On June 12, 2012, the International Agency for Research on Cancer (IARC), an agency of the World Health Organization, designated diesel engine exhaust as “carcinogenic to humans” (Group 1) — a classification shared with asbestos and radon — based on lung cancer risk. Notably, IARC’s analysis focused on engine exhaust from “traditional” rather than “new technology” diesel currently used in the United States.
Given the vast number of people historically exposed to traditional diesel exhaust, particularly in the transportation, mining, manufacturing and construction industries, and the high prevalence of cancers of the lung and bronchus — approximately 225,000 new diagnoses in the United States annually — IARC’s action has the potential to generate a new wave of personal injury litigation.
Plaintiffs’ lawyers promptly added announcements to their websites describing IARC’s action and advising that those exposed to diesel engine exhaust who have contracted lung cancer or experienced other adverse health effects may be entitled to compensation.
Within a month of IARC’s decision, however, a panel of the U.S. Court of Appeals for the Second Circuit adopted a sweeping preemption decision demonstrating the complexity of litigating diesel exhaust claims.
In Jackson v. General Motors Corp., 770 F. Supp. 2d 570 (S.D.N.Y. 2011), aff’d sub nom. Butnick v. General Motors Corp., No. 11-1068 (2d Cir. July 11, 2012), public transit workers sued bus and engine manufacturers for injuries allegedly arising from their inhalation of diesel exhaust fumes. Plaintiffs alleged that the buses did not meet U.S. Environmental Protection Agency emissions standards promulgated under the Clean Air Act and that the manufacturers had failed to warn them about potentially dangerous health effects from exposure to diesel fumes.
The court held that the Clean Air Act’s preemption provision relating to motor vehicles emission standards preempted all of these claims. The Second Circuit based its analysis on the principle that private tort litigation is effectively a form of enforcement that can lead to varying state standards at odds with a federal statutory scheme intended to establish national uniformity, see Cipollone v. Liggett Group Inc. 505 U.S. 504 (1992), and on Section 209(a) of the Clean Air Act, which provides that no state “shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines.” 42 U.S.C. § 7543(a).
The Second Circuit held that plaintiffs’ claims all “related to” the control of emissions and were thus preempted. It rejected plaintiffs’ argument that warnings were a permitted “use” restriction, not preempted by the Clean Air Act, similar to idling restrictions that can be imposed by states to address air quality.
And the Second Circuit rejected the argument that “new motor vehicles” were not at issue because the manufacturers had installed “defeat devices” that would increase emissions only after the vehicles had passed inspection and gone into service.
The Second Circuit thus held that Section 209(a)’s prohibition against state enforcement of any standards related to new motor vehicle emissions was broad enough to preempt all claims against the manufacturers, including claims for failure to warn.
The breadth of the Butnick/Jackson preemption ruling is particularly noteworthy because it is the first reported federal case addressing the merits of a preemption defense based on the Clean Air Act’s provisions related to new motor vehicles. As such, it substantially broadens the potential for preemption of personal injury claims based on exposure to diesel exhaust.
By its terms, however, the decision may not foreclose all diesel exhaust claims. The district court and the Second Circuit both suggested that suits for inadequate ventilation, for example, would not be barred by Section 209(a).
Such claims likely implicate different potential defendants — the owners or operators of work sites. In many cases, those defendants will be a plaintiffs’ employer from whom recovery can only be sought through workers’ compensation laws.
But third-party claims by customers, independent contractors, tenants or others may be allowed to proceed despite Section 209(a).
In addition, the failure-to-warn portion of the Butnick/Jackson decision may be subject to attack as the law continues to develop and other courts are encouraged to disagree with its conclusion that failure-to-warn claims, in particular, are “related to” new vehicle emissions and thus preempted.
Plaintiffs may argue that failure-to-warn claims constitute “in-use” regulations permitted under Section 209(d), rather than emission standards for new vehicles preempted by Section 209(a). A duty to warn, the argument goes, does not threaten to impose an emission standard at the point of sale but rather a requirement for the safe operation of motor vehicles, similar to idling and other restrictions permissibly imposed by states.
The Clean Air Act is also an extremely complex statutory scheme that strikes a different balance between federal and state enforcement in different, discretely defined areas. As a result, whether diesel exhaust personal injury claims are preempted will likely vary based upon the alleged source of the emissions, type of defendant and theory of liability.
Different preemption provisions apply to different sources of diesel emissions depending on their purpose, e.g., agricultural or railroad, size and whether they are mobile or stationary. The Clean Air Act’s preemption provision that applies to trains and train engines, for example, contains similar language to that found in Section 209(a), at issue in Butnick/Jackson.
Fuel manufacturers, by contrast, are regulated under a different section of the Clean Air Act, Section 211(c)(4)(A), which preempts state prescription or enforcement of controls governing fuels and fuel additives only if the EPA publishes a ruling that no such control is necessary or has published its own regulations in the area. 42 U.S.C. § 7545(c)(4)(A).
And even where the EPA does publish its own fuel regulations, states remain free to enforce the EPA requirement. Thus, plaintiffs might argue that tort suits may piggyback on the EPA fuel standards by relying on them to establish the appropriate standard under state law.
Finally, in another wrinkle in the preemption analysis, California retains more extensive regulatory and enforcement authority under the Clean Air Act than other states. Thus, plaintiffs may assert that claims preempted elsewhere be permitted to proceed based on California’s standards. See e.g., Rocky Mountain Farmers Union v. Goldstene, 843 F. Supp. 1042 (E.D. Cal. 2011) (holding that California low carbon fuel standards were not preempted based upon exceptions specifically applicable to California).
In sum, the Second Circuit’s holding in Butnick/Jackson is an opening bout in an extended fight over the scope of Clean Air Act preemption of different types of diesel exhaust exposure claims. Given the complexity of the issues and the stakes for both sides, this issue is likely to be litigated for some time to come.