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Ouellette v. International Paper Co.

ELR Citation: 18 ELR 20061
Nos. No. 78-163, 666 F. Supp. 58/26 ERC 1733/(D. Vt., 08/03/1987) On remand to consider CAA claims

The court holds that the Clean Air Act does not preempt property owners' state law nuisance claim against an out-of-state company for alleged air pollution damages from the company's pulp and paper mill, and the law of the source state applies. Plaintiffs, Vermont property owners along interstate Lake Champlain, had filed two nuisance causes of action against the New York paper company, one alleging property damage under the Federal Water Pollution Control Act (FWPCA) and the other under the Clean Air Act. The court previously ruled, 15 ELR 20377, that the FWPCA authorizes actions to redress injuries caused by pollution of interstate waters under the common law of the state in which the injury occurred, and the Second Circuit affirmed, 16 ELR 20012. The Supreme Court ruled that the FWPCA does not prohibit Vermont citizens from maintaining a tort action against out-of-state polluters in Vermont courts, but the law of the source state must be applied, 17 ELR 20327. The court now considers plaintiffs' second cause of action and rules that the Clean Air Act does not bar plaintiffs' state common-law action for interstate air pollution. The court rejects defendant's argument that the Clean Air Act's savings clause, §304(e), could not have preserved state nuisance claims because at the time it was passed federal law applied to interstate disputes. The Supreme Court cases cited for this premise are inapposite, since those decisions involved states filing actions under the Court's original jurisdiction and invoking federal common law to obtain relief from interstate pollution. Federalism precluded the state sovereigns from resorting to state law, and the Court was concerned that the states might not otherwise have a forum. On the other hand, state law has always been available to private parties to resolve interstate disputes for property damage. The court rules that the law of the source state should apply in private interstate air disputes, concluding that this approach will provide injured citizens in the nonsource state the same rights against the polluter as citizens in the polluter's state would have.

The court holds that two settlement agreements, arising out of related litigation brought under the Supreme Court's original jurisdiction and involving the paper company, the states of Vermont and New York, and the federal government, do not bar plaintiffs' air claims since the agreements expressly preserved the rights of Vermont citizens to sue. The court also holds that the agreements do not have the status of a compact.

Counsel for Plaintiffs
Peter Langrock, Emily Joselson
Langrock, Sperry, Parker & Wool
15 S. Pleasant St., P.O. Drawer 351, Middlebury VT 05753-0351
(503) 224-6356

Counsel for Defendant
Spencer Knapp
Dinse, Erdmann & Clapp
209 Battery St., Burlington VT 05402
(802) 864-5751

Roy Reardon, Robert Bourque, Jennifer Manley, Martha Wolfe
Simpson, Thacher & Bartlett
One Battery Park Plaza, New York NY 10004
(212) 483-9000