Many legal hurdles confront plaintiffs who assert common law public nuisance claims against energy companies in an effort to curtail their production of greenhouse gases (GHG’s). These include standing, political question, the dormant commerce clause, and federal preemption. This paper explores federal preemption of common law public nuisance claims by the Clean Air Act (CAA) and concludes that such common law claims remain viable. The Supreme Court’s ruling in International Paper Co. v. Ouellette, 479 U.S. 481 (1987) (Ouellette), combined with the textual, structural, and schematic similarities between the Clean Water Act (CWA) and the CAA, form the basis for a convincing argument that the CAA does not preempt source-state common law public nuisance claims against source-state emitters of GHG’s.
Alves, Thomas J., "There’s Still a Chance: Why the Clean Air Act Does Not Preempt State Common Law Despite the Fourth Circuit’s Ruling in North Carolina v. TVA" (2013). Hofstra Law Student Works. 1.