Companies and landowners in Louisiana sometimes violate federal, state and local environmental laws that regulate the discharge of toxic wastes and other pollutants into the environment, and Louisiana has had a notorious reputation for being amongst one of the worst states at enforcing federal clean air, clean water and hazardous waste laws. It is well known that exposure to environmental hazards can cause disability and death to those exposed. These illnesses and disabilities are considered environmental injuries.
Last month, a court decision from our neighboring state in Alabama recently held that the clean air act does not completely preempt state [common] law claims. In the case of Morrison v. Drummond Co (N.D. Ala.) a mail carrier sued the Drummond Company in state court alleging that the exposure to benzene emissions from their plaint caused his leukemia. The defendant then sought removal to federal court, arguing that the Clean Air Act (CAA) completely preempted state common law claims (citing primarily AEP v. Connecticut). The district court remanded the case back to state court, finding CAA did not completely preempt state law claims, and noting that the Supreme Court in AEP v. Connecticut addressed only federal common law preemption, reserving the question of state common law preemption. If appealed, the case would then go to the federal circuit court and subsequent case law would be binding to all the states in the 5th circuit (Texas, Alabama, Louisiana, and Mississippi). Additionally, other courts have held that the CAA does not preempt state common law claims. See Bell v. Cheswick (3rd. Cir.) and Freeman v. Grain Processing Corporation (Iowa).
How the Clean Air Act (CAA) Relates to State Clean Air Laws
The CAA provides no means for an aggrieved party to seek compensatory damages from a polluter such as the Drummond Company under any circumstances except through its savings clause. See 42 U.S.C. § 7604(a),(e) (2006) (providing the right to citizen suit enforcement but no right to compensatory damages except through common law). This means that Congress largely left unaddressed the remedies that a plaintiff may seek for harm caused by pollution, so courts have traditionally addressed personal injury damages under the CAA through the common law, operating under the conventional notion that CAA claims are preempted.
The CAA also contemplates that states will implement many of its requirements under state laws, and that the EPA will review such laws to ensure sufficiency. The Louisiana Department of Environmental Quality is then tasked with enforcing all the federal and state environmental regulations, and state regulations are laid out in Title 30 of the Louisiana Revised Statutes. However, taken together, the recent decisions indicate that plaintiffs have a new means to seek remedies for harms caused from toxic exposures (including compensatory damages) that the CAA does not provide. This would open up the door to claims under the state common law nuisance, negligence and recklessness, and trespass laws.
Legal Representation in Toxic and Chemical Exposure Cases
Harrell & Nowak represents people who have been injured by the pollution and release of toxic chemicals in the air, soil, and water. These releases can be from explosions, leaks, spills, or fires. Eric Nowak and Shirin Harrell have been appointed by the Court as class counsel in a large environmental class action case in Orleans Parish involving the release of a toxic chemical. We have recovered millions of dollars in settlements and verdicts on behalf of clients, and a success rate of 90% in our litigation. If you have fallen ill because of toxic chemical exposure, contact the lawyers at our New Orleans firm, also serving Metairie, Kenner, and nearby communities.