sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

In recent years, plaintiffs have increasingly asserted public and private nuisance theories in cases seeking damages and remedies to address alleged environmental harms, despite the fact that the defendant was in compliance with relevant federal law—and in particular, the Clean Air Act (CAA). Defendants have opposed these suits on multiple grounds, including arguing the CAA preempts these common law claims. Most prominently, in American Elec. Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), the Supreme Court held the CAA displaced public nuisance claims under federal common law, but left open the question whether the Act would similarly limit state common law tort claims. Last year, in Bell v. Cheswick Generating Station, 734 F. 3d 188 (3rd Cir. 2013), the U.S. Court of Appeals for the Third Circuit addressed the issue, holding the CAA did not preempt state common law claims of the source state. It now appears that the Sixth Circuit will get into the act, as the district court certified an interlocutory appeal in Merrick v. Diageo Americas Supply, (W.D. Ky. June 12, 2014), where, like Cheswick, the court had held the CAA does not preempt source state common law tort claims.

Recently, a unanimous panel of the Seventh Circuit weighed in on a similar but somewhat different variation on the theme of claims for public and private nuisance in Michigan, et al. v. United States Army Corps of Engineers, et al. (No. 12-3800). There, the court determined that governmental agencies may be subject to public nuisance suits despite maintaining a waterway as authorized by federal statute, but ultimately dismissed the suit after finding that Asian Carp are not an imminent threat to the Great Lakes.

Asian carp were first introduced to southern United States farms in the 1970s as a potential solution for unwanted plant growth, but spread to open freshwater systems following regional flooding, eventually making their way to the Mississippi River. In Michigan, five Great Lakes states and an Indian tribe (the “States”) asserted two invasive species of Asian carp have migrated up the Mississippi River and are poised to invade the Great Lakes from a series of canals and channels known as the Chicago Area Waterway System (CAWS”). The States filed suit against the U.S. Army Corps of Engineers (the “Corps”) and the Metropolitan Water Reclamation District of Greater Chicago (the “District”), the two agencies tasked with controlling the CAWS, alleging claims under federal common law public nuisance and the Administrative Procedures Act (“APA”), 5 U.S.C. § 702. The States sought injunctive relief requiring the Corps and District to develop and implement a hydrological separation, a physical barrier preventing any water passage between Lake Michigan and the Mississippi River, and to take other interim steps to prevent the invasion of Asian carp.

The Seventh Circuit first encountered the case in 2011 when it heard the States’ appeal of the district court’s denial of preliminary injunctive relief. That decision (“Asian Carp I”) concluded that sovereign immunity did not bar the suit under the APA but did not reach the question of whether a federal-common law public nuisance claim may be asserted against the federal government. On remand, the district court dismissed the complaint, finding the District and Corps could not have caused a public nuisance because “maintenance of the hydrological connection between CAWS and Lake Michigan is not only lawful, it is also specifically authorized, and in fact required, by statute” under the Rivers and Harbors Act, 33 U.S.C. § 401. Slip Op. at 10.

In the Michigan decision, the Seventh Circuit ultimately agreed with the district court’s conclusion but presented a different analysis. The court first considered the question previously raised in Asian Carp I: whether it is possible to state a claim for public nuisance against the federal government. Noting that the identity of the actor bears little relevance to the goal of public nuisance doctrine—to “protect the interests of the public against harms created by an actor’s conduct that impinges on a public right”—the court rejected the argument that all actions of a federal agency reflect the public interest. In reaching this conclusion, the court distinguished between activities “commanded or authorized by statute” or quasi-legislative tasks such as rulemaking, which necessarily reflect the public interest and “cannot be unreasonable intrusions on a public right,” and agency action that “reflects only the agency’s choice of a particular course of action.” Slip op. at 17 (emphasis in original). The latter category may subject the agency to a public nuisance suit.

The Seventh Circuit then turned to the district court’s opinion. It determined the statutes cited by the district court authorized the District and Corps to maintain a hydrological connection between CAWS and Lake Michigan but did not require it. While the defendants are authorized by law to maintain the waterway, they are not authorized to operate it in a manner that will cause Asian carp to invade the Great Lakes, as alleged by the States. Slip Op. at 21 (“Just as a speed limit of 65 does not authorize a highway user to rear-end the stopped car in front of her during a traffic jam, the authority to run a navigable waterway does not authorize the Corps to permit the passage of invasive species to a body of water that would suffer severe adverse consequences as a result.”) The statutes alone are therefore not sufficient grounds for dismissal.

Even so, the Seventh Circuit affirmed the district court’s dismissal, holding the States failed to show the defendants’ current methods of operating the CAWS will permit the migration of Asian carp to advance. Rather, the court found the Corps and District are diligently investigating the Asian carp problem and potential solutions and the court was hesitant to substitute its opinion for the expertise of the Corps in selecting and implementing a particular remedy. The court concluded that the States may have additional remedies to the extent they can demonstrate the Corps has failed to comply with its statutory obligations, or if at some point progress towards a solution stalls, but the court had no opinion on the merits of these claims.

Whether and how this decision, which was focused on claims against a government agency, might impact claims against private parties remains to be seen. The court’s language emphasizing the fact that the mere authorization to operate lawfully does not foreclose a nuisance claim certainly could be cited by plaintiffs pursuing such a claim. On the other hand, a court could distinguish the analysis, as private party defendants are typically authorized to operate within specific parameters, which apparently was not the case here. These are issues that bear watching, as courts will no doubt be asked to continue to wrestle with nuisance claims in a variety of contexts.