Academic journal article The Review of Litigation

Into Thin Air: Unconstitutional Taking by Preemption of State Common Law under the Clean Air Act

Academic journal article The Review of Litigation

Into Thin Air: Unconstitutional Taking by Preemption of State Common Law under the Clean Air Act

Article excerpt

I. INTRODUCTION TO THE CLEAN AIR ACT .................... 714

A. The Clean Air Act Is a Comprehensive Regulatory Scheme .................... 714

B. Civil Actions Authorized by the Clean Air Act .................... 716

C. The Savings Clause of the Clean Air Act .................... 716

II. PREEMPTION OF FEDERAL COMMON LAW BY THE CLEAN AIR ACT .................... 717

III. PREEMPTION OF STATE COMMON LAW BY THE CLEAN AIR ACT .................... 719

A. Comer v. Murphy Oil .................... 720

B. Bell v. Cheswick .................... 721

IV. THE CHESWICK RULING CREATES AN UNCONSTITUTIONAL TAKING .................... 723

A. In Cheswick, the Government Imposed an Easement on Nearby Property .................... 723

B. The Government's Taking in Cheswick Is Per Se Unconstitutional .................... 725

V. TOTAL PREEMPTION OF STATE COMMON LAW WILL CREATE MANY MORE TAKINGS CLAUSE VIOLATIONS .................... 726

A. The Facts of Cheswick Are Common .................... 727

B. A Takings Clause Violation Is Likely Even Without Particulate Deposits .................... 727

1. Deprivation of All Economically Viable Use: Lucas v. South Carolina .................... 728

2. The Penn Central Test .................... 729

3. Nontrespassory Permanent Physical Occupation: Bormann v. Board of Supervisors .................... 732

VI. THE OUELLETTE ALTERNATIVE .................... 733

A. Total Preemption of Common Law Would Disrupt the Clean Air Act's Regulatory Framework .................... 733

B. Total Preservation of Common Law Would Disrupt the Clean Air Act's Regulatory Framework .................... 735

C. Courts Should Adopt the Rule in Ouellette for the Clean Air Act...................................................................736

VII. CONCLUSION...........................................................................738

"Where has the Court left us?"1 Since the Supreme Court's June 2011 American Electric Power Co., Inc. v. Connecticut decision, many legal scholars have been attempting to answer that very question.2 In American Electric, the Court ruled that the Clean Air Act preempts federal common law claims.3 However, the Court was silent on the extent of the preemption, particularly whether the Act also preempted state common law claims.4 Over a year later, the question remains largely unanswered.5

Recently, two federal district courts penned the first judicial decisions since American Electric to consider the issue of state common law preemption; both ruled that the Clean Air Act preempts both federal and state common law.6 The most recent, Bell v. Cheswick, will be the focus of this Note. Although neither the litigants nor the district court addressed the issue, this Note will show that the facts of Cheswick demonstrate a previously unexplored aspect of Clean Air Act preemption-the Fifth Amendment's Takings Clause.7

If the Clean Air Act preempts both state and federal common law claims, then fact patterns similar to Cheswick create Takings Clause violations. Further, this Note will demonstrate that this problem frustrates the underlying rationale for total preemption in Cheswick. Therefore, instead of preempting all common law claims, courts should adopt a compromise that preempts some, but not all, state common law claims.8

Part I of this Note will survey provisions of the Clean Air Act that are particularly important to the forthcoming analysis. It will demonstrate the overall complexity of the Clean Air Act's regulatory system and briefly explore the Act's savings clause as well as various civil actions authorized by the Act.9

Part II explores the reasoning of the American Electric opinion. It surveys the jurisprudence that led to the decision, and examines how the Court applied that jurisprudence-especially cases dealing with the Clean Water Act-to the Clean Air Act. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.