Article Title

Policing Federal Supremacy: Preemption and Common Law Damage Claims as a Ceiling Regulatory Floor


Sam Kalen


This Article challenges conventional accounts of whether those who drafted the 1970 Clean Air Act intended to preempt state common law claims for nuisance. Neither those who advance robustly deploying the common law to arrest air emissions nor, conversely, those who claim that common law suits would disrupt the air regulatory program appreciate the dynamic that occurred when Congress confronted the Nation’s air pollution problem and crafted the first modern U.S. environmental laws. Yet that dynamic is essential to understanding the Clean Air Act’s “citizen suit” provision and Congress’s decision to preserve certain state common law claims. This Article explains how Congress rejected the post-New Deal attack on expert agency administrators and correspondingly stopped shy of accepting Professor Joseph Sax’s vision for citizen suits—a vision influenced by pervasive dialogues about participatory democracy that left the savings clause in the citizen suit provision clouded amid converging doctrines. This Article argues that this history establishes (1) that Congress unquestionably sought to preserve state common law damage claims and (2) that common law claims for equitable relief are preserved if the state regulatory agency explicitly accepts the continued vitality of such claims or if the activity is not otherwise regulated under the Clean Air Act.