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The brief was filed in the U.S. Supreme Court in 2014 on behalf of twelve trade associations as amicus parties.  This extraordinarily diverse group was organized by the National Association of Manufacturers and includes an extremely wide variety of interests and industries.  The brief supports a writ of certiorari filed by GenOn Power Midwest, L.P., which seeks the reversal of a decision by the Third Circuit, which held that the federal Clean Air Act does not preempt public nuisance lawsuits based on state common law against facilities that emit air pollution — even if the facilities are in complete compliance with existing permits under the Act.

In an earlier case, the Supreme Court decided that the Clean Air Act displaced nuisance lawsuits under federal common law, but expressly reserved preemption of state common lawsuits for later decision.  Presently, the Third and Fourth Circuits have reached different conclusions on the issue, so granting certiorari in this case is a logical “next step” to clarify whether state or federal courts can entertain public nuisance lawsuits as an alternative or supplemental regulatory vehicle.  The brief argues that allowing ad hoc common law actions to vary the terms of permits issued by the EPA under the Clean Air Act will compromise the reliability, predictability, and finality of the Act’s permitting programs.  Also undermined will be the “cooperative federalism” structure of the Act by threatening the collaborative regulatory program between federal and state regulators.  As a result, public nuisance actions are inconsistent with the Clean Air Act and must be preempted.