LAURIE FREEMAN, SHARON MOCKMORE, BECCY BOYSEL, GARY D. BOYSEL, LINDA L. GOREHAM, GARY R. GOREHAM, KELCEY BRACKETT, and BOBBIE LYNN WEATHERMAN, Appellants,
GRAIN PROCESSING CORPORATION, Appellee
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Appeal from the Iowa District Court for Muscatine County, Mark J. Smith, Judge. Appellants assert the district court improperly granted summary judgment.
Sarah E. Siskind, Barry J. Blonien and David Baltmanis of Miner, Barnhill & Galland, P.C., Madison, Wisconsin, Andrew L. Hope of Hope Law Firm, P.L.C., West Des Moines, James C. Larew and Claire M. Diallo of Larew Law Office, Iowa City, for appellants.
Michael R. Reck, Mark McCormick, Charles F. Becker, Kelsey J. Knowles of Belin McCormick, P.C., Des Moines, Steven J. Havercamp and Eric M. Knoernschild of Stanley, Lande & Hunter, P.C., Muscatine, Joshua B. Frank and Charles A. Loughlin of Baker Botts L.L.P., Washington, D.C., for appellee.
Joshua T. Mandelbaum, Des Moines, and Howard A. Learner, Chicago, Illinois, for amici curiae Environmental Law & Policy Center and Iowa Environmental Council.
Ronald A. May of Gomez, May LLP, Davenport, James L. Huffman, Portland, Oregon, Scott A. Shepard, Chicago, Illinois, Roger E. Meiners, Arlington, Texas, and Andrew Morriss, Tuscaloosa, Alabama, for amicus curiae Property and Environment Research Center.
Sarah E. Crane of Davis Brown Law Firm, Des Moines, and Richard O. Faulk of Hollingsworth LLP, Washington, D.C., for amici curiae National Association of Manufacturers, Council of Industrial Boiler Owners, National Shooting Sports Foundation, Inc., National Mining Association, Nuclear Energy Institute, Inc., and Textile Rental Services Association of America.
APPEL, Justice. All justices concur, expect Mansfield, J., who takes no part.
Eight residents of Muscatine filed a lawsuit  on behalf of themselves and other similarly situated Muscatine residents against Grain Processing Corporation (GPC), which operates a local corn wet milling facility. The residents claim the operations at GPC's facility cause harmful pollutants and noxious odors to invade their land, thereby diminishing the full use and enjoyment of their properties. They base their claims on common law and statutory nuisance as well as the common law torts of trespass and negligence. The residents seek certification of the lawsuit as a class action, damages for the lost use and enjoyment of their properties, punitive damages, and injunctive relief.
Prior to class certification, GPC moved for summary judgment. GPC asserted the residents' common law and statutory claims were preempted by the Federal Clean Air Act (CAA), 42 U.S.C. § § 7401-7671q (2012). In the alternative, GPC claimed the common law claims were preempted by Iowa Code chapter 455B (2013), which is the state statutory companion to the CAA. Finally, GPC argued the issues raised by the residents amounted to political questions involving complex policy and economic issues that cannot and should not be resolved by the judicial process.
The district court granted summary judgment in favor of GPC on all three theories and dismissed the lawsuit. The residents appeal. For the reasons expressed below, we reverse the judgment of the district court and remand the case for further proceedings.
I. Factual and Procedural Background.
The eight individually named plaintiffs all reside within one and one-half miles of GPC's facility in Muscatine. They seek to represent a class described as follows: " All Muscatine residents (other than Defendant and its affiliates, parents, or subsidiaries) who have resided during the damages period within 1.5 [miles] of the perimeter of Defendant's facility located at 1600 Oregon St., Muscatine, Muscatine County, Iowa."
According to the petition, GPC conducts corn wet milling operations at its Muscatine facility. The plaintiffs assert wet milling is a production method and process that transforms corn kernels into products for commercial and industrial use. The plaintiffs allege the corn wet milling operation at GPC's facility creates hazardous byproducts and harmful chemicals, many of which are released directly into the atmosphere. The plaintiffs allege these by-products include: particulate matter, volatile organic compounds including acetaldehyde and other aldehydes, sulfur dioxide, starch, and hydrochloric acid. They assert the polluting chemicals and particles are blown from the facility onto nearby properties. They note particulate matter is visible on properties, yards, and grounds and various chemical pollutants are also present. Compounding these adverse effects, according to the plaintiffs, GPC has used, continues to use, and has failed to replace its worn and outdated technology with available technology that would eliminate or drastically reduce the pollution. The plaintiffs assert these emissions have caused them to suffer persistent irritations, discomforts, annoyances, inconveniences,
and put them at risk for serious health effects.
The plaintiffs generally allege three claims against GPC: nuisance, negligence, and trespass. With regard to the nuisance claim, the plaintiffs contend GPC's use of its facility constitutes a nuisance under the common law and Iowa Code chapter 657, which provides a statutory framework for nuisance claims. They assert that GPC has operated its facility in a manner that unreasonably interferes with the reasonable use and enjoyment of their properties.
The plaintiffs also assert they have been harmed by GPC's negligence. They claim GPC failed to exercise reasonable care in its operations by causing or permitting hazardous substances to be released at the facility; failing to follow accepted industry standards with respect to maintaining its operation; failing to exercise reasonable and prudent care in their operations; and failing to implement, follow, and enforce proper operations and safety procedures. The plaintiffs further rely on res ipsa loquitor, arguing the release of the toxic substances would not ordinarily occur in the absence of GPC's negligence, and, the acts or omissions of the equipment and personnel that led to the toxic releases were under GPC's control at all relevant times.
Finally, the plaintiffs claim GPC's operations constitute a past and continuing trespass. They allege GPC, intentionally, purposefully, or with substantial knowledge that harm would result, contacted the properties of the plaintiffs and the class without their consent, resulting in the lost use and enjoyment of their properties. The plaintiffs assert GPC's contact with their properties constitutes a tortious physical intrusion on their properties.
GPC sought to bring an end to the litigation by filing a motion for summary judgment. First, GPC claimed the CAA's comprehensive regulatory framework preempted the plaintiffs' causes of action. Second, GPC claimed Iowa Code chapter 455B, which regulates emissions, preempted the plaintiffs' claims. Finally, GPC asserted the case presented a nonjusticiable political question because a lawsuit impacting facility emissions lacks judicially discoverable and manageable standards for resolving the issues.
Resisting the motion for summary judgment, the plaintiffs emphasized that under the CAA, states are allowed to impose stricter standards than those imposed by federal law. The plaintiffs noted nothing in the language of Iowa Code chapter 455B repealed chapter 657 related to nuisance claims and, in any event, their common law claims were not inconsistent or irreconcilable with chapter 455B. Finally, the plaintiffs asserted courts routinely hear complex nuisance, negligence, and trespass cases and, as a result, there was no basis in the federal political question doctrine to decline to hear the case.
The district court first considered whether the CAA preempted the plaintiffs' claims and concluded the CAA established a comprehensive regulatory scheme that displaced state law. In reaching this result, the district court noted that in American Electric Power Co. v. Connecticut ( AEP ), the United States Supreme Court held the CAA displaced " any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants." 564 U.S.
__, __, 131 S.Ct. 2527, 2537, 180 L.Ed.2d 435, 447 (2011). While the district court recognized the AEP Court did not consider the question of whether the CAA preempted state law claims, the district court cited lower federal court authority concluding the CAA also preempted state law claims. See Bell v. Cheswick Generating Station ( Bell I ), 903 F.Supp.2d 314, 315-16, 322
(W.D. Pa. 2012) (concluding the CAA preempted state common law nuisance, negligence, trespass, and strict liability claims), rev'd 734 F.3d 188, 190 (3d Cir. 2013);  Comer v. Murphy Oil USA, Inc. ( Comer I ), 839 F.Supp.2d 849, 865 (S.D.Miss. 2012) (extending the reasoning of AEP to state law claims after characterizing them as turning on the reasonableness of emissions, a determination entrusted to Congress); United States v. EME Homer City Generation L.P., 823 F.Supp.2d 274, 297 (W.D. Pa. 2011) (holding the CAA is a comprehensive regulatory scheme that preempted a common law public nuisance claim).
Adopting the reasoning of these authorities, the district court noted Congress had entrusted to the EPA and parallel state agencies the authority to regulate air emissions, and the CAA had established a method of citizen input in its rulemaking process. The district court held that to have a jury make a judgment about the reasonableness of GPC's emissions would invade the authority Congress vested in the EPA and state environmental authorities. The district court further noted GPC was already the subject of an enforcement action by state regulators under the CAA and that the plaintiffs' actions in this case would conflict with these enforcement procedures.
For largely the same reasons, the district court concluded state environmental statutes and regulations under Iowa Code chapter 455B preempted the plaintiffs' common law claims. The district court reasoned that controversies related to air emissions were to be determined by state regulators, not by judges and juries in common law actions.
Finally, the district court also agreed with GPC's position that the questions raised in the litigation amounted to political questions not amenable to resolution by the judiciary in a lawsuit. Citing Comer I, the district court noted a court or jury lacks judicially discoverable and manageable standards for resolving the complex environmental issues and would be forced to make policy determinations weighing the costs and benefits of GPC's facility to the surrounding community. See 839 F.Supp.2d at 864 (" It is unclear how this Court or any jury, regardless of its level of sophistication, could determine whether the defendants' emissions unreasonably endanger the environment or the public without making policy determinations that weigh the harm caused by the defendants' actions against the benefits of the products they produce." ).
This court retained the plaintiffs' appeal.
II. Standard of Review.
The standard of review for rulings on motions for summary judgment is for correction of legal errors. Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007). The standard applies when the material facts are not disputed or the appeal turns on questions of statutory interpretation. See State v. Spencer, 737 N.W.2d 124, 128 (Iowa 2007); Krause v. Krause, 589 N.W.2d 721, 724 (Iowa 1999).
III. Discussion of Preemption Under the CAA.
A. Overview of Common Law and Statutory Approaches to Environmental Protection.
In the law, as in life, in order to know where you are, you need
to know where you have been. We therefore begin our discussion of the issues posed in this case with an overview of the law of environmental protection. This background will give us a better understanding of the historical and legal context in which the issues in this case arise. In particular, the historical and legal context will shed light on the degree to which the passage of the CAA impacts the traditional role of state law in environmental regulation .
2. Traditional remedies for environmental harm: the common law.
The common law provided the first means of attempting to control environmental pollution. Tort claims challenging environmental pollution can be traced back to at least the seventeenth century to William Aldred's Case, (1611) 77 Eng. Rep. 816, 9 Co. Rep. 57a (K.B.), where the court held odor from the defendant's hog lot was a nuisance. See 1 John H. Wigmore, Select Cases on the Law of Torts 569-71 (1912); Jason J. Czarnezki & Mark L. Thomsen, Advancing the Rebirth of Environmental Common Law, 34 B.C. Envtl. Aff. L. Rev. 1, 3 & n.14 (2007) [hereinafter Czarnezki]. Despite its ancient origin, most American environmental caselaw dates to the late nineteenth and twentieth centuries after the Industrial Revolution. See Czarnezki, 34 B.C. Envtl. Aff. L. Rev. at 3.
The primary common law theories seeking redress for environmental harms were nuisance, negligence, trespass, and strict liability. See 1 Linda A. Malone, Environmental Regulation of Land Use § 10:2, at 10-7, 10-8.1 (2013) [hereinafter Malone]. In the United States, many pollution cases invoking these common law theories have been brought over the years, with mixed results. See, e.g., id. § 10:2, at 10-9 n.8, 10-12 n.19 (collecting cases involving trespasses committed in the air space above land and nuisance cases involving odors in the air and smoke, dust, or gas emissions). See generally Andrew Jackson Heimert, Keeping Pigs Out of Parlors: Using Nuisance Law to Affect the Location of Pollution, 27 Envtl. L. 403, 406-08 & n.7 (1997) (providing a brief history of nuisance actions from as early as the twelfth century to the early twentieth century); Julian Conrad Juergensmeyer, Control of Air Pollution Through the Assertion of Private Rights, 1967 Duke L.J. 1126, 1130-48 (1967) (summarizing cases involving trespass, negligence, and nuisance claims in the air pollution context); Harold W. Kennedy and Andrew G. Porter, Air Pollution: Its Control and Abatement, 8 Vand. L. Rev. 854, 854-64 (1954-1955) (citing numerous common law cases seeking remedies in the context of air pollution); Roger Meiners & Bruce Yandle, Common Law and the Conceit of Modern Environmental Policy, 7 Geo. Mason L. Rev. 923, 926-46 (1999) (giving overview of common law tradition and identifying nuisance as the " backbone" of common law environmental litigation). The availability of nuisance theory to address environmental harms was endorsed by the Restatement (Second) of Torts, which includes sections on both public nuisance and private nuisance. See Restatement (Second) of Torts § § 821B-821E, at 87-104. According to one commentator, nuisance theory " has hung on from its horse-and-buggy origins" and " continues
to be the fulcrum of what is called today environmental law." 1 William H. Rodgers, Jr., Environmental Law: Air and Water § 1.1, at 3 (1986); id. § 2.1, at 29.
Nuisance theory has been recognized in Iowa for decades and has been utilized to address environmental problems. See, e.g., Kriener v. Turkey Valley Cmty. Sch. Dist., 212 N.W.2d 526, 535-36 (Iowa 1973) (noxious odor from sewage facility amounts to private nuisance); Ryan v. City of Emmetsburg, 232 Iowa 600, 601-03, 4 N.W.2d 435, 437-38 (1942) (private nuisance arising from sewer system). See generally Ronald Sorenson, The Law of Nuisance in Iowa, 12 Drake L. Rev. 107 (1962-1963). For instance, in Bowman v. Humphrey, the plaintiff landowner successfully sued a creamery on a nuisance theory for depositing refuse in a running stream that injured the lower riparian owner. 132 Iowa 234, 235-36, 243, 109 N.W. 714, 714-15, 717 (1906). Similarly, in Higgins v. Decorah Produce Co., plaintiffs successfully claimed that a poultry and produce plant was a nuisance and obtained a court order that certain sanitary measures be taken to reduce the odor. 214 Iowa 276, 283-84, 242 N.W. 109, 112-13 (1932).
In addition to common law nuisance, the Iowa legislature has enacted a statutory nuisance claim in Iowa Code chapter 657. See Iowa Code § 657.1. We have long held that the statutory nuisance provisions of Iowa Code chapter 657 do not modify the common law of nuisance but supplement it. See, e.g., Miller v. Rohling, 720 N.W.2d 562, 567 (Iowa 2006); Perkins v. Madison Cnty. Livestock & Fair Ass'n, 613 N.W.2d 264, 271 (Iowa 2000); Bates v. Quality Ready-Mix Co., 261 Iowa 696, 703, 154 N.W.2d 852, 857 (1967).
In addition to nuisance claims, parties seeking redress for environmental harms have also pleaded common law claims of negligence and trespass. See Malone § 10:2, at 10-7, 10-8.1. Negligence claims ordinarily require conduct that falls below a standard of care established for others against unreasonable risk of harm. Id. § 10:2, at 10-8.1; see also Sterling v. Velsicol Chem. Corp., 647 F.Supp. 303, 316-17 (W.D. Tenn. 1986) (involving common law negligence claim in connection with closure of chemical waste burial site), aff'd in part, rev'd in part, 855 F.2d 1188 (6th Cir. 1988); Patrick v. Sharon Steel Corp., 549 F.Supp. 1259, 1261, 1269 (N.D. W.Va. 1982) (holding negligence claim arising from air pollution raises question of fact for jury); Conrad v. Bd. of Supervisors, 199 N.W.2d 139, 140 (Iowa 1972) (involving negligence claim arising from pollution of a farm pond); Bloodgood v. Organic Techs. Corp., No. 99-0755, 2001 WL 98656, at *1 (Iowa Ct. App. Feb. 7, 2001) (involving negligence claim, inter alia, arising from operation of a compost facility); Schlichtkrull v. Mellon-Pollock Oil Co., 301 Pa. 560, 152 A. 832, 832 (Pa. 1930) (involving negligence claim arising from injuries resulting from pollution of house well).
Trespass ordinarily requires a showing of actual interference with a party's exclusive possession of land including some observable or physical invasion. See Ryan, 232 Iowa at 603, 4 N.W.2d at 438 (noting distinction between trespass and nuisance); see also Borland v. Sanders Lead Co., 369 So.2d 523, 525 (Ala. 1979) (trespass involving lead particulates and sulfoxide deposits); Lunda v. Matthews, 46 Or.App. 701, 613 P.2d 63, 65-66 (Or. Ct. App. 1980) (trespass caused by dust); Bradley v. Am. Smelting & Ref. Co., 104 Wn.2d 677, 709 P.2d 782, 784, 792 (Wash. 1985) (holding intentional deposit of microscopic particulates from copper smelter could give rise to trespass claim). Perhaps the most cited, relatively recent, trespass cases in the air pollution context arise from fluoride emissions
in Washington and Oregon. See generally Lampert v. Reynolds Metals Co., 372 F.2d 245 (9th Cir. 1967); Reynolds Metals Co. v. Lampert, 316 F.2d 272, rev'd in part 324 F.2d 465 (9th Cir. 1963); Arvidson v. Reynolds Metals Co., 236 F.2d 224 (9th Cir. 1956); Fairview Farms, Inc. v. Reynolds Metals Co., 176 F.Supp. 178 (D. Or. 1959); Martin v. Reynolds Metals Co., 221 Ore. 86, 342 P.2d 790, 791 (Or. 1959).
As with nuisance claims, these common law causes of action have a deep legal tradition that find their roots well into the past and extend to the present day. See Patrick J. Kelley, Restating Duty, Breach, and Proximate Cause in Negligence Law: Descriptive Theory and the Rule of Law, 54 Vand. L. Rev. 1039, 1056-63 (2001); George E. Woodbine, The Origins of the Action of Trespass, 34 Yale L.J. 343, 343-44 (1925); George E. Woodbine, The Origins of the Action of Trespass, 33 Yale L.J. 799, 799-800 (1924).
3. Advent of the " age of statutes. "
While state common law actions to address environmental problems may be well-established, reliance solely on common law to control pollution proved inadequate. Because the common law only settled disputes on a case-by-case basis, coverage was hit and miss. Further, bringing common law actions was expensive, and many potential plaintiffs simply could not afford to bring actions against well-heeled defendants. In addition, requirements of standing, causation, and proof of damages often made success in common law actions difficult. See Malone § 10:2, at 10-19. Finally, the 1960s and 1970s saw dramatic increases in the amount and extent of pollution. Through broadcast television, viewers watched as the Cuyahoga River caught fire, acid rain poured on the Northeast region, and many American cities experienced severe smog. See Lowell E. Baier, Reforming the Equal Access to Justice Act, 38 J. Legis. 1, 12-13 (2012) (describing " [e]nvironmental disasters in the 1960's and 1970's . . . [that] gave rise to . . . environmentalism" ).
As a result, the 1960s and 1970s saw the development of significant statutory approaches to pollution. See Arnold W. Reitze, Jr., The Legislative History of U.S. Air Pollution Control, 36 Hous. L. Rev. 679, 696-711 (1999) [hereinafter Reitze]. The CAA was originally enacted in 1963. Id. at 698. It has since been substantially amended numerous times. See Arnold W. Reitze Jr., A Century of Air Pollution Control Law: What's Worked; What's Failed; What Might Work, 21 Envtl. L. 1549, 1588-1612 (1991); Reitze, 36 Hous. L. Rev. at 699, 702-29.
Each subsequent amendment increased the scope and complexity of the effort to control air pollution. See Reitze, 36 Hous. L. Rev. at 699-729. In particular, in 1990 Congress enacted major amendments to the CAA. See Craig N. Oren, The Clean Air Act Amendments of 1990 : A Bridge to the Future?, 21 Envtl. L. 1817, 1817, 1828, 1832 (1991). As noted by one commentator, since 1970, " the EPA has created a vast regulatory structure to control the emission of air pollutants, including technological standards, health standards, risk levels, and enforcement provisions, completely transforming what was once the province of state law." Alexandra B. Klass, State Innovation and Preemption: Lessons from State Climate Change Efforts, 41 Loy. L.A. L. Rev. 1653, 1686 (2008).
The CAA is undoubtedly complex. By way of general overview, the CAA embraces what has been called a " cooperative
federalism" model. See Bell v. Cheswick Generating Station (Bell II), 734 F.3d 188, 190 (3d Cir. 2013) (" [The CAA] employs a 'cooperative federalism' structure under which the federal government develops baseline standards that the states individually implement and enforce." ). With respect to ambient air quality, the CAA directs the EPA to set national ambient air quality standards (NAAQS) for pollutants in ambient air considered harmful to the public health and welfare. See 42 U.S.C. § 7409(a)-(b). The NAAQS are further divided into primary NAAQS and secondary NAAQS. Id. § 7409(b). The primary NAAQS are intended to protect public health, while the secondary NAAQS are intended to protect the surrounding environment. Id. They are often, though not always, the same. See, e.g., 40 C.F.R. pt. 50 (2013); U.S. Envt'l Prot. Agency, National Ambient Air Quality Standards (NAAQS), http://www.epa.gov/air/criteria.html (last updated Dec. 14, 2012) (chart detailing primary and secondary NAAQS levels). States are required to develop state implementation plan(s) (SIP) that employ pollution reduction methods to meet the NAAQS. Id. § 7410(a)(1). The states, however, are free to adopt more stringent requirements if they choose to do so. Id. § 7416. Each state's SIP must include a mandatory permitting program for all stationary sources limiting the amounts and types of emissions each source is allowed to discharge. Id. § 7661a(d)(1). Before new construction or modifications may be made to a source of emissions, the SIP must provide for " written notice to all nearby States the air pollutions levels of which may be affected by such source at least sixty days prior to the date on which commencement of construction is to be permitted." Id. § 7426(a)(1)(B). See generally North Carolina ex rel. Cooper v. Tenn. Valley Auth. ( TVA ), 615 F.3d 291, 299-300 (4th Cir. 2010) (providing overview of the CAA's management of emissions through NAAQS, SIP, permit programs, and 42 U.S.C. § 7426(a)(1)); Her Majesty the Queen v. City of Detroit, 874 F.2d 332, 335 (6th Cir. 1989) (describing basic requirements for SIP, including permit programs).
4. Differences between common law and regulatory regimes.
The CAA and Iowa Code chapter 455B address the overall quality of air that we all breathe and provide a regulatory framework focused on prevention of pollution through emissions standards designed to protect the general public. While civil money penalties may be imposed for violations of the CAA, the CAA does not provide damage remedies to harmed individuals. See 42 U.S.C. § 7604. In contrast, the common law focuses on special harms to property owners caused by pollution at a specific location. See Alice Kaswan, The Domestic Response to Global Climate Change: What Role for Federal, State, and Litigation Initiatives?, 42 U.S.F. L. Rev. 39, 102-03 (2007). As a result, through common law actions, victims may obtain compensatory damages, punitive damages, and injunctive relief. See id. In sum, statutes deal with general emissions standards to prospectively protect the public, while common law actions retrospectively focus on individual tort remedies for owners of real property in particular locations for actual harms. As noted by commentators:
[C]ommon law controls are based on property rights, are location specific, and provide remedies to rightholders for real harms. Federal regulation, on the other hand, is all encompassing, provides no specific protection to rightholders, and offers no remedies for damages that rightholders may sustain . . . [t]he two approaches are truly different and therefore, cannot be compared as though they were quite similar.
Roger E. Meiners, Stacie Thomas, & Bruce Yandle, Burning Rivers, Common Law, and Institutional Choice for Water Quality, in The Common Law and the Environment: Rethinking the Statutory Basis for Modern Environmental Law 54, 78 (Roger E. Meiners & Andrew P. Morriss eds., 2000); see also 6 Frank P. Grad, Treatise on Environmental Law § 18.02, at 18-5 (2001) [hereinafter Grad] (" A rather clear division of labor has developed between litigation to protect the public interest under federal and state statutory law, and the protection of individual, private interests through common law, frequently tort actions." ); Daniel P. Selmi & Kenneth A. Manaster, State Environmental Law § 2:2, at 2-12 to 2-13 (2012) [hereinafter Selmi] (noting that even citizen suits under environmental statutes do not ordinarily provide a damage remedy and that injunctive relief in common law actions can take into account specific facts of the case).
The differences in the statutory and common law regimes are demonstrated by what must be shown to establish a violation. A party seeking to establish a violation of the statutory regime does not need to demonstrate the presence of a nuisance. See, e.g., Pottawattamie County v. Iowa Dep't of Envtl. Quality, 272 N.W.2d 448, 454 (Iowa 1978) (holding violation of fugitive-dust rule does not require showing of public nuisance). Conversely, many cases have held that a party seeking to show a nuisance is not required to show a violation of some other law. See, e.g., Galaxy Carpet Mills, Inc. v. Massengill, 255 Ga. 360, 338 S.E.2d 428, 429 (Ga. 1986) (permitting nuisance action related to pollution caused by coal-fired boilers even though owner had obtained environmental permits); Urie v. Franconia Paper Corp., 107 N.H. 131, 218 A.2d 360, 362-63 (N.H. 1966) (permitting private nuisance action for pollution even though defendant complied with state environmental laws); Tiegs v. Watts, 135 Wn.2d 1, 954 P.2d 877, 883-84 (Wash. 1998) (finding defendant could be held liable for nuisance even though defendant had permit from department of ecology). See generally 58 Am. Jur. 2d Nuisances § 395, 873-74 (2012) (" A governmental license does not carry with it immunity for private injuries that may result directly from the exercise of the powers and privileges conferred." ). Similarly, compliance with statewide air pollution regulations does not shield a defendant from trespass liability. Cf. Borland, 369 So.2d at 526-27 (holding compliance with Alabama's air pollution control law does not shield a defendant from trespass liability).
Thus, a property owner seeking full compensation for harm related to the use and enjoyment of property at a specific location must resort to common law or state law theories to obtain a full recovery. Cf. Md. Heights Leasing, Inc. v. Mallinckrodt, Inc., 706 S.W.2d 218, 221-22, 224, 226 (Mo. Ct. App. 1985) (discussing available damages and relief for claims based on nuisance, negligence, and trespass theories). In addition, the common law offers the prospect of creative remedies, such as paying for clean-up costs or creation of a common law fund for compensation or restoration. See Czarnezki, 34 B.C. Envtl. Aff. L. Rev. at 27-35.
B. Positions of the Parties.
1. Plaintiffs. The plaintiffs begin their attack on the district court's ruling by suggesting that we are required to approach the issue of federal preemption of state law with skepticism. They point to the well-established history of common law claims. They further note that several statutory provisions of the CAA demonstrate that Congress did not intend to
preempt state common law actions. Turning to the caselaw, the plaintiffs argue that the reasoning in International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987), is applicable here and not the reasoning in AEP.
The plaintiffs note that there is no express preemption of state law causes of action in the CAA. As a result, any preemption of state law arises by implication only. According to the plaintiffs, such implied preemption is strongly disfavored and ordinarily to be avoided unless absolutely necessary. Cf. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947) (" [W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." ).
Citing the language of the CAA, the plaintiffs note that the " any measures" clause demonstrates that the states retain broad authority over air pollution. Specifically, the any measures clause states: " [t]he reduction or elimination, through any measures, of the amount of pollutants produced or created . . . and air pollution control [measures] at its source is the primary responsibility of States and local governments." 42 U.S.C. § 7401(a)(3) (emphasis added). The plaintiffs contend that the plain language of the statute authorizes the states to reduce pollution through any measures, which include nuisance and common law claims.
The plaintiffs next draw our attention to the " citizens' rights" savings clause in the CAA, which in relevant part provides:
Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).
Id. § 7604(e). The plaintiffs argue that the language of the citizens' rights savings clause demonstrates congressional intent not to preempt state statutory or common law claims related to air pollution.
The plaintiffs further cite another savings clause in the CAA entitled " Retention of State authority," which in relevant part provides:
Except as otherwise provided . . . nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any ...