffs.

Diageo pointed to a case from the Fourth Circuit where the court held that the Clean Air Act did preempt state common law claims. The Sixth Circuit, however, followed both the Third Circuit and the Iowa Supreme Court and found that the Clean Air Act does not preempt “claims brought by plaintiffs under the common law of the source state.” The Sixth Circuit distinguished the Fourth Circuit case by pointing out that the plaintiffs in that instance had brought claims under the state common law of states other than the state that was the source of the emissions.