Is Nuisance Litigation Undermining the Clean Air Act's Preemptive Economic Purpose?

摘要

As a result of their failure to conduct proper conflict preemption analyses, the Merrick, Freeman, and Bell courts failed to evaluate the impact of nuisance litigation on Congress's purposes. Although the CAA certainly mandated improvements in air quality, that goal was not addressed in a vacuum. Congress also insisted that improvements be made consistently with economic growth and predictable standards. The CAA's permit- ting system was designed to effectuate Congress's intentions by creating and sustaining a "level playing field" that balanced those priorities. Although the text of the CAA demonstrates these conjoined goals, and the history of their application demonstrates their efficacy, the Merrick, Freeman and Bell decisions failed to appreciate their importance. As a result of this "cart before the horse" reasoning, Merrick, Freeman and Bell erroneously allowed common law remedies to trump Congress's economic purposes in the CAA. If courts are permitted to adjust federally permitted emissions under state common law, their judgments will disrupt the competitive balance the CAA was created to ensure. In such proceedings, the competitive balance struck by administrative agencies can be "reopened" and "reexamined" de novo. If the "level playing field" mandated by Congress can be tilted unilaterally by individual courts throughout the nation, those decisions will compromise the CAA's cooperative regulatory structure. There is no assurance that tribunals presiding over nuisance actions will apply the same criteria, consider the same evidence, or reach the same conclusions regarding the "reasonableness" of a defendant's emissions. Indeed, there is no guarantee that state tort law will even allow courts to consider economic feasibility and competitive impacts in their liability and damage determinations. Nothing in the CAA remotely contemplates such confounding consequences, but they are entirely foreseeable if the Supreme Court does not act to reverse the economically destructive reasoning embraced by Merrick and similar decisions. It is time to recognize the primacy of Congress's preemptive economic purpose -and to protect the economic equilibrium ensured by the CAA's permitting programs from common law disruption.