ELR Citation: ELR 20375
No(s). s. A-92-CA-305, -381 (W.D. Tex. Jul 10, 1992)

The court rules that the Clean Air Act (CAA) does not preempt state common-law tort claims against a stationary source of air pollution. Plaintiffs alleged that defendants owned, controlled, and operated a large, multi-tank storage facility for gasoline, petroleum, and other fuel products. Plaintiffs further alleged that defendants were grossly negligent in allowing toxic substances to escape from the facility causing contamination of the plaintiffs' property. The court rules that the CAA does not preempt state common-law claims because the CAA expressly allows more stringent state regulation of stationary sources. The preservation of state common-law nuisance actions is implicit in the U.S. Supreme Court's decision in International Paper Co. v. Ouellette, 17 ELR 20327, which construed the Federal Water Pollution Control Act's state-law savings clause, a provision similar to the CAA's savings clause. The court finds that the legislative history of the 1990 CAA Amendments supports the interpretation that Congress, in enacting various environmental laws, intended to establish a federal baseline that state law must meet and may exceed. Holding that the CAA preempts purely private state-law causes of actions for damages would preclude relief for any person who can prove the elements of the common-law claims, which would not further the CAA's goals. The court notes that the CAA does not provide similar or comparable remedies to what the plaintiffs seek in their common-law actions for damages. The only remedies provided by the CAA are enforcement of the Act's standards and civil penalties for violation of such standards. Any civil penalties would not go to the plaintiffs, but to the U.S. Treasury or a special fund for beneficial mitigation projects. Additionally, the court cannot impose such a civil penalty in excess of $100,000 in any action under CAA §304. The court then separates this consolidated action from a similar action and remands them to state court. The court orders the defendants to pay reasonable attorney fees and costs incurred by the plaintiffs as a result of the removal.

Counsel for Plaintiffs
George H. Nelson, Mark C. Hall
Nelson & Hall
1501 Ave. K, Lubbock TX 79401
(806) 765-7788

Counsel for Defendants
Walter H. Mizell
Brown, McCarroll, Oaks & Hartline
1400 Franklin Plaza
111 Congress Ave., Austin TX 78701
(512) 472-5456

William K. Wilde
Bracewell & Patterson
2900 S. Tower Pennzoil Pl., Houston TX 77002
(713) 223-2900